An Examination of the At-Will Employment Doctrine

This article is from the August 2005 issue.

By George K. Pitchford, Esq.

From time to time a fairly obtuse legal concept crosses the bridge between the law and reality and enters the mainstream. This usually occurs during the latest ‘trial of the century’, when some obscure legal point becomes the major focus of the media, and an everyday topic of conversation. I cannot explain how disconcerting it is as an attorney, when someone waiting in line for the bus clearly knows more about the use of DNA in criminal prosecutions then I did the day after my criminal law final exam because of the O.J. trial.

One such concept that is slowly creeping into the mainstream consciousness is the At-Will Employment Doctrine. Unfortunately, unlike some of the other legal concepts that make this transition, much of what people know about the At-Will Employment Doctrine is learned secondhand from unreliable sources, or whatever limited real world experiences a person may have as an employer or employee. Although an overwhelming majority of Americans are someone’s employer or employee, the At-Will Employment Doctrine never has, and probably never will, garner the same amount of mainstream attention as other more sensationalistic and popular legal concepts and topics like freedom of speech, abortion or even who will be the next Supreme Court Justice.

This approach towards understanding the At-Will Employment Doctrine coupled with the overall reluctance of most workers to engage their employers in a serious discussion about their rights in the workplace leads to confusion and sometimes devastating consequences. As an employment law attorney, at least once a week I have to explain to a displaced worker why, in spite of the fact they were discharged because their supervisor “had it out for them,” they have no real legal recourse because they are considered an at-will employee. Therefore, it is my sincere belief that anyone, regardless of profession, who is either an employer or an employee should at least have a basic understanding of what is the At-Will Employment Doctrine, and what rights employers and employees have under it, particularly since most states have adopted it through the courts, if not by legislation.

First, it should be noted that the At-Will Employment Doctrine is fairly unique to the American employer-employee relationship.1 Most western industrialized nations do not adhere to the rule, and generally afford employees with some form of protection against arbitrary or unfair discharge.2 The legal history of the At-Will Employment Doctrine is no less surprising. According to legal scholars, the At-Will Employment Doctrine is a legal fiction unintentionally invented by Horace C. Wood.3 In his 1877 legal treatise on employment law, entitled Master and Servant, Mr. Wood erroneously cited four cases from around the country that he claimed supported the principle that an employer could discharge an employee at anytime for any reason.4 Mr. Wood’s error was overlooked, or maybe even ignored by a pro-business judiciary, and courts around the country quickly began adopting the At-Will Employment Doctrine.

Today, whether they know it or not, all employees in the United States are divided into two categories: 1) just-cause employees; or 2) at-will employees. As implied by the name, just-cause employees can only be terminated from their employment for a good reason, and are usually entitled to some form of independent review of the employer’s decision to terminate them.5 At-will employees, on the other hand, can be terminated for any reason, or no reason at all. Quite simply, this means that in an at-will workplace there is no esoteric form of fairness or justice that can be protected or enforced by the courts. In states that recognize the At-Will Employment Doctrine, an employer or supervisor can terminate an employee because they do not like their style of dress, choice of music or maybe even the color of their shirt, and the employee would have no real legal recourse in most instances. Employers have even begun to threaten employees with termination for off duty legal conduct such as smoking.6 Although some of the more extreme tactics by employers have not been tested in the courts, many legal observers believe that such policies will be upheld because of the broad nature of the At-Will Employment Doctrine.

As broad as the At-Will Employment Doctrine is, employers and employees should also understand its limits. Regardless of at-will status, there are certain reasons that an employer can almost never cite as a basis for termination. For instance, an employer could never terminate an employee because of their race, age, national origin, gender or any other trait that is protected by the state and federal laws. Also, most states that have adopted some form of the At-Will Employment Doctrine have carved out certain exceptions in an attempt to promote sound public policy, and protect workers from being exploited. Even the Federal Government has enacted a series of statutes that protect employees who report their employer’s violation of certain federal laws from retaliatory termination.7

In spite of these protections, most workers faced with the stark reality of the At-Will Employment Doctrine are uncomfortable with the arbitrary power it grants their employer over their livelihood. My advice to most at-will employees is to try and open up a dialogue with their employer, who may be willing to consider some different alternatives. It is important to note that in most states an employee’s at-will status can be modified by an employment contract mutually consented to by the employer and employee. Consequently, employees uncomfortable with their at-will status may want to attempt to negotiate some sort of employment agreement with their employer that gives them some measure of job security.8

Of course, employees also always have the option of forming a union and collectively bargaining with their employer. Besides pay, one of the most important subjects covered by most collective bargaining agreements is union members’ status as just-cause employees. This ensures that an employee will have some form of recourse, which usually includes an independent review of the employer’s decision, if an arbitrary decision is made regarding the terms and conditions of their employment.

Regardless of what steps an employer or employee decide to take, they should always be aware of their rights. Therefore, I highly recommend anyone who feels they have been unjustly terminated, regardless of their employment status, seek the advice of an experienced employment law attorney to review their situation.

Further Reading

Muhl, Charles J. 2001. The Employment-At-Will Doctrine: Three Major Exceptions. Monthly Labor Review, January 2001: 3-11.

References

  1. See generally, Samuel Estreicher, Unjust Dismissal Laws, 33 American Journal of Comparative Law 310 (1985). See also Daniel A. Mathews, Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings Law Journal 1435, 1447, n.54 (1975).

  2. Id.

  3. SeeMagnan v. Anaconda Industries, Inc., 479 A.2d 781, 784, n.8 (Conn. 1984) (“Scholars and jurists unanimously agree that Wood’s pronouncement in his treatise, Master and Servant § 134 (1877), was responsible for nationwide acceptance of the [At-Will Employment Doctrine]. They also agree that his statement of the [At-Will Employment Doctrine] was not supported by the authority upon which he relied, and that he did not accurately depict the law as it then existed.”) See also Toussaint v. Blue Cross & Blue Shield of Michigan, 292 N.W.2d 88, 887, n. 14 (Mich. 1980).

  4. Id.

  5. It should be noted that the three largest classes of just-cause employees are federal and state employees, as well as union members.

  6. Peters, Jeremy. 2005. Company’s Smoking Ban Means Off Hours, Too. New York Times, February 8.

  7. Employees who report their employers violation of the Clean Air Act of 1970; Energy Reorganization Act of 1974; Occupation Safety and Health Act of 1970; Safe Drinking water Act of 1974; Sarbanes-Oxley Act of 2002; Solid Waste Disposal Act of 1965; Toxic Substance Control act of 1970 and the Water Pollution Control Act of 1972 cannot be terminated from their employment in retaliation for their actions. (This list is not meant to be exhaustive of federal statutes that prohibit retaliation against employees.)

  8. I would strongly suggest that an employee makes sure that such an agreement is in writing and signed by someone with the authority to change his or her employment status.

Mr. Pitchford is an attorney at Floyd Allen & Associates, a labor and employment law firm in Detroit, Michigan. Mr. Pitchford would like to thank and acknowledge Ms. T. Rose Hatcher, a legal intern at Floyd E. Allen & Associates, who performed the background research for this article.

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