At-will employment is a doctrine of American law The law of the United States consists of many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, the foundation of the federal government of the United States. The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional that defines an employment Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how relationship in which either party can break the relationship with no liability, provided there was no express contract In law, a contract is an agreement between two or more parties which, if it contains the elements of a valid legal agreement, is enforceable by law or by binding arbitration. A legally enforceable contract is an exchange of promises with specific legal remedies for breach. These can include compensatory remedy, whereby the defaulting party is for a definite term governing the employment relationship and that the employer does not belong to a collective bargain (i.e., has not recognized a union A trade union or labor union (American English) is an organization of workers who have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members (rank and file members) and negotiates labor contracts (collective bargaining) with). Under this legal doctrine:

Several exceptions to the doctrine exist, especially if unlawful discrimination CERD · CEDAW · CDE · ILO C111 · ILO C100 · ILO C169 · Protocol No. 12 ECHR is involved regarding the termination of an employee.

As a means of downsizing Layoff is the temporary suspension or permanent termination of employment of an employee or a group of employees for business reasons, such as the decision that certain positions are no longer necessary or a business slow-down or interruption in work. Originally the term "layoff" referred exclusively to a temporary interruption in work,, such as closing an unprofitable factory, a company may terminate employees en masse. However, there are legal limitations upon the employer's ability to terminate without reason.^[2]

Origins

The at-will rule has its genesis in a rule in Horace Gray Wood’s 1877 treatise on master-servant relations. Wood cited four U.S. cases as authority for his rule that when a hiring was indefinite, the burden of proof was on the servant to prove that an indefinite employment term was for one year.^[3] In Toussaint v. Blue Cross & Blue Shield of Michigan, the Court noted that "Wood’s rule was quickly cited as authority for another proposition."^[4]

Some courts saw the rule as requiring the employee to prove an express contract for a definite term in order to maintain an action based on termination of the employment.^[5] Thus was born the U.S. at-will employment rule, which allowed discharge for no reason. This rule was adopted by all U.S. states A U.S. state is any one of 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of commonwealth rather than state. State citizenship is. It was not until 1959 that the first judicial exception to the at-will rule was created.^[6]

Since then, several common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different and statutory Statutory law or statute law is written law set down by a legislature (as opposed to regulatory law promulgated by the executive branch or common law of the judiciary) exceptions to at-will employment have been created. Common-law protects one's job if an employee disobeys an employer on the grounds that the employer ordered him or her to do something illegal or immoral. However, in the majority of cases, the burden of proof remains upon the discharged employee. No U.S. state but Montana has chosen to statutorily modify the employment at-will rule.^[7] In 1987, the Montana legislature passed the Wrongful Discharge from Employment Act (WDEA). The Montana Act is unique in that, although it purports to preserve the at-will concept in employment law, it also expressly enumerates the legal bases for a wrongful discharge action.^[8] Under the WDEA, a discharge is wrongful only if: "it was in retaliation for the employee's refusal to violate public policy or for reporting a violation of public policy; the discharge was not for good cause and the employee had completed the employer's probationary period of employment; or the employer violated the express provisions of its own written personnel policy."^[9]

Public policy exceptions

Under the public policy Public policy can be generally defined as the course of action or inaction taken by governmental entities with regard to a particular issue or set of issues. Other scholars define it as a system of "courses of action, regulatory measures, laws, and funding priorities concerning a given topic promulgated by a governmental entity or its exception, an employer Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how may not fire an employee Employment is a contract between two parties, one being the employer and the other being the employee. An employee may be defined as: "A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how if it would violate the state's public policy doctrine Public policy is the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change over time. Law regulates behaviour either to reinforce existing social expectations or to encourage constructive or a state or federal statute.

This includes retaliating against an employee for performing an action that complies with public policy (such as informing the authorities of an illegal activity, such as nursing home abuse^[10]), as well as refusing to perform an action that would violate public policy.

Specific states

As of October 2000,^[11] forty-three U.S. states and the District of Columbia Washington, D.C. , formally the District of Columbia and commonly referred to as Washington, the District, or simply D.C., is the capital of the United States, founded on July 16, 1790. The City of Washington was originally a separate municipality within the Territory of Columbia until an act of Congress in 1871 effectively merged the City and the recognize public policy as an exception to the at-will rule.^[12]

The 7 states which do not have the exception are:

• Alabama From the American Civil War until World War II, Alabama, like many Southern states, suffered economic hardship, in part because of continued dependence on agriculture. Despite the growth of major industries and urban centers, white rural interests dominated the state legislature until the 1960s, while urban interests and African Americans were
• Georgia Georgia is bordered on the south by Florida; on the east by the Atlantic Ocean and South Carolina; on the west by Alabama and by Florida in the south; and on the north by Tennessee and North Carolina. The northern part of the state is in the Blue Ridge Mountains, a mountain range in the vast Appalachian Mountains system. The central piedmont
• Louisiana Some Louisiana urban environments have a multicultural, multilingual heritage, being so strongly influenced by an admixture of 18th century French, Spanish and African cultures that they are considered to be somewhat exceptional in the U.S. Before the American influx and statehood at the beginning of the 19th century, the territory of current
• Maine The original inhabitants of the territory that is now Maine were Algonquian-speaking peoples. The first European settlement in Maine was in 1604 by a French party. The first English settlement in Maine, the short-lived Popham Colony, was established by the Plymouth Company in 1607. A number of English settlements were established along the coast
• Nebraska Once considered part of the Great American Desert , Nebraska is now a leading farming and ranching state
• New York New York City, which is geographically the largest city in the state and most populous in the United States, is known for its history as a gateway for immigration to the United States and its status as a financial, cultural, transportation, and manufacturing center. According to the U.S. Department of Commerce, it is also a destination of choice
• Rhode Island The State of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island ( /ˌroʊd ˈaɪlɨnd/ or /rɵˈdaɪlɨnd/), is a state in the New England region of the United States. It is the smallest U.S. state by area. Rhode Island borders Connecticut to the west and Massachusetts to the north and east, and it shares a water
• Florida With an area of 65,758 square miles , it is ranked 22nd in size among the 50 U.S. states. Florida has the most coastline in the Contiguous United States encompassing approximately 1,200 miles. The state has four large urban areas, a number of smaller industrial cities, and many small towns - with exception^[13]

Implied contract exceptions

Thirty-seven U.S. states (and the District of Columbia) also recognize an implied contract as an exception to at-will employment.^[11] Under the implied contract exception, an employer may not fire an employee "when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists."^[11] Proving the terms of an implied contract is often difficult, and the burden of proof is on the fired employee. Implied employment contracts are most often found when an employer's personnel policies or handbooks indicate that an employee will not be fired except for good cause or specify a process for firing. If the employer fires the employee in violation of an implied employment contract, the employer may be found liable for breach of contract.

37 US states have an implied-contract exception, thus 13 do not. Those 13 states are:

• Delaware Delaware is located in the northeastern portion of the Delmarva Peninsula and is the second smallest state in area . Estimates in 2007 rank the population of Delaware as 45th in the nation, but 6th in population density, with more than 60% of the population in New Castle County. Delaware is divided into three counties. From north to south, these
• Florida With an area of 65,758 square miles , it is ranked 22nd in size among the 50 U.S. states. Florida has the most coastline in the Contiguous United States encompassing approximately 1,200 miles. The state has four large urban areas, a number of smaller industrial cities, and many small towns
• Georgia Georgia is bordered on the south by Florida; on the east by the Atlantic Ocean and South Carolina; on the west by Alabama and by Florida in the south; and on the north by Tennessee and North Carolina. The northern part of the state is in the Blue Ridge Mountains, a mountain range in the vast Appalachian Mountains system. The central piedmont
• Indiana Indiana has several metropolitan areas with populations greater than 100,000 as well as a number of smaller industrial cities and small towns. It is home to several major sports teams and athletic events including the NFL's Indianapolis Colts, the NBA's Indiana Pacers, the Indianapolis 500 motorsports race . Residents of Indiana are known as
• Louisiana Some Louisiana urban environments have a multicultural, multilingual heritage, being so strongly influenced by an admixture of 18th century French, Spanish and African cultures that they are considered to be somewhat exceptional in the U.S. Before the American influx and statehood at the beginning of the 19th century, the territory of current
• Massachusetts Massachusetts has been significant throughout American history. Plymouth was the second permanent English settlement in North America. Many of Massachusetts's towns were founded by colonists from England in the 1620s and 1630s. The Merrimack Valley has been, since 1650, a center of creativity through the poetic word. America's first published poet
• Missouri Missouri mirrors the demographic, economic and political makeup of the nation with a mix of urban and rural culture. It has long been considered a political bellwether state. With the exceptions of 1956 and 2008, Missouri's results in U.S. presidential elections have accurately predicted the next President of the United States in every election
• Montana Montana has several nicknames, none official, including: "The Treasure State" and "Big Sky Country," and slogans that include "Land of the Shining Mountains," and more recently, "The Last Best Place." The state ranks fourth in area, but 44th in population, and therefore has the third lowest population
• North Carolina Spanish colonial forces were the first Europeans to make a permanent settlement in the area, when the Juan Pardo-led Expedition built Fort San Juan in 1567. This was sited at Joara, a Mississippian culture regional chiefdom near present-day Morganton in the western interior. This was 20 years before the English established their first colony at
• Pennsylvania Pennsylvania has 51 miles of coastline along Lake Erie and 57 miles (92 km) of shoreline along the Delaware Estuary
• Rhode Island The State of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island ( /ˌroʊd ˈaɪlɨnd/ or /rɵˈdaɪlɨnd/), is a state in the New England region of the United States. It is the smallest U.S. state by area. Rhode Island borders Connecticut to the west and Massachusetts to the north and east, and it shares a water
• Texas Houston is the largest city in Texas and the fourth-largest in the United States, while San Antonio is the second largest in the state and seventh largest in the United States. Dallas–Fort Worth and Greater Houston are the fourth and sixth largest United States metropolitan areas, respectively. Other major cities include El Paso and Austin—the
• Virginia The area's history begins with several indigenous groups, including the Powhatan. In 1607 the London Company established the Colony of Virginia as the first permanent New World English colony. Land from displaced Native American tribes and slave labor each played significant roles in the colony's early politics and plantation economy. Virginia was

The implied-contract theory to circumvent at will employment must be treated with caution. In 2006, the Texas Court of Civil Appeals in Matagorda County Hospital District, Petitioner v Christine Burwell, Respondent,^[14] held that a provision in an employee handbook stating that dismissal may be for cause, and requiring employee records to specify the reason for termination, did not modify an employee's at-will employment. The New York Court of Appeals, that state’s highest Court, also rejected the implied-contract theory to circumvent employment at will. In Anthony Lobosco, Appellant v New York Telephone Company/NYNEX, Respondent,^[15] the court restated the prevailing rule that an employee could not maintain an action for wrongful discharge where state law recognized neither the tort of wrongful discharge, nor exceptions for firings that violate public policy, and an employee's explicit employee handbook disclaimer preserved the at-will employment relationship.

Covenant of good faith and fair dealing exceptions (aka. "Implied-in-law" Contracts)

Only eleven U.S. states have recognized a breach of an implied covenant of good faith and fair dealing as an exception to at-will employment.^[11][16] These 11 states are:

• Alabama From the American Civil War until World War II, Alabama, like many Southern states, suffered economic hardship, in part because of continued dependence on agriculture. Despite the growth of major industries and urban centers, white rural interests dominated the state legislature until the 1960s, while urban interests and African Americans were
• Alaska Alaska was purchased from the Russian Empire on March 30, 1867, for $7.2 million at about two cents per acre . The land went through several administrative changes before becoming an organized territory on May 11, 1912, and the 49th state of the U.S. on January 3, 1959
• Arizona Arizona is the 48th state and last of the contiguous states admitted to the Union, achieving statehood on February 14, 1912 - the 50th anniversary of Arizona's recognition as a territory of the United States. Arizona is noted for its desert climate, exceptionally hot summers, and mild winters, however it also features pine forests and mountain
• California California's geography ranges from the Pacific coast to the Sierra Nevada mountain range in the east, to Mojave desert areas in the southeast and the Redwood–Douglas fir forests of the northwest. The center of the state is dominated by the Central Valley, one of the most productive agricultural areas in the world. California is the most
• Delaware Delaware is located in the northeastern portion of the Delmarva Peninsula and is the second smallest state in area . Estimates in 2007 rank the population of Delaware as 45th in the nation, but 6th in population density, with more than 60% of the population in New Castle County. Delaware is divided into three counties. From north to south, these
• Idaho Idaho is a mostly mountainous state, with an area larger than all of New England. It is landlocked, surrounded by the states of Washington, Oregon, Nevada, Utah, Wyoming, Montana and the Canadian Province of British Columbia. However, the network of dams and locks on the Columbia River and Snake River make the city of Lewiston the farthest inland
• Massachusetts Massachusetts has been significant throughout American history. Plymouth was the second permanent English settlement in North America. Many of Massachusetts's towns were founded by colonists from England in the 1620s and 1630s. The Merrimack Valley has been, since 1650, a center of creativity through the poetic word. America's first published poet
• Montana Montana has several nicknames, none official, including: "The Treasure State" and "Big Sky Country," and slogans that include "Land of the Shining Mountains," and more recently, "The Last Best Place." The state ranks fourth in area, but 44th in population, and therefore has the third lowest population
• Nevada Nevada is the seventh-largest state in area, and geographically covers the Mojave Desert in the south to the Great Basin in the north. It is the most arid state in the Union. Approximately 86% of the state's land is owned by the U.S federal government under various jurisdictions both civilian and military. As of 2008, there were about 2.6 million
• Utah Utah is one of the most religiously homogeneous states in the Union. Between 41% and 60% of Utahns are reported to be members of The Church of Jesus Christ of Latter-day Saints , which greatly influences Utah culture and daily life
• Wyoming As specified in the designating legislation for the Territory of Wyoming, Wyoming's borders are lines of latitude, 41°N and 45°N, and longitude, 104°3'W and 111°3'W , making the shape of the state a latitude-longitude quadrangle. Wyoming is one of only three states (along with Colorado and Utah) to have borders along only straight latitudinal

This exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception – at its broadest – reads a covenant of good faith and fair dealing into every employment relationship. It has been interpreted, by some courts, to mean either that employer personnel decisions are subject to a “just cause” standard or that terminations made in bad faith or motivated by malice are prohibited.

Statutory exceptions

Although all U.S. states have a number of statutory protections for employees, most wrongful termination Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. Other reasons an employer may not use to fire an at-will employee are:

• for refusing to commit illegal acts – An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• family or medical leave – federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• not following own termination procedures – often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

Examples of federal statutes include:

• Equal Pay Act of 1963 The Equal Pay Act of 1963 is a United States federal law amending the Fair Labor Standards Act, aimed at abolishing wage disparity based on sex. It was signed into law on June 10,1963 by John F. Kennedy as part of his New Frontier Program. In passing the bill, Congress denounces sex discrimination for the following reasons: (relating to discrimination on the basis of sex in payment of wages);
• Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);
• Age Discrimination in Employment Act of 1967 (relating to certain discrimination on the basis of age with respect to persons of at least 40 years of age);
• Rehabilitation Act of 1973 (related to certain discrimination on the basis of handicap status);
• Americans with Disabilities Act of 1990 (relating to certain discrimination on the basis of handicap status).
• The National Labor Relations Act provides protection to employees who wish to join or form a union and those who engage in union activity. The act also protects employees who engage in a "concerted activity".^[17]
• In addition to being fired based on status in a protected class (race, gender, etc.), employers are not allowed to retaliate against any protected action. "Protected actions" include suing for wrongful termination, testifying as a witness in a wrongful termination case, or even opposing what they believe (whether they can prove it or not) to be wrongful discrimination.^[18] In the recent federal case of Ross v. Vanguard, Raymond Ross successfully sued his employer for firing him due to his allegations of racial discrimination.^[19]

See also

• Employment Rights Act 1996, for the UK approach to employment protection. See also, Contracts of Employment Act 1963, for the first modern UK law on the requirement to give reasonable notice before any dismissal.
• Creen v Wright (1875–76) LR 1 CPD 591 and Hill v C Parsons & Co [1972] 1 Ch 305
• Employment agency
• European Social Charter
• UK agency worker law
• Worker Adjustment and Retraining Notification Act (WARN Act)

Notes

This article incorporates public domain material from the United States Government document "The employment-at-will doctrine: three major exceptions" by Charles J. Muhl, U.S. Bureau of Labor Statistics (retrieved on 6 February 2010).

1. ^ Mark A. Rothstein, Andria S. Knapp & Lance Liebman, Cases and Materials on Employment Law (New York: Foundation Press, 1987), 738.
2. ^ Lipsig, Ethan; Mary C. Dollarhide (1996). Downsizing: Law and Practice. Washington, DC: BNA Books. pp. 14–35. ISBN 1570180075.
3. ^ Id. at 601, 292 N.W.2d at 886.
4. ^ Id.
5. ^ Id. at 603, 292 N.W.2d at 887.
6. ^ Petermann v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen, & Helpers of Am., Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959)
7. ^ Robinson, Donald C., "The First Decade of Judicial Interpretation of the Montana Wrongful Discharge from Employment Act (WDEA)", 57 Mont. L. Rev. 375, 376 (1996).
8. ^ Id.
9. ^ Mont. Code. Ann. § 39-2-904 (2008)
10. ^ "Wrongful Discharge - An Exception to the At-Will Employment Doctrine". http://www.employee-advocates.com/PracticeAreas/Employment-Doctrine.asp. Retrieved May 24, 2010.
11. ^ ^{a b c d} Muhl, Charles (January 2001). "The employment-at-will doctrine: three major exceptions" (PDF). Monthly Labor Review. http://www.bls.gov/opub/mlr/2001/01/art1full.pdf. Retrieved 2006-03-20.
12. ^ In Adams v. George W. Cochran & Co., 597 A.2d 28 (D.C. App. 1991), the District of Columbia Court of Appeals carved out a narrow public policy exception to the at-will employment doctrine. The appellate court held that the exception is "when the sole reason for the discharge is the employee's refusal to violate the law, as expressed in a statute or municipal regulation." 597 A.2d 28, 32. In 1997, this exception was expanded in Carl v. Children's Hospital, 702 A.2d 159 (D.C. App. 1997). The court held that, in addition to the exception articulated in Adams, wrongful discharge would also include a violation of public policy if the public policy is "solidly based on a statute or regulation that reflects the particular public policy to be applied, or (if appropriate) on a constitutional provision concretely applicable to the defendant's conduct." 702 A.2d 159, 163.
13. ^ http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0448/SEC102.HTM&Title=-%3E2009-%3ECh0448-%3ESection%20102#0448.102
14. ^ 49 Tex Sup J 370, 2006 Tex LEXIS 137
15. ^ 751 N.E.2d 462 (2001)
16. ^ It is unclear whether courts in the District of Columbia recognize a good-faith covenant exception. In Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624 (D.C. App. 1997), the District of Columbia Court of Appeals ruled against the plaintiff, who alleged that his employer had violated a "covenant of good faith and fair dealing" in conducting sexual harassment investigation against him. It is unclear if the Court of Appeals recognized the good-faith covenant but that the plaintiff did not prove a violation of the covenant, or whether the court did not recognized the good-faith covenant exception at all.
17. ^ "Federal and State Statutory Exemptions to At-Will Employment". Managerial Law 1 (43): 92–98. 2001. http://proquest.umi.com/pqdweb?index=0&did=278685321&SrchMode=1&sid=1&Fmt=6&VInst=PROD&VType=PQD&RQT=309&VName=PQD&TS=1195361334&clientId=13929. Retrieved 2007-11-18.
18. ^ US: Equal Employment Opportunity Commission. "Retaliation". http://eeoc.gov/types/retaliation.html. Retrieved 04-10-2009.
19. ^ US: Equal Employment Opportunity Commission. "Vanguard Group to Pay $500,000 for Retaliation". http://www.eeoc.gov/press/2-29-08a.html. Retrieved 2009-04-18.

References

• Highstone v. Westin Engineering, Inc., No. 98-1548 (8/9/99) - at-will relationship must be clear to the employees

Categories: Employment law terms | Labor law of the United States | Human resource management | Ethically disputed business practices

See Also:

• Employment Law: Encyclopedia
• Employee Raiding: Encyclopedia
• At-will Employment: Encyclopedia

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