Legal Malpractice Forum
| Jurisdiction | United States,Federal |
| Citation | Vol. 11 No. 1 Pg. 87 |
| Pages | 87 |
| Publication year | 1982 |
1982, January, Pg. 87. Legal Malpractice Forum
Approximately two-thirds of the American work force, those who are not covered by collective bargaining agreements, are governed by a common-law rule that presumes their employment to be terminable at will.(fn1) This archaic doctrine in essence grants employers absolute freedom to discharge without notice and without cause. Akin to the theory that the "king can do no wrong," the net effect of the rule is that even if an employee has been promised a measure of job security(fn2) or permanent employment,(fn3) or would soon be eligible for pension rights,(fn4) he or she may be discharged for any reason or no reason at all.
The article explores the recent trend toward the erosion of the at-will rule and seeks to provide guidelines to business counsel on how best to insulate their clients from the adverse impact the new decisional trend is expected to have on employers.
The at-will rule holds that any indefiniteness about the period of the contract of employment creates a presumption that the employment relationship may be terminated at will. The underpinning of the rule was grounded upon the assumption that because an employee was not obligated to remain within the confines of the employment relationship, it would be unfair to allow the employee latitude or movement within the work force while denying the employer essentially the same freedom of decision.
However, that assumption has proved largely illusory, since accrued rights in benefits programs, seniority and specialized job markets requiring familiarity with new technologies and techniques all operate to create significant ties which bind the employee to his employer and throw formidable obstacles in the path of an employee's decision to quit.
Recognizing the often unequal bargaining position of employees and employers vis-Ã -vis the employment contract, state courts have begun to develop exceptions to the at-will rule, recognizing a cause of action for wrongful discharge on theories of breach of contract, the tort of "abusive discharge" and public policy.(fn5)
Although the tort and public policy theories are beyond the scope of this article, it is noteworthy that at least one court has gone so far as to hold an employer liable for intentional infliction of emotional distress where the employee's
termination was conducted in such a capricious and arbitrary manner that it shocked the judicial conscience.(fn6)
Employees have successfully prosecuted numerous claims for wrongful discharge under the catch-all umbrella of a public policy theory, among them: discharge for refusal to commit a crime or unlawful act,(fn7) discharge for performance of important public functions,(fn8) and discharge for reporting or disclosing alleged violations of the law.(fn9)
Despite their importance, none of these decisions appear to affect substantially the evaluation of a wrongful discharge case, whether as counsel for the plaintiff or defendant. This is largely because situations where an employee is discharged for failure to commit an illegal act(fn10) or as a result of serving on a jury(fn11) are...
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