An Alternative to Wrongful Discharge Litigation
| Jurisdiction | Colorado,United States |
| Citation | Vol. 08 No. 1987 Pg. 1413 |
| Pages | 1413 |
| Publication year | 1987 |
1987, August, Pg. 1413. An Alternative to Wrongful Discharge Litigation
Colorado courts have been called upon repeatedly to resolve questions involving the nature of the employment relationship. In the authors' opinion, the principles of contract law adopted in Keenan v. Continental Airlines(fn1) do not provide an analytic model which corresponds to the reality of the workplace. The employment contract theories adopted in Keenan represent an unrealistic and expensive framework for the resolution of employer-employee disputes involving employment manuals.
Keenan reiterates the fundamental premise of at-will employment that an employee hired for an indefinite period of time is presumed to be terminable at the employer's will. However, the court unfolded two alternative theories to entitle employees access to the court system over "wrongful termination" or "wrongful employment" decisions. Under Keenan, courts may construe an employment policy manual as providing contractual rights to employees under either strict contract or promissory estoppel theories. The tests to satisfy these theories are fact intensive and will all but insure that litigants will proceed to trial, which is likely a disservice to both parties.(fn2)
The opinions in this article are based on the authors' experiences, but the conclusion is the same---an alternative resolution for employment claims should be explored in Colorado. The premises of the article are subject to varying interpretations. We encourage other opinions and comments from our readers (address them to Column Editor John Husband, Holland & Hart, P.O. Box 8749, Denver, CO 80201).
An imperfect fit exists between traditional contract or quasi-contract law and the needs of the employer and employees for regulation. These legal principles fail to provide clear guidelines, uniform or equal application or meaningful remedies. Their application involves complex and time-consuming litigation which will price most of the plaintiffs out of the judicial market.(fn3) Needless protracted litigation will result, not because there will be large numbers of victims of contract breaches, but because the factual parameters of proof are boundless. Therefore, plaintiff's lawyers will be unable to predict reasonably the outcome of cases before a decision to file suit is made. This also creates seemingly endless, expensive and time-consuming discovery.
Settlement possibilities are markedly reduced in such cases because even after discovery is completed, it is often difficult to tell which discovered facts might result in summary judgment. Therefore, the filing of summary judgment motions will be the rule and not the exception. However, because these cases are so fact intensive, courts will hesitate to grant summary judgment and such cases will proceed to trial. In short, employment litigation under contract or quasi-contract theories is unreasonably expensive and unduly burdensome on judicial time.
The ordinary employment relationship is not a bilateral relationship in which both the employer and employee negotiate for and exchange express promises.(fn4) More often than not, the full terms of the relationship are not spelled out clearly in a written contract between the employer and the employee. Thus, principles underlying bilateral contracts are not well suited to the typical employment case.
Moreover, principles underlying unilateral contracts, which were used in Keenan, do not apply easily to disputes arising out of the employment relationship. Insuperable vagueness exists in the application of traditional contract principles to handbook
The Restatement of Contracts provides that, once an offeree has begun performance in reliance upon a unilateral promise, the offer is irrevocable. Thus, under traditional contract principles, the circumstances are uncertain...
To continue reading
Request your trial