Offer at Your Own Risk: Why Louisiana Employers Who Withdraw an Offer of Employment May Find Themselves Liable Under Civil Code Article 1967

Author:Taylor Crousillac
Position:J.D./D.C.L., 2016, Paul M. Hebert Law Center, Louisiana State University.
Pages:921-957
 
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Offer at Your Own Risk: Why Louisiana Employers
Who Withdraw an Offer of Employment May Find
Themselves Liable Under Civil Code Article 1967
TABLE OF CONTENTS
Introduction .................................................................................. 922
I. Trying to Find the Answer: The Various Approaches to
Rescinded Employment Offers ..................................................... 924
A. Jurisdictions that Allow a Wronged Prospective Employee
a Cause of Action ................................................................... 925
B. Jurisdictions that Do Not Allow a Wronged Prospective
Employee a Cause of Action .................................................. 929
C. Louisiana’s Misguided Approach .......................................... 931
1. A First Take: May v. Harris Management Corp. ............ 931
a. The May Majority’s Faulty Rationale ....................... 932
b. The May Concurrence’s Apprehensive Rationale ..... 932
c. The May Dissent’s Well-Reasoned Rationale ........... 933
2. Another Chance: Bains v. The Young Men’s Christian
Ass’n of Greater New Orleans, Louisiana ....................... 934
II. Louisiana Doctrines Supporting the Existence of Pre-
EmploymentClaims: The At-Will Employment Doctrine,
Detrimental Reliance, and Civil Law Distinctions ....................... 936
A. The At-Will Employment Doctrine in Louisiana ................... 937
1. Louisiana Courts’ Misapplication of Article 2747 .......... 938
2. The Requirement of Good Faith in the At-Will
Relationship ..................................................................... 939
B. The Evolution of Detrimental Reliance in Louisiana ............. 941
1. Pre-Civil Code Article 1967 ............................................ 941
a. Historic Civil Law Roots .......................................... 942
b. Ducote v. Oden: Louisiana Supreme Court’s
Questionable Rejection of Promissory Estoppel ....... 943
2. A Defining Moment: Louisiana Legislature’s
Codification of Article 1967 ............................................ 944
C. Unique Civilian Concerns ...................................................... 946
1. Civil Law Cause as Compared to Common
Law Consideration ........................................................... 946
a. Common Law’s Burdensome Requirement of
Consideration .............................................................. 947
b. Civil Law’s Flexible Cause ......................................... 947
922 LOUISIANA LAW REVIEW [Vol. 76
2. Other Civil Code Provisions Affect the Analysis ............ 948
III. The Failure of Louisiana’s Current Approach .............................. 949
A. Detrimental Reliance Should Not Be Disfavored in
Louisiana Law ........................................................................ 950
B. The At-Will Employment Doctrine Should Not Supersede
Article 1967............................................................................ 950
C. Civilian Considerations Make a Difference ........................... 952
D. Public Policy Favors Recovery .............................................. 954
IV. Returning to Bob: The Application of Justice .............................. 956
Conclusion .................................................................................... 957
INTRODUCTION
Meet Bob, an extremely successful and hardworking individual who
has unexpectedly found himself without a job or a way to put food on the
table for his family. Just a few weeks ago, Bob was happily employed with
a good salary when Kirk, owner and chief executive officer of the largest
Louisiana company specializing in Bob’s area of expertise, contacted him.
Kirk offered Bob employment at his company with a salary substantially
higher than Bob’s current job. Kirk told Bob that he could start in two
weeks. Bob had to think of his family, his future, and his co-workers that
he would be leaving if he accepted Kirk’s offer. After serious
consideration and multiple conversations with Kirk about the sincerity of
his offer, Bob finally accepted the position and quit his current job. Bob
and his family were thrilled at the prospect of greater economic liberty that
would come with the promised increase in income.
Shockingly, Kirk called Bob the Friday before his start date and
withdrew his offer of employment, telling Bob that he no longer thought
that hiring Bob was a good idea for the company. Bob was in disbelief
upon hearing this, and immediately called his former employer begging to
return, but it had no longer wanted Bob back. Because Bob works in a
specialized field, he faces bleak prospects of finding another job at his skill
level in a reasonable time. Despite being elated just hours before, Bob’s
entire family was now at risk.
Kirk’s actions and promises led directly to Bob’s calculated decision
to quit his job, and Bob would not be unemployed if Kirk had not offered
him a better job. Despite this obvious problem, Louisiana courts have
applied the state’s at-will employment doctrine to hold that relying on an
2016] COMMENT 923
offer of employment is unreasonable as a matter of law.1 This holding
means that an aggrieved prospective employee has no chance to argue his
or her case on the merits, no matter how egregious the employer’s actions.2
This result is surprising in light of Louisiana’s detrimental reliance theory
that is codified in Louisiana Civil Code article 1967, which seems
perfectly tailored for Bob’s situation.3
The current Louisiana jurisprudence that categorically bars recovery
on revoked offers of employment claims is misguided and should be
overruled. Under Louisiana law, courts should not consider relying on an
offer of employment unreasonable as a matter of law, even if that
employment is at will. In certain circumstances, a prospective employee’s
reliance on an employer’s offer of employment is completely reasonable.
Copyright 2016, by TAYLOR CROUSILLAC.
1. See May v. Harris Mgmt. Corp., 928 So. 2d 140, 148 (La. Ct. App. 1st
2005) (“We hold that it is unreasonable as a matter of law to rely on an offer of
at-will employment, just as it is patently unreasonable to rely on the permanency
of at-will employment once it begins.”); RICK J. NORMAN, LOUISIA NA PRACTICE:
EMPLOYMENT LAW § 3:9, at 36 (Supp. 2013–2014 ed., 2013) (citing the May
holding as the rule); Tracy A. Bateman, Employer’s State-law Liability for
Withdrawing, or Substantially Altering, Job Offer for Indefinite Period Before
Employee Actually Commences Employment, 1 A.L.R.5th 401 (West, Westlaw
through 2015) (using May as the Louisiana Rule); Bains v. Young Men’s
Christian Ass’n of Greater New Orleans, 969 So. 2d 646, 652 (La. Ct. App. 4th
2007) (Armstrong, J., dissenting) (“Present Louisiana case law finds that it is
inherently unreasonable to rely on an offer of at-will employment.”); infra Part
II.A (discussing at-will employment in Louisiana).
2. This result is due to the fact that Louisiana jurisprudence requires a
plaintiff in detrimental reliance cases to prove three elements by a preponderance
of the evidence, and an absence of one of the elements can lead to the dismissal
of the plaintiff’s claims at the summary judgment stage. To recover under the
theory of detrimental reliance the plaintiff must prove: (1) the promisor made a
representation by conduct or word; (2) the promisee’s justifiable/reasonable
reliance on the promisor’s representation; and (3) a change in the promisee’s
position to his or her detriment because of that reliance. May, 928 So. 2d at 145;
see also Murphy Cormier Gen. Contractor, Inc. v. Dep’t of Health & Hosps., 114
So. 3d 567, 596 (La. Ct. App. 2013); Amitech U.S.A., Ltd. v. Nottingham Constr.
Co., 57 So. 3d 1043, 1052 (La. Ct. App. 2010). This Comment focuses on the
second element.
3. The article in pertinent part states:
A party may be obligated by a promise when he knew or should have
known that the promise would induce the other party to rely on it to his
detriment and the other party was reasonable in so relying. Recovery
may be limited to the expenses incurred or the damages suffered as a
result of the promisee’s reliance on the promise.
LA. CIV. CODE art. 1967 (2015). The facts in this hypothetical share many
similarities with the facts of Bains, 969 So. 2d 646. See infra Part I.C.2 (discussing
the Bains decision).

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