The Arbitrariness of the Doctrine of Employment at Will

Despite the worrisome specter of being sued by a person you fire, if you are an employer in private industry, in most situations, you are free to fire workers with little likelihood that they can successfully sue you. That is because of the long-established legal doctrine of employment at will. This doctrine stems from an 1894 case (Payne v. Western & Atlantic RR, 81 Tenn. 507), in which the court ruled that employers do not need a reason to fire employees; they may fire any or all of them any time they choose—that is, at will.

Because the court held that workers have no automatic legal right to keep their jobs, the reality is that workers can be fired for murky reasons—such as not fitting in with the rest of the workplace. And they can also be fired for no reason at all. Thus, we can infer that one of the apparent characteristic of employment at will is its insistence of freedom of contract as an end in itself. Over the years, this basic legal doctrine of employment at will has been reinforced again and again in subsequent cases.

But it has also been limited substantially by a number of laws and other court rulings. These legal tweakings have given workers more protections from being fired if the reason is legally suspect. For example, specific laws now make firings illegal if they are based on discrimination due to the worker’s race, skin color, age, gender—which broadly includes sexual harassment, religious beliefs, national origin, disability or pregnancy.

And court decisions have held that it may also be illegal to fire a worker if he or she can prove that would violate written or oral contract between the employee and the employer, abridgement of duty of fairness, and deterrence of clear public policy. Such limitation on employment at will make the doctrine less vague, especially in the enforcement of freedom. If there is an existing contract between the master and servant, the former cannot easily fired the latter, especially if the master’s reason is based on egoistic volition because he/she must provide necessary documents to validate such dismissal.

The existence of contract also ensure the enforcement of duty of fairness because this will be the ultimate manifesto and protection of an employee in the face of dismissal, since the mere presentation of contract or recitation of specific precepts of the contract can absolve the employee in case of dismissal, in which the employer must consult and follow accordingly in the essence of fairness.

Every contract axioms must be in accordance to legal statutes, hence, employers who adopt employment at will doctrine must know exactly what public policies it should incorporate in the contract, and what legal axioms need not be included in the contract. On the other hand, such freedom in doctrine is still not definitive because the lack of union and contract dissolves the concept of freedom, thus making employer power tripping admissible. Employment at will without contract is gives a new definition of freedom in favor the employer, which can led to unreasonable firing of employee, and even to the point of wage discrimination.

In essence, employers can dispose employees even if such disposal is morally impermissible. Thus, freedom in employment at will is not only vague, it is also arbitrary, and in some sense pragmatic in the perception of the employer. Such arbitrariness in freedom can be seen in the lack of contract, which can lead to the dissolution of duty fairness, and an outright negligence of public policy. First, full-fledged employment contracts are scarce—traditionally reserved for uppermost company executives and other notables such as professional athletes.

But an increasing number of employers in highly competitive businesses such as Internet startups negotiate and sign detailed contracts with some or all of their upper-echelon employees—contracts setting out the specific terms of their employment, including salary, stock options and relocation rights. In addition, these days, many employers provide very simple job offer letters to employees of every stripe. These letters can also be viewed as very basic employment contracts.

They generally include date of hire, specifics of the position and work responsibilities, details about compensation, and a basic recap of benefits offered, such as vacation, insurance and retirement plans. But because these barebones employment letters rarely mention how and for what reasons the employment may end, they are not the type of contracts that are relevant when it comes to firing. Unlike the wordier full-fledged employment contracts mentioned above, they do not prevent an employer from exercising legal rights to terminate a worker under the employment at will doctrine.

For all employees covered by a written contract, there is usually no argument that a contract truly does exist. A legal contract—covering employment or anything else—is created when three things occur an employer makes an offer of employment to a person, that offer is accepted, and something of value, usually a salary or other benefit such as stock options, is exchanged based on the agreement. Second, since most employees cannot make a creditable showing that a contract ever existed, they have no realistic chance of claiming that an employment contract has been violated.

And barring discrimination or some other egregious wrongdoing in the firing, one of their only hopes of fighting a job dismissal is to claim that you have breached what is referred to as a duty of good faith and fair dealing. And third, just as in a claim that you discriminated or acted in bad faith, the employment at will doctrine flies out the window if you fire a worker merely to stop him or her from complaining about your illegal conduct or a wrong you have committed, such as failing to pay workers a minimum wage or overtime pay when it is required.

Indeed, it is illegal to violate public policy when firing a worker—that is, fire for a reason that most people would find morally or ethically wrong. These legal actions are often colloquially referred to as whistleblower lawsuits, since it is the employee who figuratively has lips to the whistle. This means that a disgruntled fired worker now has a number of legal weapons with which to attempt to shatter an employer’s defense that a particular firing was legal under the at will doctrine.

Consider, too, that if a worker opts to air a claim of illegal firing in court, juries are often sympathetic to fired workers, regarding them as underdogs— sometimes in the face of considerable evidence to the contrary. So despite the comfort extended by the employment at will doctrine, it can still sometimes seem scary to fire a worker. But it should help to know that as long as your company follows fair and equitable policies and avoids the legal potholes discussed here, you should be safe.

Perhaps the best single step you can take to be sure you are on solid legal ground is to document your sound business reasons for firing the worker. In addition to a worker’s right not to be fired for illegal reasons, there are a few important exceptions to the employment at will doctrine that may make it possible for employees to hang onto their jobs. As mentioned, more employees are fighting firing with legal fire, claiming that while the employment at will doctrine may justify most firings, it does not apply in their situations.

They argue instead that their employers had a contractual deal with them that must be honored. Or they claim that their firings fall within one of the other long recognized exceptions to the employment at will rule. These involve an employer who has misbehaved—either by dealing unfairly with the worker, or by violating a law that protects workers by prohibiting discrimination or protecting some other social right. Sometimes, a worker claims that he or she cannot be fired under the employment at will doctrine because he or she has a written or an oral employment contract that prevents it.

Employees who have valid employment contracts are not subject to the employment at will doctrine; instead, their contracts usually spell out the length of their employment and specifically note when and how the employment relationship can end. To fire them, you have to follow the chapter and verse of the contract clause that controls termination. This clause usually requires good cause to end the contract before its time. The better contracts detail exactly what types of misconduct are considered good cause.

Fortunately, it can be nearly as easy to discern if a written employment contract has been broken. Assuming the contract is clearly written in the first place, it is usually not difficult to pick it up and point to the terms that have been trampled or ignored. A caveat when firing someone with whom you have a written employment contract. When you signed on the dotted line, you transformed the worker from an employee at will to one with specific legal rights. If you cannot point to a very clear breach of the contract, you may be constrained from firing at all.

You are especially likely to be on shaky legal ground if you attempt to fire a contract employee because his or her work, personality or sales figures do not please you. And remember that when you are dealing with an employee who has signed a contract, you are also likely to be dealing with a fairly sophisticated soul—someone more than likely to take you to court if he or she feels wronged or squeezed out of mass quantities of money. Should you wish to break an employment contract, consider consulting an experienced employment lawyer for advice.

In the end, limitations on employment at will may have brought clarity on how employers should treat their employees and how the company must protect its employees, the definition of freedom is still not clarified in this doctrine, and thus abuse of power is still possible in corporate situation. For example, in the case of Howard Smith III, he was dismissed in American Greetings Corporation due to a conflict with his shift leader without any valid reasons at all. Unfortunately for Smith, he does not have any union to protect and to defend him.

Freedom in employment at will in this happenstance is non-definitive and vague because the employer can instantly fired any employee without the need of providing any sound reason. We can see that freedom in employment at will doctrine is apparent when two involved parties signed a contract, but this will not be the case if there is no contract signed. Employees who do not made any contract with his employer is vulnerable to power tripping because they are dispensable since no documents are available to protect them, and prove that such act of dismissal is impermissible i.

e. one’s dismissal cannot be proven invalid in reason of breach of contract because such thing does not transpire. In short, freedom in employment at will doctrine is beneficial for the employees, insofar as they have contracts, but the nonexistence of such means the possibility of abuse. Reference: Epstein, Richard A. In Defense of the Contract at Will,”Ethical Treatment of Employees. University of Chicago Law Review, 2002. Werhane, Patricia H. and Tara J. Radin. Employment at Will and Due Process, Ethical Treatment of Employees. University of Chicago Law Review, 2002.