The doctrine of employment at will arose during the Industrial Revolution as an alternative to what had been the mutual obligations of the master-servant relationship. Under the at will doctrine, those obligations, particularly those as to duration, no longer apply. Whereas under master-servant law, if no duration was agreed upon by the parties, the employment was legally presumed to be, e.g., for a year, under the at will doctrine, the employment may be terminated at any time for any reason so long as the reason is not an unlawful reason. Without statutory intervention on behalf of workers, such as has taken place in the European Union, or a resurgence of organized labor, which may be on its way, the at will doctrine is a fact of life for most employees in the United States.
To avoid the impact of the at will doctrine, the employee must show that the doctrine does not apply, that it is not practical to apply, or that the employer’s motive was unlawful. This article will review three strategies for avoiding the doctrine’s impact by: (1) obtaining and enforcing promises; (2) winning the “memo war”; and/or (3) filing complaints, internally and externally.
I. OBTAINING AND ENFORCING PROMISES
Goal: Create employment that cannot be terminated at will.
As with other contracts, the terms of employment contracts are subject to negotiation, and to amendment. Thus, whether or not an employee has signed an acknowledgment of at will status, a different relationship or additional promises may be proven and/or enforced under various theories, such as contract, implied contract, third-party beneficiary contract, promissory estoppel, fraud in the inducement, and negligent or innocent misrepresentation. Note that the emotional distress damages may be available under the tort claims.
Practice Pointer: Negotiate reasonable terms.
An employee who is considering taking a new job, or a new assignment with a current employer, may want to communicate with the new supervisor about the expected duration of the assignment into which the employee is being hired, the procedure to be followed if premature termination or layoff is contemplated, the notice given in such circumstances, and the reliance the employee has put on these promises. If need be, the employee may point to these promises in support of, inter alia, extended employment or severance payments. Note that the terms negotiated should be reasonable as courts are reluctant to enforce “life-time” employment contracts.
Example: Negotiate for a two-year contract.
During his interview for a software engineering job with ABC Company, Mike asks Sue, the software engineering manager, about the expected duration of the project for which he is being hired. Sue’s answer is two years. Mike shares with Sue his traumatic experience of being let go from a job unexpectedly, and he tells Sue that he would not want that to happen again. Sue assures Mike that even if the project is completed ahead of schedule, the company would not let go the project team without ample notice. Upon Mike’s further questioning, Sue also tells Mike that the company has policies regarding goals, warnings and performance improvement plans.
Mike receives a written offer letter, which contains a statement that the employment is at will. Mike signs and returns it. However, he also emails Sue about how important their conversation was for him in deciding to join ABC Company rather than pursue other options that he had been considering. Sue responds, welcoming Mike to the team.
Less than a month later, Sue wants to fire Mike because his skills are not what she expected. Mike reminds Sue about her promises to him and requests performance goals, a performance improvement plan, or 23 months severance with full benefits and money for his emotional distress. He tells her that this situation is reawakening for him the trauma of the earlier termination and he is contemplating suicide.
Example: Negotiate for a return to a prior assignment.
The performance improvement plan succeeded and software engineer Mike has been with ABC Company for two successful years. The original project has been completed and Sue’s team is starting on a new two-year project. Sue asks Mike to transfer to the sales support department. In an email to Sue, Mike agrees to the transfer based on his understanding that he will be welcome back in software engineering if things do not work out in sales. Sue does not respond. The transfer takes place.
Mike’s skills are, indeed, a mismatch for sales support. He wants a transfer back to software engineering, or two years severance with full benefits and money for his emotional distress.
II. WINNING THE MEMO WAR
Goal: Discourage termination and position for severance.
Whether or not the law requires good cause for a termination, business economics do – turnover is costly. Therefore, even if the employee’s employment is at will, terminating an employee
for no reason, or no good reason, is impractical. Most managers will attempt to justify adverse employment decisions. That is often done by “papering the file” with warnings and poor performance reviews – a practice that gives employees and their lawyers numerous opportunities to respond. If successful, the “memo war” will slow down, possibly to a halt, the termination process and/or result in an offer to the employee of a severance package.
Practice Pointer: Demonstrate lack of good cause for termination.
To win the memo war, an employee should write for the jury, and for the company’s attorney. The employee’s memos should demonstrate, in a concise, coherent and polite fashion, that the allegations against her or him are false, unfair and/or otherwise unreliable. The employee should also repeatedly offer to do whatever is required to remedy the situation and to please the employer. Note that this strategy, while often effective, can take a toll on an employee’s mental health – as it is not unlike living in an emotional war zone.
Example: Show the allegation to be false.
Mike is transferred back to software engineering but, within a month, Sue gives him a written warning for missing a project deadline. Mike responds with a memo of his own. In it he says:
“I was saddened to receive the warning, (1) because I thought you understood the need for and had agreed to an extension of the deadline and, (2) because I am committed to doing whatever is required to demonstrate that I am a valuable member of your team.
As to what I think was a misunderstanding, I recall that we had discussed that the information I needed to meet the deadline was, due to no fault of mine, not going to be available to me until after the deadline. Given that, I did not think you were still expecting anything from me by the original deadline.
As to how to demonstrate to you my value, I am wondering if it would be possible for us to meet every other week, or even weekly, to be sure that I am on track with my goals and your expectations. Thank you for your consideration.”
Example: Show the allegations to be unfair.
Mike receives another written warning; this time for failing to accomplish something that is undoable. Again, he responds:
“I am again saddened to receive another warning. I would very much appreciate an opportunity to review my goal with you to be sure they are realistic and to be sure I understand what you think I can to do to meet them.
You have asked me to Jump Over the Moon. While I understand that this is an important objective, I am unsure how to accomplish Jumping Over the Moon, especially while accomplishing the other goals on which I will be evaluated. Perhaps we could start having the weekly meetings I requested? Again, I would be grateful for your guidance.”
III. FILING COMPLAINTS
Goal: Discourage retaliation and position for severance/litigation.
Once an employee files an internal or external complaint, particularly regarding unlawful discrimination or other unlawful activity, the employer is on notice that any further adverse actions may be found to be retaliatory. For some employees, filing a complaint increases their job security; for others, it hastens its end, although hopefully with a better severance package or stronger legal case.
Practice Pointer: Hit the legal hot spots and put supervisors on notice.
To paraphrase Massachusetts case law, bad management, unkind management and, even, unfair management is not necessarily unlawful management. To be unlawful, it must be unlawful in method or in motive. When filing complaints, the employee should identify the unlawful methods and motives known or suspected. Note that supervisors who are put on notice of such complaints may be personally liable for retaliatory conduct, and may lose the conditional privileges otherwise available to them.
Example: Internally complain about discrimination.
After receipt of his third warning, Mike files a complaint with the company’s EEO officer, Ruth, with copies to both Sue and software engineering human resources representative Ron. In his complaint, he states:
“I am saddened to say that I fear that my age is at issue here. Sue asked me to transfer to sales support and then hired a man half my age. Since having to take me back onto her team, Sue has treated my differently than she has treated others on the team – including the young man in question. I am held to a higher standard and am expected to do more. I genuinely hope this can be resolved as I would very much like to be a successful, and appreciated, member of the team.”
Example: Externally complain about discrimination.
After filing his internal complaint, Mike receives a poor performance review and is put on a three-month performance improvement plan. He files a charge of discrimination with the Massachusetts Commission Against Discrimination, naming as respondents the ABC Company, Sue, Ruth and Ron. In it, he states:
“I was born on April 17, 1955. I have worked for the ABC Company for almost three years.
Since my hire, I have been subjected to prejudicial notions about the abilities of person of my age (now 50) to learn new skills, and retaliation for wanting to be treated like others younger than me. For example, within a month of my hire, Sue wanted to fire me rather than give me the training opportunities/’getting up to speed’ time given to younger people. I complained and was given that time and opportunity, and I did succeed as evidenced by my reviews, raises and bonuses.
Nonetheless, first chance she had, Sue transferred to a different department, one unsuited to my background and training, so that she could replace me with a person half my age. Thereafter, she was again forced to have me on her team but this time she did not allow me the opportunity to succeed and was not required to do so.
Rather, I was held to a higher standard and subjected to higher demands, and my requests for fair treatment went unmet. I filed an internal complaint and sought the help of the EEO officer (Ruth) and my HR representative (Ron), only to be subjected to further discrimination and retaliation, including a poor review and a three-month performance improvement plan. Nothing was done to protect me and my job is now in jeopardy.
I may be fired at the end of the three months if something is not done to insure that I am treated fairly under the law. I ask the Commission to help me as soon as possible. If I lose my job, I do not know what I will do. I have no other source of income.”
Many scholars have pointed out that the legal underpinnings of the at will employment doctrine are, at best, suspect. Yet, it has been so widely adopted in the United States that it seems unlikely that it will be judicially over-turned, at least not by a head-on assault. Rather, the assaults most likely to succeed are:
- Contractual, quasi-contractual and otherwise promissory – requiring employers to abide by the promises they make to employees in interviews, emails, handbooks and elsewhere;
- Practical – requiring employers to abide by “the law of the shop” that requires adverse employment actions to be for good cause; and
- Statutory – requiring employers to abide by those laws that do curtail the at will doctrine when, for example, the motive for a termination is unlawful.
 The author cannot help but note that the at will doctrine gives employers the advantage of master-servant law – providing a default assumption when no durational term of employment is specified – while all but ignoring the contract law requirement of a meeting of the minds. One purpose of this article is to encourage a re-examination of that imbalance. For more on this, see Brian T. Kohn, Note, Contracts of Convenience: Preventing Employers From Unilaterally Modifying Promises Made in Employee Handbooks, 24 Cardozo L. Rev. 799 (2003).