THE "EMPLOYMENT AT-WILL" RULE

The general rule in most states is that an employee without an express agreement for a definite time period is employed at the will of the employer. As a rule of thumb, if you have not entered into an express contract with a definite term or if you are not a union employee protected by a "just cause" contract, or if you are not a public employee protected by the civil service system, most states will presume that you have an "at-will" employment relationship with your employer. That means you may be terminated "at-will" so long as the termination was not for discriminatory purposes.

In almost every state in the country however, at least one critical exception to the employment at-will rule has been recognized by the courts, and in other states certain protections exist by legislative enactment. It is important for your job security to understand those exceptions to the at-will rule.

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1. Enforcing Contracts, Promises And Covenants As Exceptions To The At-Will Rule

Today over 40 states recognize some form of implied contract, others will enforce promises, (verbal or written) and still other states have applied the concept of a covenant of good faith and fair dealing, (borrowed from insurance law).

a. Implied Contracts

Even without an express contract, most states recognize that there exists circumstances which indicate that the employee and the company intended something other than at-will employment. Implied contracts can be oral or written, but by far the most common form of implied contract has been the Employee Handbook. The fact that you possess a company handbook, however, does not automatically give you an implied contract claim, especially if a disclaimer exists within the handbook. If you have questions about the legal effect of your personnel policies you should consult with an employment law attorney.

b. Promissory Estoppel

A handful of states also allow employees to enforce promises (verbal or written) under a legal theory known as "promissory estoppel". The promissory estoppel claim says that even if a contract does not exist, a court will enforce a promise made by an employer if: (1) the employer makes a promise to an employee; (2) the employer should reasonably expect the employee to consider the promise as a commitment from the employer; (3) the employee does rely on the commitment as a promise, then (4) the employee should be permitted to enforce the promise as justice requires. The same defenses used by employers to fight off implied contract claims (i.e. disclaimers) are usually argued here as well.

c. Covenants of Good Faith and Fair Dealing.

Some states also allow employees to enforce representations under a claim known as the covenant of good faith and fair dealing. The covenant of good faith and fair dealing provides protection to employees who have been wrongfully fired but who cannot point to specific termination or progressive discipline procedures in the employee handbook. For example, if an employment handbook provides an employee with three paid personal days per year, then the employer should not be allowed to terminate an employee for taking three paid personal days per year even if the handbook does not specifically state that an employee will not be fired for following company procedures.

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2. The Emerging Claim Of "Wrongful Discharge"

In almost every state in the country, where an employee is forced to choose between job or jail, that employee has a wrongful discharge claim against his employer if he refuses to commit an illegal act and is fired for it. To prevail under what is known as the "wrongful discharge in violation of public policy claim", the employee must usually point to a specific statute or regulation, show that he or she had a specifically enacted right or duty based on that statute or regulation, and then show that he or she was fired as a result of taking that right or duty in violation of public policy.

The most widely accepted wrongful discharge claim based on a specifically enacted right is protection for an employee who proves that he or she was fired in retaliation for filing a claim for worker's compensation.

The most common wrongful discharge claim based on a specifically enacted duty involves any employee who opposes an illegal act of the employer (especially if that act is related to a duty of the employee) and is fired for it.

Another category of wrongful discharge involves protection of employees who "blow the whistle" on their employers who are committing illegal acts. In this situation the whistle blower does more than internally oppose an illegal practice. Indeed, the whistle blower actively discloses usually to a governmental entity the illegal or improper practice.

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3. A Short Checklist Of Other Possible Claims In The Wrongful Discharge Setting

It is not possible to identify every claim that every state has recognized in some form or another against an employer who has terminated an employee for an improper or illegal reason. Generally, however, an analysis might begin by asking yourself if you have been the victim of some form of illegal discrimination (e.g. age, sex race, national origin, disability). The next step might be to consider whether you were victimized by some of the more common non-discrimination claims. These claims might include:

(1) public policy and whistleblower claims;

(2) implied contract, promise or covenant claims;

(3) misrepresentations;

(4) invasion of privacy;

(5) defamation;

(6) intentional infliction of emotional distress;

(7) negligence; or

(8) assault and battery, to name just a few.

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