Unemployment at Will
LET'S START WITH A QUIZ. Which state has the most progressive, employee-oriented laws protecting workers from being fired for no good reason? Hint: it's not a state in the Northeast or on the West Coast. I'll reveal the answer later.
In this chapter I discuss the second foundation in law that defines the reach of free speech and other rights on the job: the fundamental principle in U.S. labor law known as the rule of employment at will. Employment at will is the default approach to employment arrangements between worker and employer. By “default” I mean that it sets the rules of employment— and specifically the rules about ending employment—in the absence of some sort of contract. And the rules are, well, that there are no rules. The essence of employment at will is that an employer can fire you at any time for any reason, and you have the right to leave a job at any time for any reason. It's almost as simple as that, although there are many variations and exceptions that make it not really as simple as that.
A sense of where the employment-at-will rule comes from and how it works is critical to understanding rights to—and limits to—freedom of expression at work and after work. The rule gives employers extraordinarily wide latitude to hire and fire “at will,” which is why a worker's supposedly free speech can get her in trouble with her employer, even when that speech has little or nothing to do with work or workplace. But there are many job situations that fall outside the at-will rule because of legal exceptions, giving workers the ability to resist or challenge a dismissal. After a brief look at the origins of employment at will, I will discuss its all-important exceptions and will close the chapter with a snapshot of the arguments, legal and philosophical, for and against this long-standing but controversial approach to employment.
A BIT OF HISTORY
The precise origins of our employment-at-will system is a subject of disagreement among legal scholars and labor historians. This disagreement isn't terribly surprising, given that the history here is largely about the emergence of an influential piece of common law. The term “common law” as I use it here refers to law that comes from court decisions by judges, rather than from statutes enacted by legislatures.[1] The development of common law is inevitably scattered and haphazard until a reasonably coherent picture comes into focus. When the process works the way it's supposed to, with case decisions and legal analyses building upon one another over time, the law that results “can become intelligible and rational,” writes law professor James Gordley. The principle of state action that occupied our attention in the last chapter is a form of common law, but of a more distinctive type: state action may be difficult to apply in some circumstances and is perpetually controversial, but it is a fairly simple principle and a single principle that affects only federal constitutional law. Employment at will, on the other hand, is a matter for the states rather than for the federal government, which means fifty separate legal arenas for the development of fifty different variations.[2]
The conventional version of the history of employment at will locates its origins in the second half of the nineteenth century, a time when courts were examining employment disputes on a case-by-case basis without consistent, codified rules to guide them. Sketching this history in their book Employment and Employee Rights, business ethicists Patricia Werhane and Tara Radin point to a “mishmash of decisions” that left courts “frustrated and confused” until the appearance in 1886 of a treatise, by New York lawyer Horace G. Wood, titled A Treatise on the Law of Master and Servant.[3] Before the development of U.S. employment law, a traditional “English rule” held that employment was presumed to be for one year if not otherwise specified. Wood wrote:
In this country a general hiring, or any hiring indefinite as to time, is a mere hiring at will, and may be put an end to at any time by either party, unless from the language of the contract itself it is evident that the intent of the parties was that it should at all events, continue for a certain period, or until the happenings of a certain contingency.[4]
In 1884, two years before this appearance of what came to be known as “Wood's rule,” a court case in Tennessee was decided that is frequently cited as the original judicial statement of employment at will. A store owner sued a nearby railroad that had told its employees they would be fired if they did business with the store. When the store owner raised the firing threat as evidence of the railroad's malicious intent to harm his business, the railroad responded by claiming the right to condition employment on anything it chose. This claim compelled the Tennessee Supreme Court to take up the question of what sorts of things people can legally be fired for. The short answer: anything at all. Siding with the railroad, the court made this now-famous pronouncement (in labor law circles, anyway) on the meaning of at-will employment:
Railroad corporations have in this matter the same right enjoyed by manufacturers, merchants, lawyers and farmers. All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong…. Trade is free; so is employment. The law leaves employer and employee to make their own contracts; and these, when made, it will enforce; beyond this it does not go. Either the employer or employee may terminate the relation at will, and the law will not interfere, except for contract broken. This secures to all civil and industrial liberty. A contrary rule would lead to a judicial tyranny.[5]
What sort of “judicial tyranny” the judges had in mind is hard to fathom, but we do know now that the United States stands virtually alone among advanced nations in perpetuating an at-will scheme of employment; other countries appear to have managed somehow to avoid said tyranny. A dissenting opinion in the 1884 Tennessee case foreshadowed the kind of free speech concerns about coercive practices raised by employment at will that motivate this book:
The principle of the majority opinion will justify employers, at any rate allow them to require employees to trade where they may demand, to vote as they may require, or do anything not strictly criminal that employer may dictate, or feel the wrath of employer by dismissal from service.[6]
According to some legal and labor historians, this version of the history of employment at will tells only part of the story. The idea that employment at will was abruptly invented by Horace Wood and late-nineteenth-century courts glosses over earlier developments. An alternative reading of history is that at least eight states had adopted employment at will before 1880, three of them before the Civil War.[7] Another suggests that the origins in practice of employment at will go much further back, it having appeared “in colonial times due to the needs of an agricultural economy characterized by labor scarcity, and not in the late-nineteenth century in order to meet the needs of capital in an industrial society.”[8] I'll leave that debate to the historians. Clearly the events of the late nineteenth century catalyzed the growing influence of employment at will as a formal legal rule. Early in the twentieth century the U.S. Supreme Court cemented the rule's power in a pair of cases establishing the employer's unfettered ability to control employee hiring and termination as a constitutionally protected property right.[9] By that time it had become the default employment arrangement in the United States.
EXCEPTIONS
Although the essence of employment at will—an employer can fire you for any reason or no reason, at any time—is stark and to the point, its actual meaning in the real world of jobs and employers is narrowed by exceptions that limit how and when it applies. These exceptions are important to understanding how the law treats employee speech because they erect limits to the circumstances in which an employer can fire someone for his expressive activity. Some of these limits take the form of common-law exceptions, which is to say exceptions crafted or carved out over time by judicial decisions. Other exceptions are statutory, written into the law by legislatures. When state legislatures get involved in these matters, however, the goal is not always to create exceptions or expand those that judges have carved out. Sometimes what the legislature has in mind is narrowing an exception—pulling the law back from the common-law places to which judges have already taken it.
A discussion of exceptions begs for a necessary clarification about the legal roots of employment at will. I mentioned earlier that the history of employment at will is largely a story of the development of an area of common (judge-made) law. True enough as history, but the fact that state legislatures have been willing to shape how it works in practice by writing exceptions into law (or, at times, narrowing those exceptions) means that employment at will isn't properly labeled a “common law doctrine” in the sense that lawyers use the term “doctrine” to describe a rule that arises from legal precedent. It's really more of an idea or a principle on which the employer-employee relationship is built. Patricia Werhane and Tara Radin in their book on rights at work call it “the philosophical underpinning of employment practices in the United States.”[10]
In discussing exceptions, it bears repeating that employment at will does not apply where an explicit contract specifies terms and conditions of employment and dismissal. Most commonly, a contract could take the form of a written individual employment contract, or it could be a labor contract secured through collective bargaining. Beyond formal contracts, we can think of exceptions as being of three broad types: exceptions tied to categories (of people or behaviors), exceptions that result from implicit understandings, and exceptions based on public policy. Let's take them in turn.
CATEGORY-BASED EXCEPTIONS
By category-based exceptions, I mean limits to employment at will that are based on identifying specific categories of people or of behavior that are given legal protection from otherwise arbitrary actions by an employer to punish or dismiss. Although the regulation of employment-at-will rules has been largely a state-by-state enterprise, category-based exceptions represent the area where federal government involvement in creating exceptions has been greatest. We can point first to the 1930s and the creation of the National Labor Relations Act (NLRA), which barred employers from punishing or firing workers for participating in union activity.[11] With the NLRA in place, union organizing led to collective bargaining agreements protecting workers from being fired without good reason (“just cause” in labor legalese) and incorporating due-process mechanisms (such as grievance procedures) for when individuals challenge discipline or discharge.
A few decades later, the federal government enacted civil rights legislation, especially Title VII of the Civil Rights Act of 1964, which created category-based exceptions to employment at will based on individual characteristics (race, color, religion, sex, and national origin).[12] Congress later added protections related to age, illness, disability, and pregnancy status, among others.[13] Some states have put in place employment protections for individual attributes that aren't addressed in federal law. Roughly half the states, for instance, have laws that bar employment discrimination based on marital status. A smaller number of states (fewer than a dozen) and some municipalities have laws prohibiting discrimination based on sexual orientation, and some states bar discrimination based on an individual's arrest record.[14]
The wide latitude allowed by employment at will means employers can send you packing if they don't like your activity choices after work. To many this seems ludicrous, and an encouraging development in the states is the creation of laws that protect employees from being punished or fired for off-work behavior—activities engaged in on one's own time. This punishment has come to be known in civil liberties circles as “lifestyle discrimination,” and we find in the states a hodgepodge of laws creating protections for specific activities. The most common laws are those protecting the consumption of certain legal products; tobacco and alcohol, with powerful lobbies behind them, have been the focus. Over two dozen states protect off-work tobacco use against employer discrimination (many of the laws the result of a visible industry-led “smokers rights” campaign during the 1990s);[15] several states protect alcohol consumption as well. These laws typically carry a qualification about the off-work product consumption not interfering with employee performance or with the operation of the business. Some laws exempt certain industries or employer types. For example, Missouri's law protecting off-work use of tobacco and alcohol doesn't apply to religious organizations or to “not-for-profit organizations whose principal business is health care promotion.”[16] Taken at face value, and illustrating rather nicely the hodgepodge effect of these laws, it appears that a nonprofit hospital in Missouri can fire you for having a cocktail after work, but a for-profit hospital cannot.
Many states have laws protecting political activity by employees. Although the approach and emphasis vary, these laws are plainly relevant to the issue of employee speech. Some of these laws are designed to prevent employers from imposing their own political ideology on employees, some are intended to prevent employers from penalizing workers for their off-work political involvement, and some are designed to protect employees' ability to vote or seek elective office. For people with government jobs, there is the additional complication that seeking or holding elective office might create a conflict with their government service. A small number of states offer broad protections for just about any legal off-work activities. I'll have more to say about these kinds of laws in Chapters 4 and [5]where I discuss the legal status of employee expression in public- and private-sector workplaces.
In sum, category-based exceptions to employment at will are laws protecting a person from being fired because of some category of personal identity or behavior. An employer can still fire someone for no particular reason, or for an arbitrary reason, as long as there are no obvious indications that one of these categories of personal identity or protected behavior is the real reason for the termination.
IMPLICIT AGREEMENT EXCEPTIONS
An employer who fires someone can land in legal hot water, even when there is no written employment contract, if the (now ex-) employee can convince a court that her employer acted in violation of an enforceable obligation of some sort. States have recognized two key forms of these implicit exceptions: One is the more common implied contract (that's shorthand for the legalism “implied-in-fact contract”) exception. The other is the less common, if verbally more cumbersome, implied-covenant-of-good-faith-and-fair-dealing exception.[17]
Implied contract exceptions to employment at will, recognized by courts in all but a dozen states, arise when employers give concrete indications to workers that certain policies and procedures will be followed in disciplinary or termination situations. These indications can be conveyed orally or in writing. For example, procedures spelled out in employee handbooks or policy manuals can give rise to an implied contract unless the handbook includes an explicit disclaimer that the document does not constitute a contract and does not alter the employee's at-will status. Not surprisingly, these disclaimers are very common.
In fact, it is remarkable how far employers—or perhaps more accurately their lawyers—feel they must go to ensure that no court down the line will infer any conceivable implied-contract exception to employment at will. Consider a case involving Wal-Mart in Arizona. A store pharmacist named Jerry Roberson got in trouble for having an argument with another store employee in front of customers; he was fired the next day following a “coaching” session with a superior when he refused to sign a performance improvement plan.[18] Two things are noteworthy about the case. First is the almost comically repetitious measures Wal-Mart used to make sure it was really clear that employment was indeed at-will. When Roberson applied for the job, he signed an application that included these statements:
I understand that this is not a contract for employment and that, even if employed, I will remain terminable-at-will and free to resign at any time I wish.
I… understand that if hired I will be a “terminable-at-will” employee, and that my employment and compensation can be terminated with or without cause and with or without notice, at any time.
I further understand that no personnel recruiter or interviewer or other representative of the company other than the President of Wal-Mart Stores, Inc., or Vice President of Personnel has any authority to enter into any agreement for employment for any specified period of time.
Once hired, Roberson received an employee handbook, which he acknowledged reading, that included these passages:
The Company reserves the right to terminate any associate's employment at Wal-Mart's discretion. Furthermore, nothing stated in this handbook or by any member of management is intended to create any guarantees of any certain disciplinary procedures.
We do not work under contracts at Wal-Mart. Employment depends on performance and the Company's needs…. If management determines a working relationship should be dissolved, it may be done totally at Wal-Mart's discretion. Likewise, you are not under contract and may resign from the Company at any time.
The Associate Handbook is not intended to create any contractual right in favor of you or the Company. The Company reserves the right to change any section of the Associate Handbook at any time.
Clear enough? With perhaps a hint of wry sarcasm, the judge who wrote the Arizona appeals court ruling in Roberson's lawsuit called Wal-Mart's employment-at-will disclaimers “clear and comprehensive to the point of redundancy.”[19]
The second interesting thing about Roberson's case is that despite the redundancy about there being no contract, no way, no chance, not ever, there was one judge on the appeals court panel who saw here a possibly legitimate claim for breach of (an implied) contract! It turns out that the company's standard policy around disciplinary “coaching” included a right for the misbehaving employee to have a “decision-making day” to think about things before signing off on the action plan, and Roberson wasn't given that day. An employer is certainly free to say in an employee handbook that the job is at-will, said the dissenting judge, but once the employer creates a procedure “and by its language or actions encourages reliance thereon, he is no longer free to selectively abide by it.”[20] That view didn't carry the day—the court sided with Wal-Mart—but the fact that even one appeals court judge detected a possible implied contract in this case goes a long way toward explaining why employers feel compelled to hit employees over the head with at-will disclaimers. For employers, protecting the power to fire workers “at will” means preserving the unmitigated right to punish employee speech without repercussions.
The implied covenant of good faith and fair dealing refers to an assumption that the parties in an employment relationship are dealing with each other fairly, in good faith, and without malice.[21] This exception to employment at will means that someone fired was not terminated in bad faith and that the employer was not driven by malice to do so. Or, to put it another way, people act in good faith when they live up to their obligations—not the ones set out in a specific contract but the obligations imposed by law regarding how contracts are generally supposed to be fulfilled. Viewed that way, this good-faith “covenant” is an implied aspect of every contract, no matter what the subject or context. However, only about a dozen states have recognized it as an exception to employment at will. One state is California, where a 1980 case involving airline worker Lawrence Cleary is often mentioned as the first to apply it to an employment situation. Fired after eighteen years on the job, Cleary sued American Airlines, charging he was wrongfully terminated for involvement in union organizing activities. A California appeals court said the length of Cleary's service combined with the airline's employment polices created an obligation not to terminate him without good cause or deprive him “of the benefits of the employment bargain … accrued during plaintiff's 18 years of employment.”[22]
An important thing to keep in mind about the implied covenant of good faith is that it applies even where there is no contract, so it's not just another way to frame a contract violation. The California court in Lawrence Cleary's case said that the covenant can potentially apply in any employment situation, even where no contract, written or implied, exists. An example of bad faith dealing that violates the covenant would be firing a long-time at-will employee shortly before retirement in order to deny him access to an anticipated benefit, such as a pension.[23]
The covenant of good faith and fair dealing, if widely applied, has the potential to inflict serious damage on the reach of employment at will, which explains why state courts have been reluctant to recognize and enforce it in work-related situations. Widespread acceptance of the covenant, labor law experts Michael Kittner and Thomas Kohler caution, “would completely undermine the at-will rule and make every discharge potentially reviewable by a third party.”[24] As a result, they point out, it is potentially the most powerful of employment-at-will exceptions, but it is also the least enforced.
PUBLIC-POLICY EXCEPTIONS
The most significant limitations on employment at will, and the most important for our purposes here, are known as “public-policy exceptions.” We can say generally that public-policy exceptions come into play when people are fired for reasons that run counter to an explicit public policy of the state, as defined in statutes, administrative regulations, court decisions, or constitutional provisions.[25] The devil, as always, is in the details. As with the various exceptions already discussed, the precise meaning of public policy that qualifies varies from state to state and at times from case to case. The vast majority of states recognize public-policy exceptions in some form. The best way to get a handle on how these exceptions work is to look at some examples.[26]
The case that is generally credited with launching the public-policy exception came out of California (which seems frequently in the vanguard of common-law developments in employment) in the late 1950s. A fellow named Peter Petermann was employed by the Teamsters Union as a business agent—an at-will employee of the union itself, not someone falling under a collective bargaining agreement. Petermann said he was instructed by the union to give false testimony—to commit perjury—in an upcoming appearance before a California legislative committee. During that appearance Petermann testified truthfully, and the next day the union fired him. Petermann went to court claiming wrongful termination on the grounds that being compelled to perjure oneself to avoid being fired is contrary to public policy. He lost in a trial court but won on appeal.
Up until that point, courts in many states had invalidated contracts and transactions found to be contrary to public policy, whatever that meant. In a 1928 case about a financial transaction (not employment), a California appeals court wordsmithed a broad definition: a violation of public policy is an action “injurious to the public or against the public good,” including actions that “undermine that sense of security for individual rights, whether of personal liberty or private property.”[27] Intent is what matters, added the court, not necessarily the actual result. Using this 1928 definition as a logical stepping stone, the court in Petermann in 1959 connected the dots between employment at will and public policy. Making someone's job contingent on committing a felony at the employer's behest, the court said, encourages criminal conduct, contaminates honesty in public affairs, and is “patently contrary to the public welfare.” The court concluded that “the public policy of this state requires” that actions by employers having these effects be struck down.[28]
Although it was in just one state and focused narrowly on situations where employees are pressured to break the law, the Petermann case hatched the public-policy exception to employment at will. The spread of the public-policy exception to other states began slowly—it was a decade after Petermann before another state recognized a public-policy exception—and it took more than two decades for half the states to follow suit.[29] In a 1981 decision that has since been frequently quoted for its pithy definition, the Illinois Supreme Court said that a matter of public policy “must strike at the heart of a citizen's social rights, duties, and responsibilities.”[30] That definition sounds like an umbrella that would readily encompass free speech, but as we'll see shortly, that hasn't been the case.
Meanwhile, in an influential law review article published in 1967, Lawrence Blades launched a broadside against employment at will as a relic of a preindustrial age and a threat to liberty:
Such a philosophy of the employer's dominion over his employee may have fit the rustic simplicity of the days when the farmer or small entrepreneur, who may or may not have employed others, was the epitome of American individuals. But the philosophy is incompatible with these days of large, impersonal, corporate employers; it does not comport with the need to preserve individual freedom in today's job-oriented industrial society.[31]
Blades's article is credited with influencing the spread of public-policy exceptions to employment at will, although it was not so influential as to bring about the kind of broad employee rights with due-process protections he really had in mind. Blades wanted courts to correct the imbalance of power between employers and workers by creating an all-purpose “abusive discharge” cause of action that would be defined as “interference with the freedom or integrity of the employee in respects which bear no reasonable relationship to the employment,” leaving courts to flesh out the details, the results of which would be “a detailed bill of rights for all employees.”[32] Heady stuff, but states weren't ready to go that far.
The public-policy exception initially covered illegal activity—situations where someone is fired (as in the Petermann case) for refusing to violate the law. As the exception spread, it expanded in scope in many states to include situations where one is fired for doing something that involves exercising a job-related right or fulfilling a legal obligation. For example, in many states you can't be fired for filing a worker's compensation claim, for making yourself available for jury duty, or for objecting to illegal behavior or reporting it to authorities (whistleblowing).
Even though most states now recognize a public-policy exception, as a practical matter the scope of protection against unfair dismissal is irregular, and it isn't clear how much of a counterweight to employment at will it really provides. According to labor law expert Clyde Summers, public-policy exceptions are “grudgingly applied,” with courts too eager to dismiss claims when the public policy involved isn't explicitly spelled out in a statute or constitutional provision. Summers points to disturbing outcomes that result from this approach; in one, an employee raising product safety issues was fired for being a troublemaker, and the individual's wrongful-discharge claim went nowhere because no statute explicitly required that products be safe.[33]
What is required to find that a firing offends public policy varies by state. Some states take a narrow approach, making it possible to challenge a dismissal only when the state's legislature has explicitly defined something by statute as contrary to public policy. (An even narrower approach is to recognize a cause of action for a public-policy violation only if the law says you can't be fired for doing the thing that got you fired.) Other states pursue a broader approach, allowing that a firing can offend public policy when a court says so, even though no legislative statute explicitly does. In other words, some states are willing to accept common-law ( judge-made) public-policy exceptions, while other states recognize statutory exceptions only.
Public-policy exceptions are still not recognized at all in about a half-dozen states.[34] One is New York, where the state's highest court has repeatedly declined opportunities to create a common-law exception, insisting instead that “major alterations in employment relationships are best left to the Legislature.”[35] New York does happen to be one of the few states with a broadly written law providing so-called “lifestyle discrimination” protection for off-work activities, but otherwise it remains a jurisdiction that is especially friendly to the concept of employment at will.
EMPLOYMENT AT WILL AND FREE SPEECH
Does employment at will mean that people forfeit their free speech rights when they enter the workplace door? The answer, as you may have guessed based on the legal twists and turns associated with employment at will, is an unqualified “it depends.” This is an answer with unfortunate consequences, because rights that are hard to identify can become rights that are hard to exercise. A person's ability to speak freely, not just at work but also after work, without worrying that it could cost him his job depends on whether the at-will rule applies. Someone who isn't sure whether he can be fired for speech is more inclined to be circumspect in his expressive activities. The challenge to free speech posed by employment laws that are complex and sometimes ambiguous is compounded by an imbalance of power and information separating workers and employers. Individuals do not routinely hire attorneys to help them understand their everyday rights—but employers, of course, do precisely that, giving them a clear, informed picture of their power to regulate worker behavior.
For a private-sector worker who is employed unambiguously at-will, with no exceptions that apply, rights to expression (beyond whistleblowing, which I will come to shortly) are largely nonexistent. By some estimates this description applies to well over half of the private-sector workforce in the United States.[36] For many workers and situations, exceptions do potentially apply, and some of them have clear free speech implications. I mentioned, under the label of category-based exceptions, that some states have laws with specific protections against an employer's disapproval of individual political activity, and a small number of states offer broad protections for just about any legal off-work behavior, as long as it doesn't interfere with operation of the employer's enterprise.
For protecting expressive activity from the wrath of employment at will, the fertile ground lies in the public-policy exception. First Amendment devotees like to remind us how pivotal free speech is to a working democracy, and many states disallow arbitrary job terminations that threaten public policy as it exists in our laws and Constitution. So you'd think that employment at will might end where the First Amendment begins—that the public-policy exception would prevent employers from firing people for exercising (non-work-related) First Amendment rights. You'd be wrong. I will mention a couple of the many cases that illustrate the unwillingness of courts to let free speech protections in federal or state constitutions interfere with employer property rights to manage employment.
The first case involved Lawrence Korb, a corporate vice president for the defense contractor Raytheon who was responsible for the company's relations with Congress and various government agencies, including the Defense Department. With his employer's permission, Korb in his spare time served on the board of a nonprofit organization devoted to raising public interest in national security issues and preventing nuclear war. In 1986 Korb participated in a press conference held by this organization that drew news coverage, including a newspaper article that mentioned Korb and that named Raytheon. Some military officials complained to Raytheon, which decided to remove Korb from his job; the company offered him an alternative position that Korb said was inferior in salary, benefits, status, and responsibility. Korb sued in Massachusetts Superior Court alleging wrongful termination on the grounds that his firing violated the state's public policy supporting freedom of speech (a free speech clause in the Massachusetts Declaration of Rights). In Korb v. Raytheon the court sided with the company, holding that as a lobbyist (rather than just any employee), Korb's private speech ran counter to the firm's interests and that “there is no public policy prohibiting an employer from discharging an ineffective at-will employee.”[37]
The second case occurred in Wyoming, where two employees at a newspaper were fired after refusing as a matter of conscience to comply with a management order to wear buttons urging a no vote on an upcoming unionization vote. The employees argued in a wrongful-discharge lawsuit in state court that the newspaper violated public policy when it fired them for exercising free speech rights found in the Wyoming constitution. The Wyoming Supreme Court disagreed, concluding in Drake v. Cheyenne that an at-will employee who refuses to comply with a directive like this at work during work hours doesn't violate public policy. The court wryly added, “The fact that irony exists in this case because the employer purports to be an advocate of free speech does not create a public policy exception to at-will employment.”[38]
These cases are complicated by the fact that neither involved speech that was wholly private and unrelated to employment. But that's when people tend to get in trouble for their expressive activity—when it makes the employer take notice. In the Raytheon case, the court hid behind the assumption that an employee's expression of personal opinions at odds with the aims of the corporation made him ineffective. In the Drake case, the court hid behind the fact that the compelled speech was to occur on the employer's premises. In either of these cases the court could have used the occasion to assert that a free speech-based firing implicates public policy, but neither was willing to go there.
A much-noticed case in the early 1980s out of Pennsylvania brought a federal appeals court to the defense of an insurance company employee who refused to participate in his employer's lobbying effort for insurance reform. The outcome was one of the first and one of the few to say clearly that free speech by a private-sector employee can be a public-policy exception to employment at will: “The protection of an employee's freedom of political expression,” said the court, “would appear to involve no less compelling a societal interest than the fulfillment of jury service or the filing of a workers' compensation claim.”[39] But it turned out that this decision had no legs. Pennsylvania courts elected not to follow it, believing that you can't claim wrongful discharge under a provision of the Constitution unless you can show state action, which is almost impossible when the employer punishing the speech is a private corporation.[40] Free speech may be the heart of constitutional law, but it's apparently the appendix of employment law.
The one form of expressive activity that has gained widespread protection from employer punishment or termination is whistleblowing. The idea that workers deserve protection from retaliation for reporting on or participating in investigations into employer wrongdoing is a widely recognized exception to employment at will in common law, and it has been the basis for both state and federal statutes.[41] At the state level, whistleblowing statutes are common, but they vary substantially in their coverage of employers, employees, and circumstances. At the federal level, protection for whistleblowers has also advanced noticeably in recent years. In 1991, Congress created sentencing guidelines for corporate crime offenses, guidelines that added incentives for organizations to protect whistleblowers internally. In the wake of corporate scandals that were dominating headlines in the business press around the turn of the century, Congress wrote broader whistleblower protections into the Sarbanes-Oxley Act of 2002.[42]I will have more to say about whistleblowing in the next chapter.
THE FUTURE OF EMPLOYMENT AT WILL
Employment at will persists as the dominant employee relations policy in the United States. An often-cited but clearly dated estimate from the 1980s suggested that 2 million nonunion private-sector workers were dismissed annually without the right to a hearing, of whom 150,000 would have had legitimate wrongful-discharge claims if just cause were required for firing someone.[43] Updating those numbers in a quick-and-dirty way—using growth in nonagricultural payroll employment 1984-2004 as a multiplier— suggests that current numbers might be on the order of 2.7 million dismissed annually and over 200,000 dismissed without just cause.[44] Is this a significant number in an economy with an overall civilian labor force in the neighborhood of 150 million? One can argue about that in relative terms, but by itself it's certainly a big number—almost a quarter of a million people with lives disrupted by what may have been arbitrary employer action each year is hardly trivial. And let's not forget the inevitably hidden statistics behind these numbers: the uncountable many who are discouraged or even intimidated from engaging in legitimate behavior (like expressive behavior) because arbitrary discipline without due process is readily available to their employers.
The main story line of the past forty years in employment law is found in the exceptions written into law—and in the dramatic rise of litigation that came with them. Before 1980 there were few wrongful-discharge claims of any type, and by the early 1990s there were approximately 20,000 such cases on court dockets.[45] The volume of federal cases filed alleging employment discrimination rose by over 2100 percent between 1970 and 1990 (compared with just 125 percent growth in the overall federal civil caseload during that period).[46] But have changes in the law and a flood of litigation translated into an actual, meaningful weakening of employment at will? For the most part, exceptions don't reduce the overall number of workers whose employment is “at will,” but increase the number of situations where an at-will employee can challenge a dismissal. There's no question that these exceptions create opportunities for people on the receiving end of the employment ax to have their day in court—depending, of course, on why you were fired and what state you happen to be in.
Experts differ, however, on whether exceptions amount to significant erosion of the employment-at-will rule. On one side are those, like labor lawyer Jürgen Skoppek, who fear that the exceptions are expanding to swallow the rule: “Prohibiting discharge for the exercise of a statutory or constitutional right can theoretically encompass the whole universe of social activity. Almost any activity can be linked to the exercise of such a right.”[47] Others say the exceptions, though numerous, fail to tilt the balance of power away from employers to any significant degree because the courts that actually decide individual wrongful-discharge cases are reluctant to apply them. Clyde Summers describes judges as generally motivated by a belief that employers deserve “unfettered freedom to determine who should be employed and that workers are subordinate to the employer's decisions—however arbitrary they may be.”[48] Legal exceptions to employment at will do not dilute its power if judges are unwilling to recognize and apply those exceptions.
One state where the rule has been swallowed, not by exceptions but by an act of the legislature, is (of all places) Montana, which has on the books a wrongful-discharge statute that goes a long way toward effectively killing employment at will. Montana's Wrongful Discharge from Employment Act, adopted in 1987, is unique in allowing employees to sue for wrongful discharge if an employer does not have “good cause” for the termination.[49] “Good cause” means “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.” The Montana law also provides for a wrongful-discharge claim if a person is fired for a refusal to violate public policy (or for reporting a violation), or if an employer violates its own personnel policies. Although the idea of requiring just cause for firing someone seems inherently friendly to workers, the Montana law was backed by Montana business interests hoping to do away with large jury awards in wrongful termination cases in favor of a more predictable and manageable legal environment.
Taken at face value, Montana would seem to have largely abandoned employment at will for workers who are on the job past a probationary period (which the law defines as six months if the employer doesn't say differently). After all, a just-cause requirement is essentially the opposite of employment at will. In practice, though, the test of the law's reach lies in how courts interpret an employer's “legitimate business reason.” In one important case, the Montana Supreme Court said a legitimate business reason is “neither false, whimsical, arbitrary or capricious, and it must have some logical relationship to the needs of the business.”[50] It's better than nothing but hardly a high standard; courts appear willing to give Montana's employers quite a bit of latitude to staff and run their business as they see fit. Nevertheless, this unusual (in the United States) law does give workers a genuine just-cause environment in which horribly arbitrary dismissals under employment at will can become a thing of the past. (And, yes, for those playing along at home, “Montana” is the answer to the quiz at the start of this chapter.)
Unjust dismissal laws similar to Montana's have been proposed in several states. Economist Alan Krueger shows that such laws are more likely to be offered in states that have already departed significantly from employment at will. We tend to assume that employers prefer minimal interference with their “property right” to manage employment so would oppose a just-cause requirement like Montana's. Krueger suggests, however, that the uncertainty that employers face with what he calls “employment-sometimes-at-will” leads business interests to consider a just-cause requirement as a plausible alternative to the inherent risks of legal costs and damage awards that are part of the unpredictable system they have now.[51] That's basically how it went in Montana, which twenty years after the passage of its wrongful-discharge law remains the only state to have put in place such a requirement.
In the early 1990s, the Uniform Law Commissioners, a national body promoting uniform state laws in areas where that might be a good idea, proposed a Model Employment Termination Act (META) that would mandate a just-cause standard for termination in place of employment at will. The idea was to create a balanced measure that would guarantee to workers certain material rights to due process and job security while giving employers relief from the unpredictable risks of current wrongful-discharge law. The emphasis in resolving disputes would be on arbitration before court action. One law professor involved in drafting META points to its “cheaper, faster, and more informal enforcement procedures,” allowing employers to maintain efficient operations while freeing employees from arbitrary treatment.[52] META, like the Montana law, hasn't caught on. At all.
With the alternatives languishing, the system of employment at will remains both powerful and controversial. Defenders argue that employment at will makes sense on grounds of fairness, liberty, and efficiency in a competitive marketplace for labor.[53] Critics reject these market assumptions as flawed given the imbalance of power in the workplace, and they assail employment at will as a uniquely oppressive system (unique among industrialized nations) that exploits employee vulnerabilities and treats employer prerogative as boundless.[54] In theory it's a way to reconcile competing interests—with employers and employees both able to exit the arrangement “at will”—but in practice it's a system well suited to a society that wants to privilege the interests of capital over labor.[55] For those with the good fortune to be working in occupations for which demand for labor exceeds supply, there is potentially a balance of interests that dilutes the force of employment at will. For everyone else, employment at will is an instrument of dominion, giving employers nearly limitless autonomy and flexibility to manage labor and its costs without fussing over such niceties as due process in the workplace or just cause for employee firings.
Even with employment at will, employers are often advised by attorneys and consultants to maintain policies of “progressive discipline”—communicating expectations, giving workers opportunities to improve performance, documenting disciplinary steps, and establishing grievance systems.[56] Progressive discipline has some of the look and feel of due process, but it doesn't replace employment at will. The Wyoming Supreme Court made this point explicit in the case mentioned earlier where two newspaper employees were fired for refusing to wear antiunion buttons. As part of their lawsuit, the two claimed that the newspaper's practice of progressive discipline amounted to a kind of oral contract guaranteeing them some degree of due process. The court rebuffed that argument with dispatch, deciding that “subjective understandings and expectations do not establish an employment contract provision.”[57] Looking progressive and fair is all well and good, but that need not get in the way once the ax starts its downward trajectory. Or as one lawyer giving advice to managers in a human resources trade magazine put it, “Employers should fight to maintain the right to be arbitrary, capricious, whimsical, mean, cruel, etc. They just shouldn't act that way.”[58]
My aim in Chapter 2 and this chapter was to lay the groundwork for the discussion that comes next on the specific legal status of expression in and around the workplace. The two key principles of law I have discussed, state action and employment at will, are quite different from each other. State action is an aspect of federal constitutional law that speaks to whether a private party is legally responsible for the rights-based consequences of an action. Employment at will, a concept in state law, is about absolving employers from responsibility for the rights-oriented consequences of their actions. But while different in emphasis, these principles are alike in importance and controversy. Both are core principles of their respective areas of law. Both are perpetually debated as falling somewhere between the essence of freedom and the antithesis of it. Both sides of debates around both doctrines cling to liberty interests as their touchstone and see constraints on liberty as the weakness in the other side's point of view.
Finally, both principles have outlasted experts writing premature obituaries. Four decades ago, law professor Jerre Williams wrote an influential article asserting that “the sun is setting on the concept of state action as a test for determining the constitutional protections of individuals.”[59] More recently, business law professor Deborah Ballam insisted that employment at will “has no future.”[60] Yet both of these critical principles remain alive and well, together forming the legal basis for employer hostility to freedom of expression in the American workplace. How hostile? How much freedom? That's where we turn next.
注释：
[1]The term “common law” has a second meaning: the body of law on contracts, torts, and property that has its origins in English royal courts and that forms the conceptual basis for much of American civil law. James Gordley, “The Common Law in the Twentieth Century: Some Unfinished Business,” California Law Review 88 (2000): 1817.
[2]Given these variations, I hasten to caution that comprehensiveness is not the goal in my discussion of employment at will. The cases and examples I mention in the following pages are illustrative, but in no way exhaustive.
[3]Patricia H. Werhane and Tara J. Radin (with Norman E. Bowie), Employment and Employee Rights (Malden, MA: Blackwell, 2004), 56.
[4]H.G. Wood, A Treatise on the Law of Master and Servant: Covering the Relation, Duties and Liabilities of Employers and Employees, 2nd ed. (Albany, NY: 1886), online book, (accessed May 16, 2006), 276-277 (emphasis added).
[5]Payne v. Western & Atl. R.R., 81 Tenn. 507: 519-520 (1884) (emphasis added).
[6]Ibid., 543-544.
[7]Andrew P. Morriss, “Exploding Myths: An Empirical and Economic Reassessment of the Rise of Employment At-Will,” Missouri Law Review 59 (1994): 679-773.
[8]Deborah A. Ballam, “Exploding the Original Myth Regarding Employment-at-Will: The True Origins of the Doctrine,” Berkeley Journal of Employment and Labor Law 17 (1996): 91-130.
[9]Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915). See Lawrence E. Blades, “Employment-at-Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power,” Columbia Law Review 67 (1967): 1416-1419, for a discussion of these cases and their effect on employment at will.
[10]Werhane and Radin, Employment and Employee Rights, 55.
[11]National Labor Relations Act, 29 U.S.C. § 157 and 29 U.S.C. § 158.
[12]Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
[13]See Werhane and Radin, Employment and Employee Rights, 59.
[14]For a thorough review of exceptions based on off-work behavior, see Stephen D. Sugarman, “‘Lifestyle Discrimination’ in Employment,” Berkeley Journal of Employment and Labor Law 24 (2003): 416-420.
[15]Gilbert M. Roman, “Smoking Outside of Workplace Sparks New ‘Civil Rights’ Laws,” Rocky Mountain News, July 31, 1994, (accessed May 17, 2006).
[16]Missouri Revised Statutes, §290.145, (accessed May 17, 2006).
[17]Effective analyses of the implied-contract and covenant-of-good-faith exceptions are found in Charles J. Muhl, “The Employment-At-Will Doctrine: Three Major Exceptions,” Monthly Labor Review, January 2001, 3-11; Clyde W. Summers, “Employment at Will in the United States: The Divine Right of Employers,” Journal of Labor & Employment Law 3 (2000): 65-86; and Werhane and Radin, Employment and Employee Rights, 62-66. These three sources inform my discussion of implicit agreement exceptions in this section.
[18]Roberson v. Wal-Mart, 202 Ariz. 286 (2002). How big is Wal-Mart and how often are they sued? A search for “Roberson v. Wal-Mart” using a legal database search engine yields three different cases by that name since the mid-1990s, involving three different Robersons in three different states. Change “Roberson” to “Robertson” and four more cases, involving four different Robertsons, show up.
[19]Ibid., 293. The passages included here from the company's employment application and employee handbook are quoted from the Arizona Court of Appeals ruling in the case. Roberson v. Wal-Mart, 202 Ariz. 286, 288-289.
[20]Ibid., 296.
[21]The classic formulation of the implied covenant is found in Restatement (Second) of Contracts § 205 (1981). For an analysis of when and how it applies, see Thomas A. Diamond and Howard Foss, “Proposed Standards for Evaluating When the Covenant of Good Faith and Fair Dealing Has Been Violated: A Framework for Resolving the Mystery,” Hastings Law Journal 47 (1996): 585-633.
[22]Cleary v. American Airlines, 111 Cal. App. 3d 443 (1980), 455.
[23]Paul Falcone, “A Legal Dichotomy?” HR Magazine, May 1999, 110– 120.
[24]Michael Kittner and Thomas C. Kohler, “Conditioning Expectations: The Protection of the Employment Bond in German and American Law,” Comparative Labor Law & Policy Journal21 (2000): 290.
[25]The U.S. Supreme Court in the late 1940s weighed in with a definition: “The public policy of any state is to be found in its constitution, acts of the legislature, and decisions of its courts.” Building Service Union v. Gazzam, 339 U.S. 532 (1949), 537.
[26]My synopsis here of the history of the public policy exception draws on a more extensive review found in Deborah A. Ballam, “Employment-at-Will: The Impending Death of a Doctrine,” American Business Law Journal 37 (2000): 653-687.
[27]Noble v. City of Palo Alto, 89 Cal. App. 47 (1928), 50-51.
[28]Petermann vs. International Brotherhood of Teamsters, 174 Cal. Ap. 2d 184 (1959), 189 (emphasis added).
[29]Muhl, “The Employment-At-Will Doctrine: Three Major Exceptions,” 5.
[30]Palmateer v. International Harvester, 421 N.E.2d 876 (1981), 878-879.
[31]Blades, “Employment-at-Will vs. Individual Freedom,” 1416.
[32]Ibid., 1432-1433.
[33]Geary v. United States Steel Corp., 319 A.2d 174; Summers, “Employment at Will in the United States,” 73.
[34]Muhl, “The Employment-at-Will Doctrine: Three Major Exceptions,” 4.
[35]Horn v. New York Times, 100 N.Y.2d 85 (2003), 93.
[36]Estimates of the size of the actual “at-will” American workforce are very difficult to come by given variations in state laws addressing exceptions to employment at will, and given no easy way to tally contractual exceptions. The Princeton, New Jersey-based National Workrights Institute estimates that three-fourths of all workers are employed at will. “Wrongful Discharge,” legislative brief, National Workrights Institute, (accessed September 19, 2006). A San Francisco-based nonprofit organization called Workplace Fairness asserts that “most workers” are employed at will. Here Today, Gone Tomorrow, Workplace Fairness, (accessed September 19, 2006).
[37]Korb v. Raytheon, 410 Mass. 581 (1991), 584.
[38]Drake v. Cheyenne, 891 P.2d 80 (1995), 82.
[39]Novosel v. Nationwide Insurance Company, 721 F.2d 894 (1983), 899. This case, concerning state law governing employment at will in Pennsylvania, was heard by a federal court sitting “in diversity” because of the multistate character of one of the parties. The federal court interprets and applies state law in such situations.
[40]Sarah Borse v. Piece Goods Shop, Inc., 963 F.2d 611 (1992).
[41]A recent review and analysis of the law on whistleblowing in private-sector employment and its relation to employment at will is found in Frank J. Cavico, “Private Sector Whistleblowing and the Employment-at-Will Doctrine: A Comparative Legal, Ethical, and Pragmatic Analysis,” South Texas Law Review 45 (2004): 543-645.
[42]See Lewis D. Lowenfels and Alan R. Bromberg, “Implied Private Actions under Sarbanes-Oxley,” Seton Hall Law Review 34 (2004): 775-806.
[43]Jack Stieber, “Recent Developments in Employment-at-Will,” Labor Law Journal 36 (1985): 558.
[44]The multiplier is based on nonfarm employment growth reflected in statistics reported by the U.S. Bureau of Labor Statistics and reported in Betty W. Su, “The U.S. Economy to 2014,” Monthly Labor Review, November 2005, 23. The overall civilian labor force estimate in the following sentence is from the same source.
[45]Thomas C. Kohler, “The Employment Relation and Its Ordering at Century's End: Reflections on Emerging Trends in the United States,” Boston College Law Review 41 (1999): 106-107.
[46]John J. Donohue III and Peter Siegelman, “The Changing Nature of Employment Discrimination Litigation,” Stanford Law Review 43 (1991): 985.
[47]Jürgen O. Skoppek, “Employment-at-Will in Michigan: A Case for Retaining the Doctrine,” Mackinac Center for Public Policy, (accessed May 20, 2006).
[48]Summers, “Employment at Will in the United States,” 77.
[49]Montana Code Annotated Title 39, Chapter 2, § 901-905 (2003). My comments on the law and how it works in practice are based on William L. Corbett, “Resolving Employee Discharge Disputes under the Montana Wrongful Discharge Act (MWDA), Discharge Claims Arising apart from the MWDA, and Practice and Procedure Issues in the Context of a Discharge Case,” Montana Law Review 66 (2005): 329-404; Andrew P. Morriss, “How Montana Employers Got Rid of the Employment-at-Will Rule,” Labor and Employment Law 34(3) (2006), (accessed September 19, 2006).
[50]Buck v. Billings Chevrolet Inc., 248 Mont. 281-282 (1991). See also Donald C. Robinson, “The First Decade of Judicial Enforcement of the Montana Wrongful Discharge from Employment Act (WDEA),” Montana Law Review 57 (1996): 375-422.
[51]Alan B. Krueger, “The Evolution of Unjust-Dismissal Legislation in the United States,” Industrial and Labor Relations Review 44 (1991): 644-660.
[52]Theodore J. St. Antoine, “The Model Employment Termination Act: A Fair Compromise,” Annals of the American Academy of Political and Social Science 536 (1994): 96. For a thorough critique of the Model Act, see Kenneth A. Sprang, “Beware the Toothless Tiger: A Critique of the Model Employment Termination Act,” American University Law Review 43 (1994): 849-924.
[53]See, for example, Richard A. Epstein, “In Defense of the Contract at Will,” University of Chicago Law Review 51 (1984): 947-982; Jesse Rudy, “What They Don't Know Won't Hurt Them: Defending Employment-at-Will in Light of Findings That Employees Believe They Possess Just Cause Protection,” Berkeley Journal of Employment and Labor Law 23 (2002): 307-367.
[54]See, for example, Blades, “Employment-at-Will vs. Individual Freedom”; Summers, “Employment at Will in the United States”; Tara J. Radin and Patricia H. Werhane, “Employment-at-Will, Employee Rights, and Future Directions for Employment,” Business Ethics Quarterly 13 (2003): 113-130.
[55]This argument is fleshed out in Fred Magdoff and Harry Magdoff, “Disposable Workers: Today's Reserve Army of Labor,” Monthly Review 55 (2004), (accessed October 18, 2006).
[56]Jathan Janove, “Keep 'Em at Will, Treat 'Em for Cause,” HR Magazine, May 2005, 111-117.
[57]Drake v. Cheyenne, 891 P.2d 80 (1995), 83.
[58]Janove, “Keep 'Em at Will, Treat 'Em For Cause,” 117.
[59]Jerre S. Williams, “The Twilight of State Action,” Texas Law Review 41 (1963): 389.
[60]Ballam, “Employment-at-Will: The Impending Death of a Doctrine,” 687.
