Why At-Will Employment Exists - Essay Example

The year 1959 saw the first judicial exception for this rule by a California Court of Appeal. In 1980, the Supreme Court of California, in a landmark case that involved ARCO, endorsed this rule as articulated earlier by the court of appeal. The actions that resulted from employees became known as Tameny actions in California for wrongful termination that violated public policy (Barbash et al 11).

            Several statutory common law exceptions have been in existence since 1959. The common law protects employees from retaliation from an employer if they are ordered to perform something illegal. The burden of proof, however, remained with the employee. The legislature of Montana passed the WDE Act that, although purporting to preserve the concept in law, expressly enumerates wrongful discharge actions on a legal basis (Barbash et al 12). It was the only state in the US that chose to modify the at-will employment rule, doing so in 1987.

Why it exists

             Employment with a firm is at-will, meaning that employment is bound to be terminated at whichever time with or sans notice or cause (Barbash et al 20). This also means that a firm can terminate one’s employment at any time by either issuing or not issuing a cause or notice. Additionally, the firm may also require altering the status of employment, hours of employment, schedule, or demotion at its discretion with or sans cause or notice. While the firm will generally adhere to progressive discipline, they are not obligated or bound to do this.

As a team member employed at will, in any manner, an individual does not have a guarantee that they will be employed for a particular period (David 20). No one at the firm, except the president, in a signed contract can make any promise or representation to a team member that they are anything but an at-will team member. Supervisors, managers, or employees, who make such representation or promise to a team member, are not authorized to carry out this duty.

Exceptions

            For at-will employees, there are exceptions given to the general rule. Under the public policy in the laws of a majority of the states, an employer cannot terminate the employment of a team member if it is a violation of a public policy that is well established by the state (Ford et al 52). For instance, employers may generally not fire employees if they make a compensation claim since the policy requires them to pay compensation to the workers as clearly set out by state statute. Terminating employment for the reporting of illegal activity is also a violation of public policy.

            Another exception has to do with retaliation or discrimination. Under federal law, employers may not use discrimination when terminating a team member based on disability, age, national origin, sex, religion, color, or race (Ford et al 53). Many municipalities and states also prohibit team member termination based on sexual orientation. The employer may also not fire a team member as an act of retaliation if they make a complaint regarding harassment or discrimination.

            A different exception is related to an implied contract. At times, the conduct or words of an employer could create the implication of an agreement limiting the ability of that employer to terminate the employment terms of a team member at will (David 54). For instance, when the employer’s handbook on employees states that, the team member is liable for termination for a cause that is just; most courts hold that this is tantamount to an agreement that tends to permit the employer to terminate their workers only for cause.  

About the law

            Legal guidelines that relate to employment status at will are still under development or unclear in most states. Evolving legislative actions and court decisions regarding this issue is reflective of a continuing debate on how to offer protection to at-will employees who are wrongfully discharged while also giving the employer the freedom to carry out personnel decisions (Ford et al 71). The rising number of suits against wrongful dismissal has alarmed employers. This has led to employers appending at-will clauses in employment contracts. The decline of team member unions has seen many employers attain the freedom to insert this clause. In most cases, however, the employer is more concerned with avoiding costly legal action rather than inciting public boycotts and union action.

            While the employers claim that they are asserting their rights granted by the initial at-will, team member advocates believe that they are attempting to cheat the employees out of gains made over several decades’ worth of wrongful-dismissal lawsuits. It is proposed that legislation could offer protection for at-will employees from being discharged unjustly while providing arbitrators for the handling of disputes (Ford et al 72). This legislation would protect employees and not just those who fall under exceptions and can afford to pursue lawsuits that could take years to reach a decision.