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Employment at Will: Do Exceptions Overwhelm the Rule? Gary E Boston College Law Review Volume 23 Article 1 Issue 2 Number 2 3-1-1982 Employment at Will: Do Exceptions Overwhelm the Rule? Gary E. Murg Clifford Scharman Follow this and additional works at: http://lawdigitalcommons.bc.edu/bclr Part of the Contracts Commons, and the Labor and Employment Law Commons Recommended Citation Gary E. Murg & Clifford Scharman, Employment at Will: Do Exceptions Overwhelm the Rule?, 23 B.C.L. Rev. 329 (1982), http://lawdigitalcommons.bc.edu/bclr/vol23/iss2/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. BOSTON COLLEGE LAW REVIEW VOLUME XXIII MARCH 1982 NUMBER 2 EMPLOYMENT AT WILL: DO THE EXCEPTIONS OVERWHELM THE RULE? t GARY E. MURG * CLIFFORD SCHARMAN ** An employee's ability to retain his job traditionally has been subject to the employment-at-will rule. Under this rule, an employer could discharge his employee for no cause, good cause, or even bad cause.' This long-standing rule was recognized uniformly throughout the nation, and until recently was ap- plied without hesitation to give an employer the right to discharge an employee for any reason. 2 During the past two decades, however, a surge of judicial in- t Copyright © 1982 by Boston College Law School. B.A., Wayne State University, 1967; J.D., Wayne State University, 1970; L.L.M., Labor Law, Wayne State University, 1974; currently adjunct professor at Georgetown Universi- ty, Washington, D.C. and managing partner Pepper, Hamilton & Scheetz (Detroit office). ** B.A., Cornell University School of Industrial Labor Relations, 1977; J.D., Universi- ty of Michigan, 1980; currently associate, Pepper, Hamilton & Scheetz (Detroit office). The case most frequently cited in support of this rule is Payne v. Western & Ad. R.R. Co., 82 Tenn. 507, 518-19 (1884), overruled on other grounds, Hutton v. Watters, 132 Tenn. 527, 514, 179 S.W. 134, 138 (1915): [M]en must be left, without interference to buy and sell where they please, and to dischatte or retain employees at will for good cause or for no cause, or even for bad cause without thereby being guilty of an unlawful act per se. It is a right which an employee may exercise in the same way, to the same extent, for the same cause or want of cause as the employer. Id., 82 Tenn. at 518 - 19. See also Union Labor Hosp. Ass'n v. Vance Redwood Lumber Co., 158 Cal. 551, 554, 112 P. 886, 888 (1910); McLaughlin v. Ford Motor Co., 269 F.2d 120, 125 (6th Cir. 1959); Laiken v. American Bank & Trust Co., 34 A.D.2d 514, 308 N.Y.S. 111, 112 (1960). 2 See, e.g., Bender Ship Repair, Inc. v. Stevens, 379 So.2d 594, 595 (Ala. 1980); Miller v. Missouri Pac. Transp. Co., 225 Ark. 475, 481, 283 S.W.2d 158, 161 (1955); Union Labor Hosp. Ass'n v. Vance Redwood Lumber Co., 158 Cal. 551, 555, 112 P. 886, 888 (1910); Lampe v. Presbyterian Medical Center, 41 Colo. App. 465, 590 P.2d 513, 514 (1978); Somers v. Cooley Chevrolet Co., 146 Conn. 627, 629, 153 A.2d 426, 428 (1959); Motion Picture Machine Projec- tionists Protective Union, Local No. 473 v. Rialto Theatre Co., 25 Del. Ch. 347, 360, 17 A.2d 836, 840 (1941); Taylor v. Greenway Restaurant, Inc., 173 A.2d 211 (Mun. App. D.C. 1961); Wynne v. Ludman Corp., 79 So.2d 690, 691 (Fla. 1955); West v. First Nat'l Bank of Atlanta, 145 Ga. App. 808, 245 S.E.2d 46, 47 (1978); Jackson v. Minidoka Irrigation Dist., 98 Idaho 333, 334, 563 P.2d 54, 58 (1979); Atwood v. Curtiss Candy Co., 22 III. App.2d 369, 371, 161 N.E.2d 355, 357 (1959); Davis v. Davis, 197 Ind. 386, 391, 151 N.E. 134, 135 (1926); Hanson v. Central Show Printing Co., 256 Iowa 1221, 1226, 130 N.W,2d 654, 657 (1964); Lorson v. 329 330 BOSTON COLLEGE LAW REVIEW [Vol. 23:329 tervention has threatened the continued legal validity of the employment-at- will rule and the traditional relationship between an employer and an employee. The central theme of this revolution in the employment relationship is an emerging protection of the employee's job security. Courts have begun to provide such protection by carving out exceptions to the traditional rule in tort and contract law. To protect against discharges for "bad cause," some courts have created a public policy exception to the employment-at-will rule. These courts have recognized a tort of wrongful discharge, under which employees can sue when their discharge violates public policy. Other courts, under the rubric of contract law, have granted even Falcon Coach, Inc., 214 Kan. 670, 679, 522 P.2d 449, 457 (1974); Gambrel v. United Mine Workers of America, 249 S.W.2d 158, 159-60 (Ky. 1952); Pechon v. National Corp. Service, Inc., 234 La. 397, 406, 100 So.2d 213, 216 (1958); Chesapeake & Potomac Tel. Co. v. Murray, 198 Md. 526, 535-36,,84 A.2d 870, 874 (1951); Askinas v. Westinghouse Elec. Corp., 330 Mass. 103, 106, 111 N.E.2d 740, 741 (1953); McClain v. Township of Royal Oak, 276 Mich. 185, 187, 267 N.W. 613 (1936); Lundeen v. Cozy Cab Mfg. Co., 288 Minn. 98, 100, 179 N.W.2d 73, 75 (1970); Carr v. Montgomery Ward & Co., 363 S.W.2d 571, 574 (Mo. 1963); Jorgensen v. Penn- sylvania R.R. Co., 25 N.J. 541, 554, 138 A.2d 24, 32 (1958); Parker v. Borock, 5 N.Y.2d 156, 159, 182 N.Y.S.2d 577, 579, 156 N.E.2d 297, 298 (1959); Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1971); Wood v. Buchanan, 72 N.D. 216, 221, 5 N.W.2d 680, 682 (1942); Coey v. Burwell Nurseries, 2 Ohio App.2d 102, 105, 206 N.E.2d 577, 580 (1965); Sooner Broad- casting Co. v. Grotkop, 280 P.2d 457, 461 (Okla. 1955); Densen v. Edmunds, 272 Or. 345, 349, 537 P.2d 77, 79 (1975); Fawcett v. Monongahela Ry. Co., 391 Pa. 134, 139, 137 A.2d 768, 771 (1958); School Comm. of Providence v. Board of Regents for Educ., 112 R.I. 288, 291, 308 A.2d 788, 790 (1973); Orsini v. Trojan Steel Co., 219 S.C. 272, 276, 64 S.E.2d 878 (1951); Combs v. Standard Oil Co. of Louisiana, 166 Tenn. 88, 90, 59 S.W.2d 525, 526 (1933); NHA, Inc. v. Jones, 500 S.W.2d 940, 943 (Tex. Civ. App. 1973); Crane Co. v. Dahle, 576 P.2d 870, 872 (Utah 1978); Plaskitt v. Black Diamond Trailer Co., 209 Va. 460, 465, 164 S.E.2d 645, 649 (1968); Webster v. Schauble, 65 Wash. 2d 849, 852, 400 P.2d 292, 294 (1965); Wright v. Stand- ard Ultramarine & Color Co,, 141 W. Va. 368, 381, 90 S.E.2d 459, 467 (1955); Kovachik v. American Auto. Ass'n, 5 Wis. 2d 188, 190, 92 N.W.2d 254, 255 (1958); Lukens v. Goit, 430 P.2d 607, 611 (Wyo. 1967). The employment-at-will rule also has been recognized in major treatises, see S. WILLISTON, 9 WILLISTON ON CONTRACTS, § 1017 (3d ed. 1967); A. CORBIN, CORBIN ON CON- TRACTS, 684 (1960 & Supp. 1971); RESTATEMENT QF CONTRACTS, 5 246 (1932), and has been discussed and criticized frequently in law review commentary. See Madison, The Employee's Emerging Right to Sue For Arbitrary or Unfair Discharge, 6 EMP. REI.. L.J. 422 (1980); Note, Protecting At Will Employees Against Wrongful Discharge: The Duty to Terminate Only In Good Faith, 93 HARV. L. REV. 1816, 1818.19 (1980) [hereinafter cited as Note, At Will Employees]; Note, Non-Statutory Causes of Action for an Employer's Termination of an "At Will" Employment Relationship: A Possible Solu- tion to the Economic Imbalance in the Employer-Employee Relationship, ?4 N.Y. L. SCH. L. REV. 743, 744-45 (1979); Peck, Unjust Discharges from Employment: A Necessary Change in the Law, 40 OHIO ST. L.J. 1, 4-5 (1979); Comment, Protecting the Private Sector At Will Employee Who "Blows the Whistle": A Cause of Action Based Upon Determinants of Public Policy, 1977 WISC. L. REV. 777, 780-84 (1977) [hereinafter cited as Comment, Whistle Blowing]; Note, A Remedy for Malicious Discharge of the At- Will Employee: Mange u. Beebe Rubber Co. , 7 CONN. L. REV. 758, 761 (1975); Note, A Common Law Action for the Abusively Discharged Employee, 26 HAST. L.J. 1435, 1438-43 (1975) [hereinafter cited as Note, Abusive Discharge]; Comment, Employment At Will and the Law of Contracts, 23 BUFF. L. REV. 211, 212-16 (1973); Blumrosen, Workers' Rights Against Employers and Unions: Justice Francis - A Judge for Our Season, 24 RUTGERS L. REV. 480, 481 (1970); Weyand, Present Status of In- dividual Employee Rights, N.Y.U. 22ND ANNUAL CONFERENCE ON LABOR 171 (1970); Blades, Employment at Will v. Indibidual Freedom: On Limiting the Abusive Exercise of Employer Power, 67 COL- UM. L. REV. 1404, 1405-06 (1967) [hereinafter cited as Blades]; Note, Implied Contract Rights to Job Sercurity, 26 STAN. L. •REV. 335, 340-45 (1974) [hereinafter cited as Note, Implied Contract Rights]. March 1982] EMPLOYMENT AT WILL 331 greater job security to employees by moving in the direction of a "good cause" requirement for employee discharges.
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