Jeffrey P. Gale, P.A. // “At-Will” is (Mostly) the Law of the Land

At-will employment allows employers to adjust the terms of employment with employees at any time, with or without notice, for any reason, and without legal consequence. Montana is the only state that is not an at-will employment state.

At-will employment not only subjects employees to arbitrary terminations and reductions in hours, it discourages employees from making legitimate internal complaints about company operations.

Some cities and states have carved out exceptions to the at-will law. However, the exceptions are mostly limited in scope to government employees. New York City enacted a law to protect employees of large fast-food restaurant chains in the city.

Collective bargaining agreements forged by unions also include exceptions. They can cover goverment and private business employees.

The exceptions typically apply a “just cause” or “good cause” standard. Just cause under New York City’s law, the Wrongful Discharge of Fast Food Employees law, is defined as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to to the fast food employer’s legitimate business interests.”

Where “just cause” or “good cause” are the standards, the burden is on the employer to establish compliance.

Other exceptions have emerged. They are:

Public policy exception. In Tameny v. Atlantic Richfield Co., 610 P.2d 1330 (Cal. 1980), the Supreme Court of California allowed an employee to proceed with a lawsuit against his employer in an at-will state based on the claim he was discharged for refusing to participate in an illegal scheme. The Court explained:

Over the past several decades, however, judicial authorities in California and throughout the United States have established the rule that under both common law and the statute an employer does not enjoy an absolute or totally unfettered right to discharge even an at-will employee. In a series of cases arising out of a variety of factual settings in which a discharge clearly violated an express statutory objective or undermined a firmly established principle of public policy, courts have recognized that an employer’s traditional broad authority to discharge an at-will employee “may be limited by statute … or by considerations of public policy.” (Petermann v. International Brotherhood of Teamsters (1959) 174 Cal. App.2d 184, 188 [344 P.2d 25] (discharge for refusal to commit perjury); see, e.g., Glenn v. Clearman’s Golden Cock Inn, Inc. (1961) 192 Cal. App.2d 793, 796-797 [13 Cal. Rptr. 769] (discharge because of union membership and activity); Wetherton v. Growers Farm Labor Assn. (1969) 275 Cal. App.2d 168, 174-175 [79 Cal. Rptr. 543] (same); Montalvo v. Zamora (1970) 7 Cal. App.3d 69 [86 Cal. Rptr. 401] (discharge for designation of nonunion bargaining representative); Nees v. Hocks (1975) 272 Ore. 210 [536 P.2d 512] (discharge for serving on jury); Frampton v. Central Indiana Gas Company (1973) 260 Ind. 249 [297 N.E.2d 425] (discharge for filing worker’s compensation claim); Harless v. First Nat. Bank in Fairmont (1978) ___ W. Va. ___ [246 S.E.2d 270] (discharge for reporting violations of consumer protection laws).)

Good faith exception. The goal of this exception is “simply to deny to [the employer] any readily definable, financial windfall resulting from the denial to [the employee] of compensation for past services.” Gram v. Liberty Mut. Ins. Co., 391 Mass. 333, 335 (1984) (Gram II). It does not appear to protect employees against demotion or termination.

Implied contract exception. In Continental Air Lines, Inc. v. Kennan, 731 P.2d 708, the Supreme Court of Colorado accepted certiorari review “to determine whether an employee may sue an employer for breach of contract on the theory that an employee manual, unilaterally published by the employer, may serve as a basis for altering the terms of an employment otherwise terminable at will.” It issued the following guidelines:

An employee originally hired under a contract terminable at will may be able to enforce the termination procedures in an employee manual under one of the following alternative theories. The employee may be entitled to relief under ordinary contract principles if he can demonstrate, first, that in promulgating the termination procedures the employer was making an offer to the employee—that is, the employer manifested his willingness to enter into a bargain in such a way as to justify the employee in understanding that his assent to the bargain was invited by the employer and that the employee’s assent would conclude the bargain, Restatement (Second) of Contracts § 24 (1981)—and second, that his initial or continued employment constituted acceptance of and consideration for those procedures. See, e.g., Dahl, 227 Md. 471, 712*712 356 A.2d 221; Pine River State Bank, 333 N.W.2d 622; Southwest Gas Corp., 99 Nev. 594, 668 P.2d 261; Langdon, 569 P.2d 524; Hercules Powder Co., 189 Va. 531, 53 S.E.2d 804.

Alternatively, even if the requisites for formation of a contract are not found, the employee would be entitled to enforce the termination procedures under a theory of promissory estoppel if he can demonstrate that the employer should reasonably have expected the employee to consider the employee manual as a commitment from the employer to follow the termination procedures, that the employee reasonably relied on the termination procedures to his detriment, and that injustice can be avoided only by enforcement of the termination procedures. See, e.g., Cleary, 111 Cal.App.3d 443, 168 Cal.Rptr. 722; Toussaint, 408 Mich. 579, 292 N.W.2d 880; Arie, 648 S.W.2d 142; Thompson, 102 Wash.2d 219, 685 P.2d 1081; see also Kiely v. St. Germain, 670 P.2d 764 (Colo.1983); Vigoda v. Denver Urban Renewal Authority, 646 P.2d 900 (Colo.1982); Restatement (Second) of Contracts §§ 2 and 90 (1981). Unless this preliminary factual showing is sufficient to overcome the presumption of an employment terminable at the will of either party, the employee’s cause of action should fail.

Other constraints on Florida’s at-will employment law include:

• Title VII of the Civil Rights Act of 1964. Prohibits employment discrimination based on race, color, religion, sex and national origin.
• Florida Statute 440.205. “Coercion of employees.—No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.”

Our office receives many inquiries from terminated or demoted employees about their rights. Unfortunately, most of them are not afforded any of the above-discussed protections against Florida’s at-will law.