Representing a client who seeks relief for an employment discharge is a lot like playing bingo: you hope the client calls out facts that permit you to maneuver the case into the right squares of forbidden employer motive or conduct in order to win a prize. The traditional doctrine of at-will employment,' which gives an employer the right to fire an employee at any time for any reason or for no reason, has now been qualified in so many ways that only bad luck prevents an unjustly discharged employee from fitting his termination into squares that could provide relief. It is the employer's poor luck if the employee's allegations fall into a category that allows tort damages, including emotional distress and punitive damages, rather than one that permits only make-whole, equitable relief. This pattern of haphazardly drawn squares of actionable discharges and available damages resembles those occasions in the common law when courts have produced a variety of exceptions, limitations, and factual manipulations to avoid a disfavored doctrine. Such maneuverings have invariably presaged the complete replacement of that doctrine with a simpler and fairer standard better suited to modern conditions. We now stand at that moment when the at-will rule should be discarded and major reform implemented. The inroads on the at-will employment doctrine have been amply developed in numerous articles and books. This article retraces those inroads only to synthesize them to the extent needed to substantiate its basic themes and identify recent developments. Accordingly, Part I explores the variety of strategies courts and legislatures have used to qualify the at-will doctrine. References are made to statutory and constitutional restrictions on employer discretion, common law tort actions for dismissals in violation of public policy, and various contract-based tactics in which courts have found some sort of just cause protection for employees. Part II then argues that those strategies establish a basis for rejecting the at-will doctrine and creating a new standard that achieves fair treatment for employees, and meets employees' crucial interests in job security, yet accounts for legitimate employer concerns. Finally, Part III proposes what that new standard should look like.
Robert M. Bastress,
A Synthesis and a Proposal for Reform of the Employment At-Will Doctrine,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol90/iss2/2