At Will Employment Laws


The employer-employee relationship is guided today by the concept of freedom, enshrined in the spirit of the country’s laws. The freedom of the employee to work for whoever he wants, at the time and place he chooses is the cog upon which the doctrine of employment at will is founded.

The employment-at-will doctrine refers to the situation in which both the employer and the employee have the freedom to terminate the employment relationship at any time with or without notice. Indeed, over the period of years the employer-employee relationship has undergone considerable changes to an extent that almost every employment relationship is considered to be employment-at-will except where it is shown otherwise. The doctrine therefore underlines the flexibility of the parties to terminate the employment relationship either for a bad cause, good cause or even no cause at all. The most common employment situations where the relationships are characterized as those at will relate to the cases in which there is no form of agreement and to those that are not governed by any statutory or public policy exceptions. These are the employment relationships that do not have any written employment contract. The employment-at- will doctrine is a common law doctrine the efficacy of which has caused numerous debates among scholars and courts alike. However, the common ground is that the doctrine provides both the employer and the employee with the equal rights in deciding their own fates and as such it does not violate any inherent rights in the employment relationship.


The common belief with almost each and every employee is that, if they work hard enough and deliver the duties assigned to them, they may get various benefits, including job security. Indeed the essence of employment for any worker is the guarantee that delivery and performance of the duties assigned to him will provide a job for a given period of time thereby giving him a source of livelihood. However, with the continuous development of the civil rights movements and evolution of other rights under the international legal framework, the employment relationship has experienced a considerable evolution in terms of these rights’ protection. The claim for freedom and liberty of the person in employment has meant that the choice of the employer, time, place and duration of work are the factors that the government cannot interfere in. The liberty of decision making concerning one’s own employment status is therefore the very cause of the doctrine of employment at-will.

History and Analysis of the Legal Issues

The historical development of this concept can be traced back to a few centuries in the development of contract and employment laws. The first express statement on the at-will employment laws is found in the 1877 treatise by H.B Wood on master-servant law. In this treatise, Wood concluded that a general hiring or a hiring process, which is indefinite, is to be construed prima facie as a hiring at will, and as such, is the one in which the servants want to establish their existence for a definite period, for example a year. The burden of proof lies on him to establish the existence of such a period. It was this position of Wood, borrowed from the master-servant relations under English law, that gave credence to the growth and development of the at-will employment rule in the US. This presumption was developed into a substantive rule of law by state courts, holding that in the absence of a written agreement that amounts to a contract, an employer had the right to discharge the employee for any reason even if that reason was morally wrong.

However, there is not much evidence in legal history that supports the at-will employment rule as the practice of many courts in the nineteenth and early twentieth centuries taking the position and presumption that unless a contrary intent was found, any employment relationship was to be for a defined period of time, usually a year. It was characterized by the period for the wage payment. Consequently, if there was no contract or any other substantive position, the period of hiring was usually a year or the time within which wages were paid to the employee. It is also argued that Wood may have misstated the English law in as far as the master-servant relationship was concerned. To have assumed that the master-servant relationship under English law was an employment at will relationship was completely wrong; as the legal position was that the master-servant relationship made the parties to sign a continuous contract. This is reflected in the writings and commentaries of Blackstone who viewed a hiring process in general as the one lacking in any particular time limit. It was stated in the law that hiring was to continue for a period of one year. This position was made for the benefit of the land owners in the Agricultural economy. They needed a guarantee of labor for their lands, thus a one-year contract protected the rights of both the employee and the employer. The employees had a duty to work and it was prohibited for them to leave the place of their employment before the end of the term.

Concerning the legal issues for the support of employment at-will doctrine, it should be mentioned that some of them were related to the law of contract concepts of mutuality of obligation and the equality of bargaining position between the parties to the employment relationship. The mutuality agreement is premised on the fact that an employee who has been discharged does not have any legal protection as any continuing employment lacks mutuality. However, this is an erroneous conception of the mutuality concept under the law of contract. The overriding principle under the law of contract is the principle requirement for the formation of a valid and enforceable contract. In terms of exchange of promises, mutuality,is not a requirement for the formation of a valid agreement. Consequently, satisfactory work performance of an employee was not sufficient consideration for the existence of a definite term employment relationship.

Secondly, as regards the issue of equality in the bargaining position of both parties, the common position was that the employer was always the stronger party when it came to negotiation of a contract of employment. The fact that one party was stronger in the negotiation process excluded the possibility of equal opportunities to all. An at-will employment law brought the parties on the same playing field with the same abilities accompanied by similar rights and duties. This was enshrined in the legal dogma of contractual freedom. In the US Supreme Court case of Adair v the United States, 208 U.S. 161, 174-75, the court assumed that the at-will employment brought both parties to an equal bargaining position in which the employer had the same chance to discharge the employee for any reason as the right of employee to quit the service for whatever reason. The doctrine therefore found credence in the notion of unrestricted freedom of contract constructed around the liberty of both employer and employee to terminate the work relationship either by dismissal or resignation (Clarkson, Miller, & Cross, 2010).

The Pros for Employment At-Will

There are several advantages that accrue to both the employer and employee under the employment at-will rule. Firstly, in case of the employer, he is able to exercise the right to dismiss employees who are deemed as unproductive. This gives the employer the freedom to hire new employee who can meet the demands of employment on the satisfactory level. Secondly, an employer is able to move freely in discharging employees without risking legal actions in case he needs to downsize the number of employees. The employment at-will gives the employer the freedom and flexibility he needs to manage his job, maintaining the right capacity of work and cutting down the requirements if there is need to do so. The advantages accruing to the employee include the ability of the employee to competitively bid and seek a new job. This allows the employee to select a job that suits his life conditions such as his temporary location and the need to develop his education and training. Secondly, the employee is able to leave the employment for a better paying job without running the risk of breaching any agreement.

The Cons for Employment At-Will

However, the employment at-will doctrine has a number of disadvantages concerning the relationship of employment. However, it has been argued that the employees have tended to suffer more. Firstly, employers usually spend a lot of money and time on training new recruits in order to equip them with the necessary skills to perform the work at hand. If an employee wakes up one morning and decides to work for a rival company it will cause substantial consequences for an employer. As a result, employers suffer the risk of spending a lot of money in training the new employees who end up leaving their workplace at any time they want. However, the the level of training that such employees are to be equipped with has been questioned if the majority of cases are bared in mind. Such employees do not usually have very high level of training (Bevans, 2006). Thus the risk of losing a valuable employee to a rival is not as substantial as it may first seem.

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When it comes to the employee, the number of disadvantages that an employee faces in this kind of an arrangement is the lack of job security. Employment-at-will basically connotes the right of either party to terminate the employment relationship at any point without giving notice to other party. In practice, however, this right has been more readily exercised by employers than the employees. So, many employees completely lack the benefit that comes with job security. It is commonly believed that most employees would prefer to keep their jobs rather than be out all the time searching for the new job opportunities. They usually work hard to perform and deliver on their mandates in order to attract the guarantee of a job. However, as long as one is an employee at will, job security can only be a myth.

Exceptions to the Employment at Will Doctrine

The Legal Exceptions

The common ground is that there is no rule without an exception, and this holds true for the doctrine of employment-at-will. The law therefore recognizes a number of exceptions to which the rule will not apply and thus a person will be held responsible where the conduct in issue falls within this exception (Muhl, 2001). These exceptions developed under a common law in the interest of addressing terminations that do not seem just even though they fall within the rule of employment at-will. There are three main exceptions that are commonly recognized through the US, with a majority of states applying them to their inhabitants.

Firstly, public policy exception which relates to the policies are accepted and recognized by a given state. Under this exception, the employer is prohibited from discharging an employee due to the reasons that violate fundamental principles of public policy of that state. These policies relate to the agreements between the employer and the employee in the employment relationship. However, they stem from the employment relationship as governed by the connection to society and the fundamental principles of the rule of law that governs this particular society. This simply means that the courts look at what the society deems to be right or wrong and applies this to the cases before them. The public policy exception was first developed by the California courts in case of Peterman V International Brotherhood of Teamsters 174 Cal.App 2d 184, 344 p.2d 25(1959) in which the court stated that the meaning of public policy included those acts that had a tendency to be injurious to the public or against the public good. Consequently, if an employee agrees to commit an unlawful act or refuses to perform important public obligation, it will be considered against public policy for an employer to fire such an employee. An employer is restricted from discharging an employee for conduct that is most likely going to subject such an employee to criminal prosecution or would lead to a violation of a statute. Similarly, where the employee exercises his or her statutory rights, it will be against public policy for an employer to terminate the employment of such an employee. Therefore, in case an employee refuses to take a polygraph or files worker’s claim for compensation, such employee will not be fired by the employer (“Petermann v. Int'l brotherhood of teamsters, 344 P.2d 25 (Cal. Ct. App. 1959)”, 1959).

The Implied Contract Exception

The second exception is the implied contract. According to this principle, everything that an employment at-will does is not built around a contractual relationship between the two parties. However, there are instances when a contract may be implied from the representations and undertaking of the employer during the oral negotiations between the two parties. In most cases an employer or his representative may make representations regarding job securities in the sense that, if an employee is able to perform on the proper level for a given period of work, his job will be secure. This kind of representation may result in an implied contract. Similarly, where the employer has made representations regarding the manner of disciplining the employee, for instance where there is an established procedure for discipline before an adverse action is taken, may give rise to an implied contract. In practice, the courts have tended to rely on the representations made in the employee handbook in order to imply a contract (Muhl, 2001). For example, if the handbook states that employees will only be terminated for a “just cause” it will amount to a requirement for the cause of termination to be just. The courts will therefore apply to the normal rules of contract and the other surrounding circumstances.

The third exception is the good-faith exception which represents the most significant deviation from the conventional at-will doctrine. The covenant of good faith and fair dealing has been interpreted to mean that the decisions of the employer will be subject a standard of just cause or that such termination shall not be in bad faith or motivate by malice.

Statutory Exceptions

These are mainly federal anti-discrimination laws which basically prevent discriminatory practices in employment. However, where an employee has been discharged for a cause, which is discriminatory in nature, the law will be finding the employer to have violated the federal anti-discrimination laws. Therefore it is an exception to the employment-at-will doctrine.

Ethical Concerns

The question of ethics in employment at-will relationships is one that needs to be considered as the one that gives rise to another exception. This in most cases relates to professional workers who may be obliged to perform certain duties that are contrary to their professional ethics for the fear of losing their jobs. Ethical standards create a moral tie between the professional and the question of public interest and as such, employment at-will should not break this tie.


While the doctrine of employment at-will has found its place in the law and is generally accepted, there is a need for more exceptions to this rule in order to gain control of the employment market. While it results from the claim to freedom and the laissez-fair doctrine, the need to protect the fundamental human rights that are bound to be abused is unquestioned.

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