At-Will Employment: Origins, Applications, Exceptions and Expansions in the Public Service

Abstract

The author describes the development of the employment at will doctrine in American law and the creation of statutory and judicial exceptions to ameliorate its effects. Legal scholarship criticizing and defending the doctrine is reviewed, as are reform initiatives. Against this backdrop, the author considers the expansion of at-will employment to the civil service workforce. The author concludes that constitutional objections to the expansion will not succeed in halting it, and predicts that this expansion will have a detrimental effect on the transparency of governmental operations and management.

Keywords:

• at-will employment
• employment at will
• civil service reform

The author would like to thank Paolo Annino, Jim Bowman, and Charlene Luke for their helpful editorial comments, and Ana Eliza Friere and Mary McCormick for their invaluable research assistance.

Notes

1. Ruberg, Charles, April 23, 1984; personal communication.

2. William Blackstone, 1 Commentaries 4130.

3. Wood, Horace G., Master and Servant § 134 (1877).

5. Martin v. New York Life Ins. Co., 42 N.E. 416, 417 (N.Y. 1895).

6. Payne v. Western & All. R.R., 81 Tenn. 507, 518 (1884).

12. National Labor Relations Act, 29 U.S.C. §§ 141–169 (2000).

13. Fair Labor Standards Act of 1938, 29 U.S.C. § 215(a)(3)(2000).

14. Clean Air Act of 1963, 42 U.S.C. § 7622(a)(3)(2000).

15. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2(a)(2000).

16. Age Discrimination in Employment Act of 1967, 92 U.S.C. § 623(d) (2000).

17. Pregnancy Discrimination Act, 42 U.S.C. § 2000e (k)(2000).

18. Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213(2000).

19. Immigration Reform and Control Act, 8 U.S.C. (2000).

20. 9A Labor Relations Reporter (BNA) 505:51 (2004).

23. Wooley v. Hoffman-La Roche, Inc., 491 A.2d 1257, 1264 (N.J., 1985).

26. Monge v. Beebe Rubber Co., 316 A.2d 549, 551 (1974).

27. Cleary v. American Airlines, Inc., 111 Cal. App. 3d 443, 454 (Cal. Ct. App. 1980).

28. Foley v. Interactive Data Corp., 765 P.2d 373 (Cal. 1988).

29. Fortune v. Nat'l Cash Register Co., 364 N.E.2d 1251 (Mass. 1977).

62. France abolished the requirement that public authorities give prior authorization for economic dismissals; Belgium, Germany, Sweden, Spain and Italy granted employers greater flexibility to use fixed-term contracts; Germany, Portugal and Spain relaxed or removed restrictions on the use of temporary work agencies; Belgium reduced the notice employers must give discharged employees; Germany and the United Kingdom removed some categories of workers from protection from unfair dismissal; and Belgium and the United Kingdom reduced legal support for workers' representatives. Hepple, B. European rules on dismissal law? Comparative Labor Law and Policy Journal199718, 204–228.

65. 29 P. R. Laws Ann. Tit. 29, §§ 185a (2003).

66. V. I. Code Ann. Tit. 24, §§ 76–79 (2003).

67. Model Employment Termination Act, 7A U.L.A. 428.

71. Several studies show that employees prevail more often in arbitration than in court. The American Arbitration Association found a winning rate of 64% for arbitral claimants; by contrast, claimants' success rates in separate surveys of federal courts (14.9%) and EEOC cases (16.8%) were much lower (although these figures omit pretrial settlements). St. Antoine, Theodore J. Labor and employment law in two transitional decades. Brandeis Law Journal20045(Spring), 495–527.

77. Croslin v. Bush (Case No. 02-20189-CIV-HUCK)(S.D. Fla., Sep. 3, 2002); Weglarz v. Metropolitan Dade County, (Case No. 97-1876-CIV-DAVIS)(S. D. Fla., Dec. 12, 1997); Wilson v. Metropolitan Dade County, (Case No. 93-0076-CIV-MORENO)(S.D. Fla., Nov. 22, 1993).

83. Career Service Report Month Ending June 30, 1999; Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 1999; Career Service Report Month Ending June 30, 2000, Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 2000; Career Service Report Month Ending June 30, 2001, Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 2001; Career Service Report Month Ending June 30, 2002, Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 2002; Career Service Report Month Ending June 30, 2003, Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 2003; Career Service Report Month Ending June 30, 2004, Florida Department of Management Services, Public Employees Relations Commission: Tallahassee, Florida, 2004.