William Kritsonis, School Law, Ch 4 At Will Employment

1
The History of Employment At Will

• William Allan Kritsonis, PhD

2
Origin of Employment at Will

• byproduct of the industrial revolution in
  England and the United States
• written By Horace G. Wood as an authoritative
  treatise on the law of master and servant in 1877
• Enabled Both employee and employee free to end
  employment relationship at any time for any
  reason
• erosion of the employment at will rule began with
  exceptions being created for certain classes of
  employees

3
Exceptions to employment at will

• employees represented by trade unions
• civil servants
• members of classes historically subjected to
  discrimination
• Public policy
• Implied contract
• Implied covenant of good faith and fair dealing
• statutory exceptions

4
National Labor Relations Act (NLRA), 29
USC 158(a)(1)(3)(4).

• The NLRA prohibits the discharge of employees
  for union activity, protected concerted activity,
  filing charges or giving testimony under the Act.
  The NLRA was passed in 1935 and established a
  federal policy to promote collective bargaining
  and to define employee rights in detail. In
  addition to prohibiting discharge of employees
  for unionizing activities, the NLRA also gave
  rise to labor unions which negotiated collective
  bargaining agreements restricting arbitrary
  termination of unionized employees.

5
Fair Labor Standards Act (FLSA), 29 USC
215(a)(3), 216(b).

• The FLSA prohibits discharge of employees for
  exercising rights guaranteed by the minimum wage
  and overtime provisions of the Act. In general,
  the FLSA requires employers to pay time and one
  half to employees who work more than 40 hours per
  week. Certain employees are exempted from the
  provisions of the FLSA based upon their
  executive, administrative or professional status.

6
Title VII, Civil Rights Act of 1964, 42
USC 2000(e)-23(a).

• Title VII prohibits discharge of employees
• based on race, color, religion, sex or national
  origin. The Act also prohibits an employer from
  retaliating against an employee for exercising
  Title VII rights. In 1991, the Civil Rights Act
  was amended to broaden the coverage of the Act
  for jury trials and to provide for
  compensatory/punitive damages under certain
  circumstances.

7
Age Discrimination Employment Act (ADEA),
29 USC 623, 631, 633(a).

• The ADEA prohibits age based discharges of
  employees by private employers and the federal
  government and protects employees against
  retaliation for exercising statutory rights.

8
Americans With Disabilities Act (ADA),
42 USC 1201 et seq.

• The ADEA prohibits age based discharges of
  employees by private employers and the federal
  government and protects employees against
  retaliation for exercising statutory rights.

9
Employee Retirement Income Security
Act of 1974 (ERISA), 29 USC 1140, 1141.

• ERISA prohibits the discharge of employees in
  order to prevent vesting of pension rights and
  governs how pension plans are to be administered
  by private employers.

10
Consumer Credit Protection Act
(CCPA), 115 USC 1674(a)..

• The CCPA prohibits discharge of employees
  because of garnishment of wages for any one
  indebtedness.

11
Larsen Civil Rights Act (ELCRA),
MCLA 37.2101..

• The ELCRA prohibits discharge based on race,
  color, religion, national origin, age, height,
  weight, marital status, or sex. The ELCRA
  provisions mirror, in many respects, the
  provisions of Title VII. The scope of coverage
  for Michigan employers is somewhat larger under
  the ELCRA.

12
Michigan Handicappers' Civil
Rights Act (MHCRA), MCLA 37.1101..

• The Handicappers' Act prohibits discharge based
  on a handicap which is unrelated to the
  individual's ability to perform the particular
  job or position. The statute mirrors in many
  respects, the Americans With Disabilities Act. A
  review of the differences between the two
  statutes is beyond the scope of this manual.

13
Michigan Whistleblowers' Protection
Act (MWPA), MCLA 15.362..

• The Whistleblowers' Protection Act prohibits
  retaliatory discharge of employees for reporting
  a violation or suspected violation of law,
  regulation, or rule of state or political
  subdivision, unless the employee knows the report
  is false. The Act also prohibits the discharge of
  an employee requested to participate by a public
  body in an investigation, hearing, inquiry, or
  court action. The Act imposes strict time limits
  on employees who wish to pursue the Whistleblower
  claims.

14
States that do not recognize the
public policy exception.

• Alabama,
• District of Columbia
• Florida
• Georgia
• Louisiana
• Maine
• Nebraska
• New York
• Rhode Island

15
states that do not recognize the
implied contract exception

• Delaware
• Florida
• Georgia
• Indiana
• Louisiana
• Massachusetts
• Missouri
• Montana
• North Carolina
• Pennsylvania
• Rhode Island,
• Texas
• Virginia

16
states that do not recognize the
covenant of good faith fair dealings
exception

• Alabama
• Alaska
• Arizona
• California
• Delaware
• Idaho
• Massachusetts
• Montana
• Nevada
• Utah
• Wyoming

17
References

• Glazier, B. (2006). The law of wrongful
  discharge. Retrieved April 10, 2008, from
  http//www. Bosglazier.com/wdis.shtml
• Muhl, C. (2001). The employment-at-will doctrine
  Three major exceptions. Retrieved April 10,
  2008, from http //bls.gov/opub/mlr/220/01/
  art1full.pdf
• Wood, H. G. (1877). A treatise on the law of
  master and servant. Retrived April 10, 2008,
  from http//findarticles.com/p/articles/mi_mo_
  348/
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