At will employment: Do we live in an At-Will Employment world? The erosion of a doctrine

Daniel Santacruz
Business Law and Ethics
Executive MBA
Xavier University The at-will employment doctrine first materialized in the United States by means of an 1871 treatise authored by Horace Gray Wood. Although early American courts adopted the English common law approach that all hirings were presumed to last for one year, Wood, without basis, argued that American courts should instead follow an at-will presumption. In fact, Wood cited four cases as authority for his position, but none supported his theory. Even though Wood offered no critical analysis for the at-will employment doctrine, by the late eighteen hundreds and early nineteen hundreds, most courts embraced Wood's formulation of the at-will presumption. 1
This doctrine provides that the employment relationship, absent a contract to the contrary, is "at-will" meaning that either the employer or the employee can terminate the relationship at any time for any reason, even for no reason, without legal liability attaching.2 In other words, under at will employment there is no contract that both parts – employer and employee need to honored3. This is quite important since gives the freedom to both employer and employee to terminate the relationship at any given point for whatever reason or no reason at all.
The doctrine is clear about the relationship between employer and employee and both parts can part ways at any time and that’s holds true from the employee side, we, as employees of a organization can leave at any time and seek other opportunities if that is our wish, however that is not so true from the employer perspective. Often time that an employer wants to terminate an at will relationship with one of its employees, the first thing that the Human Resources teams advice is to create a paper trail “documentation” to avoid “problems” when terminating employees.
“Despite the traditional rule of at-will employment, more and more jurisdictions are beginning to erode this doctrine by carving out exceptions that restrict an employer's ability to freely terminate an employee without fear of liability”.4
What has been happening for the past decades is that many employees seek protection under either Title VII – that creates protection for 5 classes: sex, color, race, religion and national origin –, or any other any other public policy that protects certain minorities1 and therefore will justify the termination of employment as unlawful. also contributes to set boundaries to the at-will employment definition.
Title VII and the above mentioned Acts were designed to protect individuals against discrimination, however due to several rulings over the past 4 decades a Pandora box was open and nowadays what was to mean a free market agreement - at will employment - has mutated to something completely different due to the boundaries created over the last 40 years.
According to the business law article “Employment at will: the impending death of a doctrine” by Deborah Ballam, the genesis of this change began by mid –twentieth century driven by society’s changes in perception of individual rights as well as employee rights. In 1959, a California Court of Appeals ruled in favor of a labor union employee (Petermann) who was terminated from his job due to his refusal to commit perjury in an union corruption investigation. In her article, she stated that “The court agreed with the plaintiff and recognized his cause of action, holding that the right of discharge an employee under an at-will contract may be limited by statute or by considerations of public policy” (Ballam, 2000, p 3).
This ruling and some subsequent cases were the genesis of the wrongful discharge tort, however this tort did not get fully implemented in other states until after the 1967 law article by Professor Lawrence E. Blades which basically