The History of Employment At Will

William Allan Kritsonis, PhD

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

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

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.

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.

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.

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.

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.

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.

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

. The CCPA prohibits discharge of employees

because of garnishment of wages for any one

indebtedness.

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.

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.

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.

States that do not recognize the public policy exception

. • Alabama,

• District of Columbia

• Florida

• Georgia

• Louisiana

• Maine

• Nebraska

• New York

• Rhode Island

states that do not recognize

the implied contract exception

• Delaware

• Florida

• Georgia

• Indiana

• Louisiana

• Massachusetts

• Missouri

• Montana

• North Carolina

• Pennsylvania

• Rhode Island,

• Texas

• Virginia

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

exception • Alabama

• Alaska

• Arizona

• California

• Delaware

• Idaho

• Massachusetts

• Montana

• Nevada

• Utah

• Wyoming

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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