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/
-is_4_39/ai_53474566/pg_k-31k
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