Moss on the Employment-at-Will Doctrine

My colleague Scott Moss (a frequent commenter on this blog) has posted his latest article to SSRN on the employment-at-will doctrine called “Where There’s At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will.” This article explains how state laws claim to be employment-at-will but then have a variety of exceptions that undercut this simple description. In particular, the article shows the variety and inconsistencies of these various exceptions.

The abstract:

“Employment at-will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as “essential to free enterprise” and “central to the free market,” but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at-will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: one state accepts exception X to protect employees while rejecting exception Y to maintain employment at-will; yet on the same rationales, the other accepts exception Y while rejecting X.

This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrine evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence: discomfort adhering to the rigid rule; discomfort rejecting it; and inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court’s recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at-will is not just quirky decision-making, but a common phenomenon in a doctrine’s evolution: when courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine; and if courts handle the decline badly, the outcome can be doctrinal chaos.

This Article suggests how courts can retain employment at-will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the “public interest,” plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article’s analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights.”