Revisiting the At-Will Employment Doctrine: Imposed Terms, Implied Terms, and the Normative World of the Workplace

Abstract

We are accustomed to think of an at-will employment contract as one that can be terminated at any time by either party for any reason. That is, an at-will contract lasts only from moment to moment, at every moment completed and at every moment renewed. Hence it is a contract that has no temporality or fixed terms. Despite the ephemeral quality of the contract, the federal and state legislature have imposed mandatory terms on the employment relationship such as minimum wage and mandatory safety standards. More recently, courts have upheld employers' attempt to impose other terms onto employment contracts that last beyond the momentary duration of the at-will contract. In particular, courts have found that mandatory arbitration clauses and post-employment restrictive covenants extend beyond the life of the instantaneous at-will contract and bind employees over time. These later developments pose a theoretical problem for the at-will contract. If the contract is truly at-will, how can some terms bind the parties beyond the moment? And if some terms can be binding over time, which ones and why not others? In this paper, I describe developments that have altered and modified the at-will doctrine in the United States. I argue that the courts are evolving a hybrid type of employment contract, in which the contract is moment to moment for purposes of dismissal but on-going for purpose of certain employer-imposed terms. I then argue that this new type of employment contract is neither strictly at-will nor a general form of dismissal protection. Because the changing nature of the contract is not recognized or fully theorized, I argue that it needs a new articulation. I propose that we recognize the current instability in the doctrine and treat it as an opportunity to consider what types of terms we believe should be imposed on the contract of employment. To do so will enable us to design our employment law doctrines around the contingencies, vulnerabilities, and possibilities of work in the modern era.