Know Your Rights
Employment-at-Will Doctrine

By JAMES A. BROWN

There is a common misconception among some employees that there must exist a legal remedy for every "wrongful termination" of employment. For example, a long-term employee, who was never afforded proper training or given the necessary tools to succeed, is suddenly terminated. One assumes there must be some redress when that employee's termination of employment is without any apparent cause.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com.

The Doctrine

The employment-at-will doctrine teaches us a hard lesson: namely that the law does not correct all wrongs. Rather, employers are afforded the advantage of virtually unlimited power to fire their employees "at will."

Fortunately, civil servants and union members who lose their jobs have recourse and may challenge their employer's decision to terminate their employment. Still, it makes sense for you to understand the employment-at-will doctrine because of its widespread application to the many non-unionized employees working in the private sector. Understanding this doctrine may also help you to appreciate the benefits of the civil service and union membership.

As an employment lawyer, I regularly advise prospective clients about the employment-at-will doctrine. I explain that an employer, with few exceptions, may fire its employees "for any reason or no reason."

New York State has recognized the employment-at-will doctrine for over 100 years. In its simplest terms, the doctrine states that an employment relationship which is for an "indefinite term" may be freely terminated by either party at any time without cause or notice. This reference to "indefinite term" may explain why few employees are ever hired for a stated duration, i.e. for a one- or two-year term, etc.

Can't Discriminate

The employment-at-will doctrine reflects a reluctance to restrict an employer's power to terminate its employees. Yet the doctrine does have limited exceptions. Specifically, certain statutes protect employees wrongfully terminated because of employment discrimination. In other words, while an employer may fire you because it does not like the color of your shoes (i.e. "for any reason"), it may not fire you because of the color of your skin. Other statutes protect employees terminated for their whistleblowing activity which exposes governmental fraud, corruption or other wrongdoing.

New York State courts have stubbornly resisted creating any exceptions to the employment-at-will doctrine. In one notable decision, Murphy v. American Home Products Corporation, the state's highest court considered a set of facts which seemed a safe bet to erode the doctrine. In Murphy, a long-term employee was actually fired for reporting to various corporate managers the very same accounting improprieties he had a duty to report.

The state's high court, in Murphy, was not persuaded by the terminated employee's arguments. The court made clear that any changes to the employment-at-will doctrine would have to be made with new laws passed by the Legislature, which was best situated "to discern the public will."

Four years later, the Court of Appeals in Sabetay v. Sterling Drug again confirmed the doctrine's deep roots. The plaintiff in Sabetay (as in Murphy) also presented a compelling set of facts. He was fired because he refused to participate in unethical and illegal financial activities. Again, the Court would not bend, and the terminated employee was deemed an employee at will without any legal remedy.

Narrow Exception

In 1992, the Court carved out an extremely limited exception to the doctrine which applies only to lawyers who are fired for complying with their profession's ethical obligations: namely the duty to report another lawyer's ethical breach. The terminated lawyer was granted the right to challenge his loss of employment notwithstanding the employment-at-will doctrine.

For those who are not civil servants or union members (or covered by an employment contract for a stated duration), the employment-at-will doctrine deprives you of any "wrongful termination" claim. The one exception is found in statutes allowing claims for unlawful discrimination or whistleblower retaliation.

Workers have fought long and hard for the right of labor unions to exist and for a more protective civil service system. Having some job security, as a civil servant or union member, is what distinguishes you from the employee at will who may be fired for wearing the wrong color shoes.