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Employment At Will

By Jack Merrill

The employment-at-will doctrine has survived challenge after challenge in Massachusetts courtrooms. It provides that the employer/employee relationship is a bargain between parties of relatively equivalent bargaining power. Either employer or employee, then, is free to terminate the relationship at will. The only exceptions to the rule emanate from statutes (anti-discrimination laws, for example) and narrow exceptions to the at-will doctrine that prevent employers from firing employees for reasons that violate established public policies.

Employees have made numerous efforts to expand the exceptions by arguing that they were fired for reasons that controvert public policy. In most cases, their efforts fail. One attack involved a single mother who was fired for refusing to work long hours. She sued her employer and claimed that her firing violated an established public policy that favors the care and protection of children. Working until 10 p.m. nightly, she claimed, would cause her to neglect her child, who did not have a second parent at home.

Once again, however, the court declined the employee’s attempt to broaden the narrow exceptions to the at-will doctrine. In affirming a judgment for the employer, the court concluded that the at-will rule cannot be set aside based on the “special domestic circumstances” of a single employee.

Exceptions to the at-will doctrine remain extremely narrow. Under the rubric of “public policy,” the courts protect employees who are fired for asserting legal rights and doing what the law requires. Typically, the public policy exception is applied to employees who serve on juries, file workers’ compensation claims, or testify at criminal trials. Virtually anyone else can be fired at the discretion of employers, even when the boss acts in a way that others find distasteful or even dishonest.

In recent years, Massachusetts courts have declined to protect employees who refuse to take mandatory drug tests, complain internally regarding company trade practices, or participate in shareholder derivative suits. The rationale that underpins the courts’ decisions focuses on the perceived bargain between employers and employees under which parties agree that either may walk away from the relationship at any time.

It is only when the courts identify an exceptionally strong public policy reason to avoid job termination that they act to protect employees from firing. For example, employees cannot be fired for refusing to give false testimony against co-workers. Nor can they be terminated for reporting criminal activity at work, whether the report is made internally or to public authorities.

As a practical matter, legitimate grievances for wrongful termination are few and far between. Of the numerous inquiries received by attorneys, most are not candidates for litigation. Employees and employers alike are typically told that the courts will not be likely to stand in the way of an employer’s right to fire an employee.