The dramatic expansion during the 1980s of state judicial modifications to the at-will employment doctrine has resulted in bills concerning wrongful discharge being introduced in over thirty legislatures. Bills have been drafted to give employees just-cause protection against dismissal, with others being introduced on narrower issues of wrongful discharge. Legislators have requested guidance toward forging a balanced statute, which the Model Employment Termination Act (META) provides. This article considers (1) the failure of the common law and the public policy exception to protect employees from unjust termination, (2) the reasons why a statutory act is needed, (3) the role of the National Conference of Uniform Law Commissioners in drafting META, (4) the advantages of META over the existing system, and (5) some political and legislative obstacles that must be overcome for its enactment. The article concludes that META enables legislatures to act fairly and reasonably in adopting an act that will protect most American workers from discharge without good cause, without placing employers at a competitive disadvantage.
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References
1.
1. It is unlawful, however, for an employer to violate a particular contract or a specific antidiscrimination statute or other public policy exception, such as a whistle-blower statute.
2.
2. Montana Statutes § 39-2-901.
3.
3. Timmerman estimates that approximately 70 million workers are neither union members nor civil servants and are, therefore, subject to at-will employment. See Timothy N. Timmerman, “Legislative Attempts to Modify the Employment At-Will Doctrine: Will the Public Policy Exception Be the Next Step?”Journal of Corporation Law, 14:245 (1988).
4.
4. American Civil Liberties Union, Wrongful Discharge, Legislative Briefing Series, no. 6 (New York: American Civil Liberties Union, 1991), p. 1.
5.
5. See Jack Stieber and Robert Rodgers, “Discharge for Cause: History and Development in the United States,” this issue of The Annals of the American Academy of Political and Social Science.
6.
6. This next section has been provided by Lewis L. Maltby of the American Civil Liberties Union.
7.
7. Henry H. Perritt, Jr., Employee Dismissal Law and Practice, 3d ed. (New York: John Wiley, 1992), 1:452-457.
8.
8. See Stinson v. American Sterilizer Co., 570 So. 2d 618, 620-21 (Ala. 1990).
9.
9. See Theodore J. St. Antoine, “A Seed Germinates: Unjust Discharge Reform Heads toward Full Flower,”Nebraska Law Review, 67:63 (1988).
10.
10. Restatement (Second) of Contracts § 205 (1981); Arthur Linton Corbin, Corbin on Contracts (St. Paul, MN: West, 1960), vol. 3, §§ 570-71.
11.
11. Lewis L. Maltby, “The Decline of Employment At Will—A Quantitative Analysis,”Labor Law Journal, 41:52 (Jan. 1990).
12.
12. See Petermann v. Local 396, International Brotherhood of Teamsters, 174 Cal. App. 2d 184, 344 P. 2d 25 (1959); Toussaint v. Blue Cross & Blue Shield, 408 Mich. 579, 292 N.W.2d 880 (1980); Cleary v. American Airlines, 11 Cal. App. 3d 443, 455, 168 Cal. Rptr. 772, 729 (1980).
13.
13. Foley v. Interactive Data Corp., 174 Cal. App. 3d 282, 219 Cal. Rptr. 866 (1985), on appeal, 47 Cal. 3d 654, 765 P.2d 373, 254 Cal. Rptr. 211 (1988).
14.
14. Miller v. Fairchild Industries, Inc., 885 F.2d 498 (9th Cir., 1989); McMahon v. Pennsylvania Life Ins. Co., 891 F.2d 1251 (7th Cir., 1989); Caton v. Leach Corp., 896 F.2d 939 (5th Cir., 1990); Harrel v. 20th Century Ins. Co., 934 F.2d 203 (9th Cir., 1991).
15.
Walter P. Armstrong, Jr. , A Century of Service: A Centennial History of the National Conference of Commissioners on Uniform State Laws (St. Paul, MN: West, 1991).
16.
16. These arguments are spelled out in Stanley M. Fisheret al., “Report of the Study Committee on Proposed Employment Termination Act” (Manuscript, National Conference of Commissioners on Uniform State Law, 1987).
17.
17. Theodore J. St. Antoine, “The Model Employment Termination Act: A Threat to Management or a Long-Overdue Employee Right?”Proceedings of New York University 45th Annual National Conference on Labor (Boston: Little, Brown, 1992), pp. 269-288.
18.
For further discussion on costs to employers, see Lewis L. Maltby, “The Projected Economic Impact of the Model Employment Termination Act,” this issue of The Annals of the American Academy of Political and Social Science.
19.
19. Henkel v. Educational Research Council, 45 Ohio St. 2d 249 (1977). See, however, Gigax v. Repka, 83 Ohio App. 3d, 615 (1992); Crosley v. Baum, 47 Ohio St. 3d, 105 (1989), where a corporation must have a legitimate business purpose to terminate a minority shareholder's employment with a close corporation.
20.
20. James S. Coleman, The Asymmetric Society (Syracuse, NY: Syracuse University Press, 1982).
21.
21. St. Antoine, “Model Employment Termination Act.” See also idem, “The Model Employment Termination Act: A Fair Compromise,” this issue of The Annals of the American Academy of Political and Social Science.
22.
22. “Statement of Policy Establishing Criteria and Procedures for Designation and Consideration of Acts” (National Conference of Commissioners on Uniform State Laws, adopted 2 Aug. 1988), § 4.
23.
23. Some of the oppositional votes were not against the act but against its being designated a model act, rather than, as recommended by the Drafting Committee, a uniform act.
24.
24. See Foley v. Interactive Data Corp., 47 Cal. 3d 654 (1988).
25.
25. William B. Gould, “Stemming the Wrongful Discharge Tide: A Case for Arbitration,”Employee Relations Law Journal, 13:404 (Winter 1987-88).
26.
26. For a more extensive treatment of these costs, see Maltby, `Projected Economic Impact.”
27.
27. Professor Clyde W. Summers of the University of Pennsylvania Law School, testimony before Pennsylvania, General Assembly, House of Representatives, Labor Committee, 17 Sept. 1986.
28.
28. The letter signed by these authorities is available from Professor Theodore St. Antoine, University of Michigan Law School.
29.
cited by Howard S. Block, “Toward a `Kinder and Gentler' Society” (Presidential Address, National Academy of Arbitrators, May 1991), in which he advocated legislation patterned after META.
30.
30. Aaron Bernstein and Zachary Schiller, “Tell It to the Arbitrator,”Business Week, 4 Nov. 1991, p. 109, quoting Professor Theodore St. Antoine.
31.
31. “Labor Letter: A Special News Report on People and Their Jobs in Offices, Fields and Factories,”Wall Street Journal, 10 Sept. 1991.
32.
32. Stuart Henry, “A State-by-State Comparison of Recent Developments in Legislative Proposals on Employment Termination Law for Private Nonunionized Employees,”Journal of Individual Employment Rights, 1:97 (1992).
33.
33. Ibid., p. 98.
34.
For an elaboration and update of these data, see idem, “Legislating Just Cause, 1980-92,” this issue of The Annals of the American Academy of Political and Social Science.
35.
35. Henry, “1992 State-by-State Update.”
36.
36. See Henry, “Legislating Just Cause.”
37.
37. Montana, Puerto Rico, and the U.S. Virgin Islands enacted just-cause termination laws before META was formulated. Montana's law, however, requires resorting to the courts.
38.
See Stanley M. Fisher, “Model Employment Termination Act (META)” (Address delivered at “Labor Issues 1992: Rebuilding America,”1992 Conference of the National Conference of State Legislatures, San Diego, CA, 20-23 Nov. 1991).
39.
39. See Henry, “State-by-State Comparison,” p. 95.
40.
40. Stuart Henry, “State Contracts, Relevant Committee Chairs and Organizations” (Appendix to 1992 State-by-State Update Survey, Eastern Michigan University, 1991).
41.
41. Interestingly, human rights sections of state bar associations that know of META are unanimous in their support of it.
42.
42. Maltby, “Decline of Employment at Will.”
43.
43. Milo Geyelin, “Courts Are Raising the Bar for Employee Suits,”Wall Street Journal, 31 Dec. 1993.
44.
44. American Federation of Labor and Congress of Industrial Organizations, Executive Council, “Statement of the Employment-at-Will Doctrine,”Daily Labor Report (BNA), 23 Feb. 1987, vol. 34, p. E-8. Yet their representative to the Drafting Committee has been less than supportive of assisting in the introduction of META into legislation based upon certain objections.
45.
45. It is important to note that META is not a plant-closing law, and terminations based on economic demands are excluded from protection. Nor does META require the creation of jobs.
46.
46. Block, “Toward a `Kinder and Gentler' Society,” p. 20.
47.
47. Delaware, House Bill 437, 26 Feb. 1992.
48.
48. State of Washington, House Bill 2787, 1992.
49.
49. See the case for the Kansas Legislature to begin serious consideration of META. Eric D. Barton, “Comparing Kansas Employment-at-Will Law with the Model Employment Termination Act,”Kansas Law Review, 41:169 (1992).
