The general rule in American employment has been that an employment relationship for no specified duration may be terminated at any time and for any reason (or no reason) by either the employee or employer. This rule is known as the "at-will" doctrine.

Recently, however, courts in a number of states have created broad exceptions to the at-will doctrine which severely limit business managers' discretion in terminating employees. Nonunion employees operating without an individual employment contract or a union collective bargaining agreement may also be covered under these judicial exceptions.

These court decisions are commonly known as "wrongful discharge" cases and can be divided into two broad categories. The first category involves "public policy/retaliatory discharge cases," where employers have been held liable for employee discharges that violate a clearly defined public policy—such as employer retaliation against employees for filing a worker's compensation claim, "whistle blowing," or refusing to perform unethical or unsafe activities on the employer's behalf.

The second category involves "implied contract claims," which generally concern written or oral statements made by an employer that are alleged to create an implied promise that an employee may be discharged only for cause. Under this theory, courts have looked to specific statements in employer notices, employee manuals, and handbooks;62 employer policies and procedures; and favorable employee evaluations, as well as oral assurances of continued employment, to find a limit on the employer's right to terminate employees at will.

The trend of the law in this area is to expand exceptions to the at-will doctrine. The source of change is at the state level only and the exceptions to the at-will doctrine vary from jurisdiction to jurisdiction. In Michigan, the at-will doctrine is steadily eroding.

NLRA Applies to All Private-Sector Workers

The provisions of the National Labor Relations Act apply to all private-sector employees; employees need not be union members, or even work in a unionized business, in order to be covered by the NLRA's employment provisions.

The NLRA guarantees all employees a legal right "to engage in concerted activities for the purpose of collective bargaining or for other mutual aid or protection [emphasis added]." If an employee chooses to act through a bargaining representative, that right to do so is protected under the NLRA. Employees can also represent their own interests by collective action, without union intervention: This is commonly known as the doctrine of protected concerted activity.

The NLRA also protects employees against discrimination or discharge for any lawful concerted activity aimed at improving workplace conditions. This "concerted activity" may include protesting to a government agency about undesirable situations at the workplace, or even in some cases, walking off the job to avoid an obviously dangerous condition.63 These employee activities do not have to be related to any union organizing attempts and are protected even if a union does not represent the protesting worker, provided that the activities are legal.

In order to be protected under the NLRA, however, the employee activity must be concerted, meaning that it involves two or more workers acting together or that a single employee is engaged with, or on the authority of, other employees. Generally, the NLRB does not accept the notion that when an individual employee complains about a workplace condition (such as wages) that he is in fact or by implication speaking on behalf of his fellow workers. Employee concerted activity must also be related to conditions in the workplace—such as, wages, hours, and terms of employment—in order to qualify for protection under the NLRA.64 Unlawful actions such as trespassing, defaming the employer, and threatening fellow employees are not protected.

The Proliferation of Employment Laws

In addition to the NLRA, employees and employers are subject to a rapidly growing number of federal and state employment laws covering a variety of circumstances, and the list keeps growing. There are laws that

  • regulate worker health and safety (Occupational Safety and Health Act of 1970);

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  • prevent discrimination based on gender, race, age, or disability (Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, the Americans with Disabilities Act of 1990, and Michigan's Elliot-Larsen Civil Rights Act);

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  • provide workers' compensation (Michigan's Worker's Disability Compensation Act of 1969);

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  • protect pensions that are established at the workplace (Employee Retirement Income Security Act of 1974);

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  • protect older workers (Older Workers Benefit Protection Act of 1990);

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  • guarantee job security to parents who need time off to care for a newborn, newly adopted, or seriously ill child (Family and Medical Leave Act of 1993); and

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  • protect the rights of disabled employees to compete for employment opportunities for which they are qualified with or without reasonable employer accommodation (Americans with Disabilities Act of 1990).

Unfortunately, most federal and state employment policies, including those of the past 30 years, have been enacted with too little regard for modern economic realities, such as the globalization of commerce. Congress and, to some extent, state legislatures have been more than willing to act in this new and rapidly changing business climate by mandating all sorts of employment laws on businesses—which often hurt the very workers these laws are supposed to help. A prime example is the minimum wage, which hurts low-income workers by pricing them out of the labor market.

As a result, government—through direct intervention—has changed the legal nature of the employer-employee relationship. The at-will nature of the employment relationship, the traditional view, has been replaced by the view that employment is now one of social obligation. Employers now find themselves owing new and expanded duties and obligations to their employees (either mandated by statute or by the extensions of common law principles) by simple virtue of the fact that they are employers. Unless some development occurs to reverse this trend, government will continue to transform the basic nature of the employment relationship from one of employer-employee to "social partners" through the passage of new occupational and employment laws.