Implied Contract Rights to Job Security Note 26 Stanford Law Review 1973-1974

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26 Stan. L. Rev. 335 (1973-1974)
Implied Contract Rights to Job Security

handle is hein.journals/stflr26 and id is 349 raw text is: NOTES
Implied Contract Bights
to Job Security
Unless an employment contract expressly specifies a term of employ-
ment, an employer may discharge an employee for a good cause, a bad
cause, or no cause at all.' This employment at will rule, designed to pro-
tect freedom of enterprise,' was adopted by most American jurisdictions
during the last quarter of the 19th century' despite its harsh impact on
employees.' The rule's influence on the employment relationship in this
country has been so pervasive5 that modern legal writing frequently accepts
the doctrine without inquiring into its logic or its applicability to current
employment conditions.'
Two recent Supreme Court cases, Board of Regents v. Roth' and Perry
v. Sindermann,8 provide an opportunity to reexamine the doctrine of em-
ployment at will. Although these cases also involved other issues,' they
x. One court stated the doctrine to be that an employer may discharge for good cause, for no
cause, or even for cause morally wrong, without being thereby guilty of legal wrong. Payne v. West-
ern & A.R.R., 81 Tenn. 507, 519-20 (1884), overruled on other grounds, Hutton v. Watters, 132
Tenn. 527, 179 SAV. 134 (i915); see Blusnrosen, Workers' Rights Against Employers and Unions:
Justice Francis-A Judge for Our Season, 24 RuTGERs L. Rav. 480, 481 (1970); Weyand, Present
Status of Individual Employee Rights, N.Y.U. 22ND ANNUAL CONFERENCE ON LABOR 171, 175 (1970);
Note, Employment Contracts of Unspecified Duration, 42 CoLum. L. REV. z07 (1942).
2. Blumrosen, supra note x, at 481; see text accompanying notes 55-63 infra.
3. 1 C. LABATr, MAs-mxs AND S avArr § 159 (2d ed. 1913) [hereinafter cited as LaATr]; Blum-
rosen, supra note I, at 481; Note, supra note I; see note 50 infra.
4. See, e.g., Clarke v. Atlantic Stevedoring Co., 163 F. 423 (C.C.E.D.N.Y. 1908) (200 black
stevedores hired for permanent positions discharged to make room for white stevedores); Lewis v.
Minnesota Mut. Life Ins. Co., 240 Iowa 1249, 37 N.W.2d 3z6 (1949) (company's best salesman
dismissed without notice or cause notwithstanding promise of lifetime employment in return for
remaining with the company); Skagerberg v. Blandin Paper Co., 197 Minn. 291, 266 N.W. 872
(936) (court allowed firing at employer's will notwithstanding employee's previous relinquishment
of an established business, the rejection of another attractive job offer, a move across state lines, the
purchase of another employee's house as part of the deal, and correspondence indicating an under-
standing of permanent employment as an engineer).
5. Blumrosen, supra note I, at 481; Weyand, supra note x, at 178-79.
6. A. Wxss, CoLL cTrvE BARGAINING PRovIsIoNs: DiseHaRGE, DISCIPLINa AND QUITS; DsMSSAL
PAY PRovIsioNs i (U.S. Bureau of Labor Statistics, Dep't of Labor Bull. No. 908-5, 1948). Numerous
cases exemplify judicial acceptance of the doctrine without analysis. See, e.g., J.I. Case v. NLRB,
321 U.S. 332, 335 (1944); Associated Press v. NLRB, 301 U.S. 103, 132 (i937); NLRB v. Jones &
Laughlin Steel Corp., 30 U.S. X, 45 (i937); Odell v. Humble Oil Co., 20 F.2d 123, 128 (Ioth Cir.),
cert. denied, 345 U.S. 941 (1953); American Fed'n of State Employees v. Shapp, 443 Pa. 527, 280
A.2d 375 (197). See also Note, Right of an Employer to Discharge an Employee for Refusal to
Testily before a Congressional Committee on the Ground of Self-incrimination, 38 MARQ. L. Ray. 8,
24 (X954).
7. 408 U.S. 564 (1972).
8. 408 U.S. 593 (1972).
9. Discussion of Board of Regents v. Roth, 408 U.S. 564 (1972), and Perry v. Sindermann, 408
U.S. 593 (1972), is found in the text accompanying notes 94-i0E9L infra. Both cases involve constitu-