The "At-Will" Principle: Legal, but Not Right

I'm not a lawyer. The following paragraphs are not certified legal opinions. They are my attempt to make sense of court opinions and legal essays on employment law.

The doctrine of "at will" employment appeared historically in the years after the emancipation of slaves in the U.S. It is first asserted in 1877 in a law treatise discussing "master-servant" relations. In an imagined free market in which the master and servant enter into an employment relationship, nothing limits the ability of either, but especially of the employer, to terminate the relationship. This assertion came to be Incorporated into the late nineteenth-century understanding of the rules of employment, unless a written contract specifies otherwise. From the perspective of our time, it is not hard to see the residue of the slavocracy being repackaged at the end of the era of Reconstruction.

Since workers and employers are not by any careful analysis "equals," the result was a growing body of juridical decisions and traditions of employment practice by which the employer became the sole determinant of the conditions of employment for the vast majority of workers. North Carolina is one of thirteen states which does not accept the idea of an "implied contract." However, all states subject the concept of "at will" employment to certain limitations.

The most prominent hindrance to unilateral termination by the employer is a written agreement specifying the term of employment and the permissible causes of termination, a contract. In addition, the arbitrary and unilateral power of an employer also can face limits when an employee handbook describes conditions of employment, limits on causes for termination, and processes for termination and appeal. Such employee handbooks are among the expectations that accrediting agencies expect of institutions of higher learning. For example, the Faculty Senate and Dean's Council recently completed a collaborative effort of revising the Faculty Grievance Process. Not many years ago, the trustees had adopted the policy now being revised as a requirement imposed by the accrediting commission for the Divinity School.

North Carolina and forty-one other states acknowledge that public policy favoring justice and fairness demands that some reasons for termination must be unlawful: an employee may not be punished for refusing to do something unlawful; an employee may not be punished for exercising rights; and a "whistleblowing" employee cannot be punished for speaking up about unlawful conduct. Furthermore, some specific laws, primarily at the federal level, place limits on dismissal: anti-discrimination laws, family and medical leave laws, worker adjustment and retraining laws, and occupational health and safety laws. Finally, a range of case law, common law, and constitutional interpretations may impact the "at will" principle.

In discussions about employment and dismissals, it is common to hear the statement, "North Carolina is an 'at-will' state." So much for stating the obvious. The next step in reasoning is to examine the ways in which North Carolina employment law revises and limits the "at-will" principle.

But there is a far more important consideration for a liberal arts institution founded and grounded on Christian faith. Now I am moving into my specific training as a scholar of theological ethics. Certainly the laws of North Carolina allow employers to have a great deal of unilateral power over employees. But that does not mean that our moral convictions should be lowered to the least common denominator. Everything that is legal is not right. It is no surprise to any of us that people with the power to interpret the laws do not necessarily look out for the interests of others. Just because something is allowed, or possible, does not mean that we should do it.

Built on humane ideals, aspiring for the betterment of those who have been denied access, our institution should aim for a higher standard of treatment of its employees. The legacy of inequality and arbitrary exclusion that required the founding of HBCUs must not be allowed to remain the rule of their operation. The "at-will" principle deserves to go the way of the slavocracy which gave birth to it. Let us take the lead in this over the majority institutions who are our neighbors. We must be a community who treats its members better.

Mike Broadway