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

Simple, Non-Threatening, Courageous Acts

This week I received a forwarded email discussing concerns of some faculty at Shaw University. It was an invitation to a conversation. I was not part of meetings from which the document emerged, but I like very much what it had to say and how it said it.

Part of the difficulty university faculty face, whether at Shaw or elsewhere, is the time and opportunity to discuss and act on matters pertinent to their work and the work of the school. When these opportunities are not structured into university life, faculty find themselves relying on the conversations in the hallways, in the parking lots, and at the coffee pots. These fragmented conversations often elicit important ideas, but the bits and pieces of progress lie unresolved or even dormant, while the day-to-day concerns preoccupy our thoughts and energies.

Now and then, these scraps of communal discernment find their way into a document. Some such documents are carefully worded and diplomatic. Yet if there is no energy or structure to keep them moving, the conversation may not go anywhere. Other times, a faculty member may shoot off a hot letter to vent frustration. This often results in a crisis of relationships that forecloses further conversation.

The document "Five Priorities to Improve Faculty Morale" is not the kind of statement that should cut off dialogue. It is composed in reasonable language with appropriate respect for the conversation partners. It does not pretend that all is well, nor does it demonize people by singling them out as the cause of problems. It asks for conversation on important topics, and it expresses a set of priorities clearly. By showing respect and explaining reasons, "Five Priorities" offers to continue a conversation rather than to drop a bomb and see who are the casualties.

It would be pointless to ask for conversation on the pretense that faculty members have not already come to some conclusions of their own about how to improve the university and their place in its work. This document is direct on a number of issues such as at-will employment, contracts and tenure, hiring processes, structures of faculty governance, faculty workload, and compensation. Who would be surprised that these are on the agenda? Acknowledging them is a key step toward addressing them. Thus, by being specific, the "Five Priorities" helps establish the ground for a robust conversation.

Additionally, "Five Priorities" clarifies for the faculty that our role in the university is never as passive recipients of action, nor merely as responders to the work of others. We also are initiators of the work that makes a university what it must be.

All who have studied the history of universities would know that they began as gatherings of students in cities where groups of teachers had congregated. The essence of a university resides in its faculty's capacity to preserve, pass on, and create the knowledge which allows humanity to thrive.

Over the centuries, innovations have led to administrative units which structure that process so that students and public communities can better benefit from the university's work. Therefore the modern university depends on both administration and faculty to assure its effective work. They must work together. Even if they have not been at odds, in isolation they will be hindered from accomplishing all that they can. The "Five Priorities" asks faculty to take initiative to deal with matters which for many seem to have been delayed for too long.

I have been considering launching this blog since late June. The time now seems right. It is not a perfect medium, but I hope it can be useful. Perhaps it will provide a setting where topics of concern and interest to our faculty can be examined and discussed. It may be that some better way to have this conversation will emerge, and rest assured that I have no vested interest in being in charge of the conversation. For now, I look forward to seeing your comments and interactions.

With this commendation, let me encourage you to review the document. Ask a colleague for a copy if you have not seen it. I hope to include it on this site in future postings.