When Mrs. J.L. Comerford spurned the advances of her husband's boss at International Harvester Co., the boss got even. The husband was fired.
Mr. Comerford sued. The boss, he said, had fired him "out of a spirit of revenge" because Mrs. Comerford had resisted his advances. Comerford lost. The Alabama Supreme Court, without disputing Comerford's claim that his boss was out to "alienate the affections" of Mrs. Comerford, simply noted that Comerford was an "at-will" employee and therefore could be fired for any reason.
The Comerford case occurred in 1936, but the Alabama Supreme Court cited it as recently as 1983 in upholding the common law doctrine that in the absence of a specific contract an employer can fire an employee at will.
The Comerford case, cited in a monograph prepared several years ago for the American Society of Personnel Administrators, is an admittedly extreme example. But it highlights what is fast becoming one of the biggest issues in labor-management relations facing companies today: challenges to the doctrine of employment-at-will.
In the last three years, challenges to management's right to fire people indiscriminately have, in the words of management lawyer Larry Lorber, "grown with a vengeance." Lorber, who heads the labor law section of Breed, Abbott & Morgan, said state courts throughout the country are creating new rights for nonunion workers. The at-will doctrine does not apply to union workers because they have contracts governing the terms of their employment.
Lorber, one of the authors of the ASPA monograph, predicted that employers will be coming to Washington within the next three years "screaming for relief" in the form of federal legislation. He said they probably will not get any.
Limitations on an employer's right to fire at will began with congressional passage of a variety of public policy laws ranging from the 1964 Civil Rights Act and the Occupational Safety and Health Act of 1970 to the Jury System Improvement Act of 1978. With the passage of these and similar laws, many at the state level, the courts have ruled that an employee cannot be fired for doing something the law seeks to foster or protect.
Employees, for example, cannot be fired on the basis of their race, creed or age. Nor can they be fired for reporting violations of OSHA or other laws setting certain public policy standards.
But lately, as corporations have begun laying off salaried workers with the same regularity as their blue-collar work force in response to mergers, takeovers and global competition, the courts have been extending employee rights far beyond the public policy test.
Because they are more apt to be able to afford a lawyer and willing to fight an employer, much of the case law evolves around the dismissal of white-collar workers. "Let's face it," said a Washington labor lawyer, "this is the healthy white males' way out." But the results of these suits apply to everyone.
Employee handbooks, real or implied promises and employee evaluations have all been interpreted as employment contracts by one court or another. As a result, Lorber said, labor lawyers today spend much of their time going over employee handbooks and other personnel memos and notices "almost like a corporate lawyer going over a prospectus."
In some cases, for example, courts have ruled that by telling someone the annual salary they will receive on the job, they are implying a one-year contract. In other instances, procedures for termination of employment have been ruled an enforceable contract.
Courts in California, Massachusetts and New Hampshire have gone even further, basically ruling that an at-will employee cannot be fired if it can be shown that the employer did not deal fairly.
As of October 1987, according to an ASPA survey, 35 states -- including Maryland and Virginia -- recognized at least a public policy exemption to the employment-at-will doctrine. The District of Columbia along with four states have specifically rejected the notion.
Because the District is still essentially a federal enclave, it is seen as a much better place for employers on this issue. Because the federal courts are less likely to try to make new law than the state courts, said Lorber, "as a practical matter an employer is going to win in the District."
The labor relations director of one Fortune 500 company said the issue is now of so much concern that seminars dealing with the at-will problem have replaced lectures on how to maintain a "union-free environment" in corporate popularity.
Stephen Schlossberg, Washington director of the International Labor Organization and a former general counsel of the United Auto Workers, warns that as more and more nonunion employees turn to the courts for relief, the labor relations rules of corporate America are going to be made by lawyers and the courts.