Truth-in-Hiring Claims and the At-Will Rule: Should and Employer Have a License to Lie?

Wednesday, January 1st, 1997 at 12:00 am by Sandra J. Mullings
Sandra J. Mullings, Truth-in-Hiring Claims and the At-Will Rule: Should and Employer Have a License to Lie?, 1997 Colum. Bus. L. Rev. 105

Over the last two decades, employees have challenged the presumed right of an employer to terminate employment at will — i.e., at any time and for any reason — without liability. Through case law and statutes, many jurisdictions have identified the circumstances in which the right to terminate may be limited, or the reasons for doing so which may be impermissible. In the past few years, complaints by terminated employees appear to have more frequently included or been cast as claims alleging misrepresentation by the employer during the hiring process, i.e., so-called truth-in-hiring claims. Employers (and sometimes, dissenters) have argued that such claims are inconsistent with the employer’s right to terminate employment without liability or are merely attempts to recast claims that do not meet the requirements of the causes of action the particular jurisdiction does allow. These arguments notwithstanding, in a number of cases, misrepresentation claims by at-will, or presumptively at-will, employees have been sustained. This article looks at the interplay between the at-will doctrine and claims of misrepresentation as to termination of employment. As background to the discussion, Part I of this article briefly reviews the employment-at-will doctrine and the bases on which liability has been imposed on employers in connection with employee terminations. Potential conflicts between the at-will rule, as modified by those causes of action, and a misrepresentation claim are identified. Part II examines cases in which the employee alleges a misrepresentation concerning whether the employment is terminable at-will. Part III examines cases in which the employee alleges misrepresentations about facts that may result in termination. The article concludes that a misrepresentation claim by an at-will employee is not inconsistent with the at-will doctrine and that courts have not permitted plaintiffs to use such claims as substitutes for the accepted limitations on the right to terminate at will.

Author Information

Associate Professor, Baruch College