This paper examines the at-will employment doctrine, analyzing both its benefits and drawbacks for employer-employee relationships. Using three workplace scenarios involving social media criticism, blog posts, and expense report fraud, the paper applies utilitarian and Aristotelian ethical frameworks to determine appropriate employment decisions. It then surveys Nevada's at-will employment law and discusses the landmark case Department of Homeland Security v. MacLean (2015), in which a TSA air marshal's whistleblowing was deemed protected under federal law despite state at-will provisions. The paper concludes that at-will employment requires careful legal and ethical navigation, particularly regarding social media activity and whistleblower protections.
The at-will employment doctrine has both negatives and positives. The positive for the at-will employee is that it places no contractual obligation between employee and employer. Either party is free to end the relationship at any time: the employee may quit, or the employer may terminate the employee without notice or a stated reason. Of course, like any rule, there are exceptions. For instance, an employer cannot fire an employee for reasons of race, creed, ethnicity, or other protected characteristics. Recent interpretations of the National Labor Relations Act by the National Labor Relations Board have also established that employers may not fire employees because of criticisms the employee makes about the workplace via social media (Riddle, 2016; Cavico, Mujtaba, Muffler, & Samuel, 2013).
The negative side of the at-will doctrine is that it can impair or limit employer-employee relationships. It inspires little loyalty in the sense of a long-term relationship; both employer and employee are oriented toward what they personally gain from the relationship rather than how they work together as a team toward a mutual goal. As Arnow-Richman (2011) notes, "today's employers operate principally in an external labor market in which implicit promises of long-term employment have been replaced by implicit promises of long-term employability" (p. 1). Nonetheless, the at-will doctrine places no obligations on either party — either is free to end it at will — and in a workplace environment where no such obligation exists, relationships can quickly deteriorate, as the cases below illustrate.
First, there is John, who posted a rant on his Facebook page criticizing the company's most important customer. While this is an unwise move and will not win him any friends in management, it is questionable whether he can legally be fired. As Cavico et al. (2013) note, social media is an outlet of free speech, and as Riddle (2016) observes, the National Labor Relations Board has viewed social media criticism of one's workplace as protected activity that does not justify termination — in other words, it cannot be used to terminate an at-will employee. However, in John's case, he did not criticize the company itself but rather the company's client. This opens the incident to an entirely different interpretation and could therefore be seen as grounds for dismissal. Thus, John could legally be fired.
However, to limit liability and minimize operational impact, the ethical approach to consider here is the utilitarian approach — John's behavior is damaging to customer relationships and therefore he must go. At the same time, out of respect for John's free speech on social media, one could take a transformational leadership approach: retain John, correct his behavior, and coach him to be a better employee who does not criticize customers regardless of their shortcomings. This alternative could also limit liability should John choose to sue for wrongful termination.
Ellen, on the other hand, is not someone who can be legally fired. She is criticizing the company directly on a blog, which functions as a social media outlet. According to the National Labor Relations Board, such postings are not legally grounds for termination. In fact, were Ellen to be fired, she could sue or seek compensation for wrongful termination. The fact that the company has no whistleblower policy in place would only strengthen her argument — she is blowing the whistle publicly via social media precisely because there is no internal channel within the company to raise concerns through the hierarchy. Ellen therefore should not be terminated, at least not for this behavior, as doing so would almost certainly backfire against the company.
The proper ethical approach to Ellen's situation is the Aristotelian view — that Ellen's observations touch on a universal concept of good that should be respected and upheld. This perspective could lead to an internal review of the company's practices and perhaps even to positive change. Ellen could be viewed as a helper rather than a harm to the company.
"Nevada's specific at-will employment statutory framework"
"TSA whistleblower case and its legal outcome"
MacLean sued, and the case was ultimately resolved in 2015. The Court's opinion was that MacLean could not be fired for releasing information to the media, as this activity constitutes whistleblowing protected by federal law. The TSA attempted to argue that MacLean had violated the agency's internal regulations prohibiting employees from sharing information with outsiders. However, the Court held that Nevada state law did not include the term "regulation" in its at-will employment statutes, whereas other states did. In Nevada, the only operative term used was "law," and thus the TSA's objection did not hold up in court.
MacLean was vindicated (Department of Homeland Security v. MacLean, 2014), and his termination was found to be wrongful in light of whistleblower protection laws, which were not contravened by state law pertaining to TSA regulations. MacLean won the case and demonstrated that in at-will states, the law must specifically incorporate the term "regulation" in order to cover all relevant bases — a lesson with significant implications for how state employment statutes are drafted and interpreted.
Arnow-Richman, R. (2011). Just notice: Re-reforming employment at will. UCLA Law Review, 58(1), 1–13.
Cavico, F., Mujtaba, B., Muffler, S., & Samuel, M. (2013). Social media and employment-at-will: Tort law and practical considerations for employees, managers and organizations. New Media and Mass Communication, 11, 25–41.
Department of Homeland Security v. MacLean. (2014). IIT Chicago-Kent College of Law. Retrieved from https://www.oyez.org/cases/2014/13-894
Policy and Program Report: Labor and Employment. (2016). Nevada Legislative Council Bureau. Retrieved from https://www.leg.state.nv.us/Division/Research/Publications/Pandpreport/02-LE.pdf
Riddle, B. (2016). Employment at will comes with many exceptions in Kentucky. The National Law Review. Retrieved from http://www.natlawreview.com/article/employment-will-comes-many-exceptions-kentucky
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