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O rder N u m b e r 9 1 0 2 7 2 9

A study o f policies and practices for discharging at-w ill
em ployees at M ichigan’s four-year sta te in stitu tion s o f higher
education over a p eriod o f ten years: 1979-1989
Schulte, Ann Marie, Ph.D.
Michigan State University, 1990

UMI

300 N. Zeeb Rd.
Ann Arbor, MI 48106

A STUDY OF POLICIES AND PRACTICES FOR DISCHARGING
AT-WILL EMPLOYEES AT MICHIGAN'S FOUR-YEAR
STATE INSTITUTIONS OF HIGHER EDUCATION
OVER A PERIOD OF TEN YEARS;

1979-1989

By
Ann M. Schulte

A DISSERTATION
Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of
DOCTOR OF PHILOSOPHY
Department of College and University Administration
1990

ABSTRACT
A STUDY OF POLICIES AND PRACTICES FOR DISCHARGING
AT-WILL EMPLOYEES AT MICHIGAN'S FOUR-YEAR
STATE INSTITUTIONS OF HIGHER EDUCATION
OVER A PERIOD OF TEN YEARS: 1979-1989
By
Ann M. Schulte

During the last 10 to 15 years, employees have become
more active in protecting what they perceive as a "right"
to

their

jobs.

They

are

increasingly

challenging

the

nineteenth-century common law doctrine called "employmentat-will ."
the

The traditional

doctrine

is

that

statutory provision,

common law interpretation

absent

any

either

employment

a

contractual

relationship

is

of
or
"at

will" and therefore terminable at pleasure by the employer
or the employee for good cause, bad cause, or no cause at
all•
been

However, since the Industrial Revolution, there have
significant

and

important

inroads

into

the

employment-at-will doctrine in the context of collective
bargaining, civil service rules, statutory protection, and
judicial decisions.
The purpose of the study was to describe,

identify,

and assess what effect the erosion of the doctrine has had

Ann M. Schulte
on

selected

Michigan's

personnel
four-year

policies
state

and

procedures

institutions

of

of

higher

education, as perceived by those organizations, during the
period

1979-1989.

understanding

of

The
how

research

provides

representative

a

better

institutions

in

Michigan have responded to the erosion of the doctrine and
to

the

litigation

examining
executives

and

surrounding

interrelating

who

share

vrrongful

points

of

discharge

view

responsibilities

for

of

the

the

by
key

human

resource function.
The writer has summarized, in a general manner,

some

of the specific changes, adjustments, or new policies and
procedures related to discipline and discharge that may
have

occurred

or will

occur

in

the

future

due

to

the

changes in the interpretation of the doctrine.
In a broader and more practical sense, the research
provides human resource executives with information about
what managerial activities and decisions are taking place
at

other

justifying

similar
or

institutions.

reinforcing

their

It

them

in

related

to

assists

behavior

employment practices in working with nonunion employees.
In addition, the description and analysis provides insight
into the possible related effects on the organizations and
future trends in employment practices.

ACKNOWLEDGMENTS

Sincere appreciation and thanks are extended to the
members

of

my

Nonnaiaker,

doctoral

Chair;

advisory

Dr.

throughout

this

research

Dr.

Grandstaff, Dr.

Marvin

Hickey, and Dr. Daniel Kruger.

committee!

Eldon
Howard

Their guidance and support
project

were

much

very

appreciated.
Of

great

importance

to

m e , both

personally

and

professionally, were my counterparts in the human resource
and management

professions, many

of whom

knew

of

my

activity and persistence with this project and assisted roe
by sharing their knowledge and expertise on the subject.
Two very special people who shared their friendship and
lent support when I

needed it most were my close friends

and associates, Marilyn Boyd and Frank Hughes.

I am also

thankful to the professional associations in which I have
memberships,

such

as

the

Society

of

Human

Resources

Management and the American Management Association, which
provided a base of knowledge and reading materials.
special
Attorney

note

of

at

Law,

gratitude
from

goes

whom

to

David

reference

John

A

Masud,

materials

and

discussion on the

subject matter were of great

impetus

toward the pursuit of the topic.
There

are,

of

course,

very

special

and

important

people in my life for whom the words "thank you" are just
not enough.

Those special people are my husband,

and our children,

Ryan and Renee.

Their love,

Terry,

support,

and encouragement provided a great source of motivation.
Their sacrifices and their patience made the completion of
this project a priority.

I am also grateful to my parents

and

their

parents-in-law

enthusiasm.

for

support,

interest,

and

Without the support from all those I love,

this project may not have come to completion.

v

TABLE OF CONTENTS
Page
LIST OF T A B L E S ...............................

viii

Chapter
I.

II.

THE STUDY

..........

.

1

Introduction . . . . . . . . . . . . . .
Erosion of the Employment-at-will
D o c t r i n e ........................... .
Summary of Related Literature ..........
Statement of the P r o b l e m ...............
Purpose of the Research . . . . . . . . .
Importance of the S t u d y ..........
Research Questions . . . . . ..........
Methodology . . . . . . .................
Assumptions of the Study . . . . . . . .
Limitations of the Study . . . . . . . .
Definition of Terms
...............
Organization of Subsequent Chapters . . .

1

REVIEW OF THE RELATED L I T E R A T U R E ........
The Concept of the Employment-at-Will
D o c t r i n e ............
The Doctrine Today
.............
Statutory Protections . . . . . ........
Federal Level
.................
State Level
..........
.
Judicial Developments ...................
Violation of Public Policy Exceptions .
Existence of an Implied Contract . . .
Covenant of Good Faith and Fair
Dealing
..........
Summary . . . . . . . . . . . . . . . . .

III.

RESEARCH METHODOLOGY AND THE DESIGN OF
THE STUDY .......... . . . . . . . . . .
Introduction
.....................
Description of the Population and
S a m p l e ...............................

3
6
11
12
13
14
15
18
18
20
20
22
22
27
30
30
32
33
35
40
47
50
52
52
53

Page
Design of the Instrument
........
Data C o l l e c t i o n .........................
Data A n a l y s i s ...........................
S u m m a r y .................................
ANALYSIS OF THE DATA..

...................

.

IV.

Introduction . . . . . .................
Data Analysis
. . . . .
Discussion of Questions in Parts I
and II: General Demographic Infor­
........
mation
Research Question 1 ...................
Research Question 2 ..........
Research Question 3 . . . . . . . . .
.
Research Questions 4 and 5 ..........
Discussion of Questions in Part X:
Experiences With Lawsuits ..........
Summary . . . . . . . . . .
............
V.

55
59
61
62
.

64
64
67
67
71
75
83
92
94
95

SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS .

96

Introduction
...................
Purpose and Framework of the Study . . .
Conclusions and Discussion ............
Research Question 1 ...................
Research Question 2 ......... . . . . .
Research Question 3 ...................
Research Question 4 . .
............
Research Question 5 . . . ............
Research Question 5 . .
............
Interpretations and Inferences . . . . .
Implications for Policy and Practice . .
Suggested Areas for Future Research . . .
Conclusion . . .
. . . . . . .

96
99
103
106
108
112
115
115
117
118
121
125
127

APPENDICES
A.

THE QUESTIONNAIRE AND

INTERVIEW GUIDE . . .

129

B.

LETTER TO P A R T I C I P A N T S ...................

138

C.

TABLE OF CASES

139

BIBLIOGRAPHY

. . . . . . . .

..........

......................................

vii

142

LIST OF TABLES

Job Titles of Respondents

.................

68

Respondents' Length of Service at Insti­
tution ...................................

69

Respondents' Length of Service in Incumbent
P o s i t i o n ............................... ..

70

Composition of Workforce for All Institu­
tions .
...............................

71

Change in Final Authority for Discipline
From 1979 to 1989 . . . . . . ..........

73

Change in Final Authority for Discharge
From 1979 to 1989 ........ ..............

73

Comparison of Personnel Policies, Proce­
dures, or Rules Between 1979 and 1989 . .

75

Reported Percentage Change in Various
Discipline/Discharge Management
Activities From 1979 to 1989 ............

84

Respondents' Views of the Wrongful
Discharge Issue . . . ...................

88

Formal Instruction to Management on
Discipline/Discharge . . . . . ..........

92

Assistance Sought From Outside Sources . . .

93

Lawsuits Filed and Cause of Action Claimed
From 1979 to 1989.. .......................

95

viii

CHAPTER I
THE STUDY
Introduction
Three middle-management employees who were
during

a

corporate

reorganization

and

fired

replaced

with

several new and younger employees successfully sued their
employer.

The jury awarded $3.8 million in damages to the

three former employees.
4386,

N.D.

111.

Fortino v Quasar Co. . No.

(11/14/88) .

87-C-

A jury verdict of $375,000

was awarded to an employee who was fired in retaliation
for asserting rights under the Workers' Compensation Act.
James

McGee v

mediation

City

award

situation,

a

of Grosse

in this

terminated

case

Pointe
was

employee

Park

(1987) .

$75,000.
claimed

In
there

The

another
was

no

"just cause" when his employer selectively enforced one of
its policies.

Doncouse v Spartan

Stores. Inc.

(1987).

The jury verdict of $632,000 was mediated at $210,000.
the past,
decision
Today,

In

these employees may have accepted management's
to

fire

them

as

a

matter

of

doing

business.

employees are reaping substantial jury awards

by

bringing wrongful termination suits against the employer.
The threat of wrongful

discharge suits

1

is

said to have

2
become one of the most important issues facing employers
today.
During the last 10 to 15 years, employees have become
more active in protecting what they perceive as a "right"
to

their

jobs.

They

are

increasingly

challenging

the

nineteenth-century common law doctrine called "employmentat-will ."
the

The traditional common law interpretation

doctrine

is that

statutory provision,

absent

either

a

of

contractual

or

any employment relationship is "at-

will" and therefore terminable at pleasure by the employer
or the employee.

Historically,

the employee who was not

covered by a union contract or some

other employment

contract could be discharged for good cause, bad cause, or
no cause at all.
Not included in this group of at-will employees are
unionized workers, representing approximately 22% of the
nonagricultural workforce, who are protected by collective
bargaining

agreements.

Another

group

of

employees

who

typically do not have an at-will employment relationship
are public sector employees covered under federal, state,
and

local

governments

protections.

with

a

history

through

the

or

civil

service

This group represents approximately 15% of

the workforce (Peck, 1979).
had

tenure

of
due

Employees in this group have

challenging
process

the

clauses

right
of

to

their

jobs

the

Fifth

and

Fourteenth Ame n d m e n t s , which prohibit deprivations

of

3

either life, liberty,
law.

or property without due process of

Those covered by collective bargaining agreement,

employed in protected public service positions, or working
under written employment contracts for a specific period
of time can usually be discharged only for good or just
cause.
Erosion of the Emplovment-at-Will Doctrine
Since the Industrial Revolution there have been union
and employment law activities that have afforded workers
some protection
The

first

were made

against

inroads

into

arbitrary or unjust discharges.
the

employment-at-will

doctrine

in the context of collective bargaining.

In

this relationship, employers gave up their unilateral
right to discharge

and

agreed

instead

to

a just

cause

requirement with binding arbitration provided for through
the

collective

bargaining

agreement.

Additional

interpretations and reviews of employment-at-will
employers'

discharge

decisions

came

later,

as

and

federal,

state, and local government employees obtained protection
from arbitrary

dismissal

service rules.

The third form of protection for at-will

employees

came

from

a

through

variety

the

of

creation

federal

of

and

civil

state

statutes, beginning with the National Labor Relations Act
of 1935.

These statutory protections of job security have

been aimed at protecting employee rights.

4

The concept of employment-at-will has also
significant
Nonunion,

judicial

attention

at-will employees,

during

the

last

faced

decade.

who in the past were hired

and fired at the will of the employer, are now challenging
the

right

to

litigation.

their

jobs

As the court systems

hand down decisions
employers are
at-will

through

discharge

in the United

dealing with wrongful

States

disch a r g e ,

finding that their decisions to terminate
are

employees

system and,

wrongful

more

being

evaluated

important, by the

by

the

jury.

judicial

Decisional

developments indicate that courts are struggling to find
ways to meet a perceived need

for broader protection

against unjust dismissal.
Failure on the part of the business to recognize and
avoid

a potential

wrongful

discharge

employer thousands of dollars
attorneys' fees.

suit

can cost

the

in d a m a g e s , as well

as

Thus, when the media announce that the

"ABC Company" lost a wrongful discharge case amounting to
$400,000 in damages,

which is the average settlement

these

Workers

cases

("More

Sue," 1986),

the

in

average

business owner has to be somewhat, if not very, concerned
about his
court

own business practices.

decisions,

resulted
litigation

in

a

with

led

by

California

substantial
significant

A growing
and

explosion
liability.

number

Michigan,
of
This

of

have

employment
liability

5
lies

not

only

corporations.

with

the

medium-

and

large-sized

A number of cases have been brought against

small employers, who tend not to be as sophisticated in
employment matters.
A business must consider many factors when faced with
a wrongful discharge suit.

Unless settled out of court,

these cases are litigated in open court, which can result
in adverse publicity for the employer.
intangible

numerous

costs;

business

There
hours

are many

tied

up

in

consultation with attorneys, lengthy written responses and
disruption of support staff who must probe company records
for

evidence

in

support

of

management's

depositions, and court appearances.

actions,

The tangible costs of

defending the company lawsuit are significant also.

These

include the quantifiable expenses of attorneys' f e e s ,
court

c o s t s , expert-witness

settlements or judgments.
particularly

for

the

retainers, and

sometimes

This becomes a costly burden,
small

business

owner.

Both

intangible and tangible expenses place a premium on either
avoiding such lawsuits or being well prepared to defend
the

company's

policies

and

procedures

when

proper

personnel decisions (from the company's standpoint) result
in an unjustified claim.
The

Research

Coordinator, and

Institute

Bureau

of

of

America,

National

Affairs,

Management. discuss how employer defense

Employment
Personnel

attorneys have

6

been working with business on how to recognize and prevent
wrongful discharge suits by helping business to understand
the kinds of fact patterns or legal principals that have
led to successful lawsuits.

This has been accomplished by

defining the principles underlying wrongful discharge
cases and by synthesizing the common themes of the cases
into a set of guidelines.

The case law during the last

decade has only begun to shape discharge issues.

However,

even

for

wrongful

are

general

in

states

discharge

are

guidelines

legal

the

case

law

where

definitive

still

being

to

criteria

made,

there

advisors recommend that are drawn
assist

business

avoiding wrongful discharge suits.

in

from

recognizing

and

Much of the written

material addressing this subject has offered advice on how
to design a system to avoid creating an implied right to
continued

employment

to

and

implement

a

fair

handling employee discipline and discharge.
most

suits

today

include

a

menu

of

system

In reality,

various

action rather than a single legal principle.

of

causes

of

Attorneys,

therefore, must analyze each cause of action separately to
properly

evaluate

an

employer's

liability

and

possible

defenses.
Summary of Related Literature
One of the most common claims
employment

contract.

In

the

includes the

1980

landmark

implied
case

of

7

Toussaint v Blue Cross/Blue Shield. 408 Mich 579

(1980),

the Michigan Supreme Court rej ected a long-standing legal
presumption that all employment for an indefinite term is
conclusively at-will employment.

The Supreme Court's new

rule is that employment for an indefinite term is still
presumed to be terminable at will, but the presumption is
very

weak.

If

an

employee

can

show

any

employment

statement that caused the employee to reasonably believe
that

the

cause,

employment

then

the

would

be

employee
the

terminated
is

only

entitled

to

employment

unless

discharge.

This

challenge

discharge

"implied"

contract that limited discharge only

case

employer can
paved

decisions

the
by

for

just

lifetime

show just cause

way

for

claiming

for

employees

to

they

an

had

for just

cause.
In the Toussaint case,
created

by

employee

the just cause contract was

handbook

language

stating

employees would be fired only for just cause.

that

Michigan

courts have taken an expansive view in construing employer
statements as "contracts."

In a companion case, Eblinq v

Masco Corp. 79 Mich App 531, 261 NW2d 74 (1977), the just
cause contract was created when an official of the company
told the employee that job security at the

company was

"good" and that the company did not fire anyone "as long
as they're doing their job."

A review of the Employment

8
Coordinator. Vol. 8, shows that subsequent cases have held
just cause contracts were created by the existence of a
"probationary

period,"

by

a

list

of

"causes"

for

discharge," by maintenance of a "grievance procedure," and
by a statement that employees would be retained so long as
their job performance was "satisfactory."
The courts are saying that written policies create a
contractual
mandates

commitment by the employer and that this

strict

compliance.

Any

deviation

from

established procedures may result in a breach of contract
claim.

If

managers

inadvertently

may

be

do

not

follow

creating

a

p r o cedures, they

lawsuit.

If,

in

the

example of performance appraisals, the employer describes
in detail the intervals at which the evaluations will be
given or specifies the number of warnings permitted before
discipline or discharge, it must follow those procedures.
Once the judge believes that a just cause contract
exists, the judge will likely refer the case to the jury
to determine whether there was just cause for discharge.
Even if an employer is found not to have created a just
cause

contract,

discharges

if the

a jury

employer

"satisfaction contract."
create

a

may

satisfaction

still

is

found

be
to

able

to

have

review

created

a

An employee handbook can often

contract

where,

for

example,

an

employer relays to employees that they may be discharged
if the employer is "dissatisfied" with their performance.

9
The

jury

here

determines

whether

the

employer

was,

in

fact, "dissatisfied" (Bogas & Vogan, 1989).
Although there is no guarantee that an employer will
not face a Toussaint jury trial,

legal advisors suggest

that an employer make a definite decision as to whether it
wishes to
will

or

will.

reserve

to

its right to terminate employment

change

employment

benefits

Once that decision is made,

and

policies

at
at

it is suggested that

the employer clearly state its intent to exercise those
rights

barring any

language

in

company literature or documents (Bacon & Gomez, 1988) .

It

is necessary

to

form

reaffirm

of contradictory

clearly

the

company's

at-will

employment policies in its application form, handbook, and
any

other

employment-related

m a n u a l s , to

clearly

employment policies

reserve

policies
the

right

and benefits,

management's rights to make

to

and
to

procedural
change

clearly

final decisions,

all

reserve

even under

standards that might be in a handbook, and to protect the
management from claims of "verbal contracts," by reserving
the

right

individual

to

modify

the

at-will

policies

in the organization or a body

for

one

of decision

makers such as the board of directors (Bureau of National
Affairs, 1986, 1988a, 1988b, 1988c? Research Institute of
America, 1989; Shepard & Moran, 1982).
Another common claim in wrongful discharge cases is
the concept of discharges in violation of "public policy."

10

This is one of the areas of Michigan employment law that
is still developing.

The theory is that the state has an

interest in encouraging its citizens in some activities,
such

as

reporting violations

of

law.

the

policy" of the state, therefore,

The

prohibits the discharge

of an employee for engaging in such activities.
advice

to

instances

employers
in which

here

is

to

employer

the

"public

evaluate

wishes

to

The legal
carefully

restrict

employee's activities of an "encouraged" function.

an

Also,

employers are advised to refrain from retaliating against
an employee who chooses to exercise his/her civil rights
or refuses to commit an unlawful act.
Michigan has recognized that an employer can be sued
for

negligence

arbitrary

manner

if

it

terminates

without

an

employee

investigation.

Michigan case of Chamberlain v Bissel. 574

in

Following
F Supp

an
the

1067

(E.D. Mich. 1982), where the court ruled that the employer
failed to warn the employee that lack of performance could
lead to termination, legal advisors reminded employers of
the need for honest evaluations (31 CCH EPD para. 33367).
Those employers reluctant to be truthful with

employees

when

by

faced

with

poor

performance

are

advised

counsel to eliminate the entire review process.

legal

Glowing

reviews written just months before a performance discharge
have easily led to a negligence claim.

11
Other states have recognized the good faith and fair
dealing exception in wrongful discharge cases.

In these

cases the courts have ruled that discharge in "bad faith"
is a breach

of

contract.

These

cases

often

include

charges against the employer of intentional or negligent
infliction of emotional distress
Although recently,
Folev v

(Bogas & Vogan, 1989).

in a California Supreme Court case of

Interactive

Data

Corporation

(1985),

where

the

Court held that punitive damages or recovery for pain and
suffering were not available based on breach of implied
contract,

it does

not prevent the employee

from

filing

separate tort claims on defamation, intentional infliction
of emotional distress, or similar claims.
Statement of the Problem
The

problem

investigated

in

determine what c h a n g e s , if any,

this

study

was

to

had taken place with

regard to policies and procedures affecting the status of
employment-at-will

and,

more

specifically,

to

the

termination policies and practices of at-will employees at
M i c h i g a n 's
education,

four-year

state

institutions

of

higher

as perceived by those organizations, over the

ten-year period,

1979

to

1989.

The

related personnel

policies that were

with policies as they existed in 1989.

writer

in effect

compared
in 1979

The focus was on

12
what changes,

if any,

had

occurred

and on addressing

possible reasons for the change(s).
Purpose of the Research
The purpose of the study was to describe,

identify,

and assess what effect the erosion of the employment-atwill doctrine has had on selected personnel policies and
procedures of Michigan's four-year state institutions of
higher

education,

as

perceived

by

those

organizations,

during the period 1979 to 1989.
The dates selected for this study (1979 to 1989) were
chosen because of the Michigan Supreme Court's precedentsetting
Michigan

case

of

Toussaint

(1980),

which

v

Blue

resulted

Cross/Blue

in

a

vastly

Shield

of

different

interpretation of the employment-at-will doctrine.
The

aim

understanding

of

the

of

how

research

was

to

representative

gain

a

better

institutions

in

Michigan have responded to the erosion of the employmentat-will

doctrine

and

to

the

litigation

surrounding

wrongful discharge by examining and interrelating points
of

view

of

the

responsibilities

key

for the

writer has summarized,
specific

managers/executives

changes,

human

resource

who

share

function.

The

in a general manner, some of the

adjustments,

or

new

policies

and

procedures related to discipline and discharge that may

13
have

occurred

or will

occur

in

the

future

due

to

the

changes in the doctrine.
In a broader and practical sense, this research can
provide human resource executives with information about
what managerial activities and decisions are taking place
at other similar
justifying

or

institutions.

reinforcing

It

their

can

assist

behavior

them

in

related

to

employment practices in working with nonunion employees,
as they become aware of policies and procedures used by
executives

in a similar

function.

In

addition,

it

is

believed that such description and analysis will provide
some

insight

into

the

possible

related

effects

on

the

organizations and future trends in employment practices.
Importance of the Study
While the case law has been developing since the late
1970s, up to this point relatively little is known about
the manner in which employers are responding to the court
rulings and to advice from legal advisors on this issue.
There is a need for prompt and continuous feedback on the
effect

the

erosion

decision making,
procedures
employees.
policies

of

the

doctrine

has

business operations,

related

to

the

discipline

had

on

actual

or policies and
and

discharge

of

Immediate prescriptive measures, targets, and
and

procedures

would

seem

vital

to

provide

practical methods of avoiding wrongful discharge suits.

14
Much of the current literature about the erosion of
the employment-at-will
advisors

and

doctrine was

theoreticians

within

written by
the

legal

field.

The

relationship between what is being recommended by them and
what is actually taking place in the organization will be
very

helpful

alternative

in

expanding

methods

discharge issues.

for

the

practitioner's

dealing

with

range

discipline

of
and

In view of this, accurate data relating

to personnel policies and procedures that are being used
are highly desirable.

Such data will aid managers in the

evaluation and adoption of alternative employment policies
and procedures.
This

type

organizations

of

information

for purposes

of

will

be

valuable

long-range

to

planning.

all
It

will provide awareness and impetus to develop an active
comprehens ive
rate

of

and

coordinated

nonthreatening

functions of

procedure

discharge

to

improve

the

suits.

Individual

the organization can then be

analyzed and

restructured where necessary.
Research Questions
In keeping with the purpose of the study, which was
to describe, identify, and assess what effect the changes
in the employment-at-will doctrine have had on personnel
policies

and

procedures,

five

areas

of

personnel

administration were identified by the researcher as having

15
a high probability of change during the period studied.
The

five areas

examined and

formulated

into research

questions were:
1.

Have there been changes

structural organizational

in the

institution's

alignment or administrative

responsibility for disciplinary action and discharge,
especially

in regard to

(a)

final

authority

and

(b)

staffing level and reporting lines?
2.

Have personnel p o l icies, procedures, or rules

been changed during the ten-year period?
3a.

In

what

manner

has

management

activity

or

behavior changed regarding discipline and discharge?
3b.

What are respondents' attitudes toward wrongful

discharge?
4a.
training,

What changes have taken place
and

in what

format

does

in management

management

training

occur?
4b.

From which outside sources or groups does the

institution seek assistance when dealing with this issue?
5.

What is the degree of satisfaction with current

policies and activities regarding termination?
Methodology
The population was defined as executive-level human
resource administrators at Michigan's
institutions

of

higher

education.

The

four-year state
executive-level

16
administrators included the President or Vice-President,
Director

of

Personnel

Employee Relations,

or

Human

Resources, Director

and University Attorney.

of

In case of

different titles, individuals with primary responsibility
of nonunion staff were included in the study.
Information was gathered through the administration
of a written questionnaire.
to

The instrument was designed

(a) determine how many employees the institution had

who fit the category of at-will employees,

(b) what types

of personnel

in place that

could

policies

affect

the

and practices were

status

of

at-will

employees,

(c)

determine whether personnel policies and practices in 1979
were different from those that were in place in 1989;

(d)

assess perceptions about related management activities or
organizational changes that had changed over the ten-year
period,
about

and
the

(e)

assess respondents'

employment-at-will

views

and

doctrine

attitudes

and

issues

surrounding the doctrine.
To

address the

employees,
four
cause

the

concern

researcher

categories:

(a)

employees

with

of a definition

placed

employees

combination
no

specifying the relationship,

clear
(b)

of

of at-will
into

at-will

policy

one

and

of

juct

or

provision

combination

of at-will

and just cause employees with a very clear distinction by
way of a policy statement as to which employees are atwill,

(c) just cause employees, and (d) at-will employees.

17

The categorization proved useful in understanding the
variation of responses in further research questions.
The

instrument

was

pilot

tested

with

two

human

resource executives from institutions of higher education
in Michigan,

but not with any of those included in the

study itself.
pilot

Changes were made based on comments of the

group, and the

instrument was revised.

Research

data were then collected during structured personal visits
to

individual

institutions.

The

completed

instruments

were coded by the researcher to retain anonymity of the
r e spondents.

The responses were then

analyzed using

descriptive statistics in most instances.
Although no hypotheses were developed for this study,
statistical tests were performed on two of the questions
to determine whether there was a statistically significant
difference in the variables between 1979 and 1989.
specifically,

responses

to Research

Question

More

la were

measured using the chi-square statistical technique.

This

allowed the researcher to determine whether changes in the
institutions'
administrative

structural

organizational

responsibility

for

alignment

disciplinary

or
and

discharge action had changed due to chance or due to a
theoretically

expected

distribution.

Responses

to

Research Question 2 were measured using a standard t-test.

18
This measure was used to compare the changes in personnel
policies and procedures from 1979 to 1989.
Assumptions of the Study
In
the

investigating this problem,

following assumptions,

the

which,

researcher made

if violated,

could

influence the findings.
1.

Data were gathered through the survey technique.

Survey research is considered an accepted methodology in
social science fields (Ostroth, 1979).
2.
had

It was assumed that the administrators selected

ample

information

and

experience

to

provide

the

responses to the questions.
3.

It was assumed that the formalized instrument for

collection of data was sufficient to describe,

identify,

and assess the effect of the changes in the employment-atwill

doctrine

on

selected

personnel

policies

and

procedures and provided results that can be replicated.
Limitations of the Study
The scope and

interpretation

of this

study

were

limited by the following:
1.

The findings in this study were specific to four-

year state institutions of higher education in Michigan.
The degree to which these findings can be generalized to
other

business

questionable.

and

industry

Furthermore, the

within

the

degree

to

state
which

is

these

19

findings

can

be

institutions

generalized

in

other

to

states

business,
is

industry,

influenced

by

or
the

corresponding state statutes and judicial decisions made
on employment-at-will

in those

states.

Although the

findings may reflect trends in the profession, the degree
of generalization is limited.
2.

This

study

relationship,

if

employment-at-will

was

designed

between

any,

the

and

doctrine

to

the

assess

changes

personnel

in

the

policies,

p r a c t i c e s , and procedures for nonunion, noncontractual
employees.

While this

investigator recognizes that the

field of human resources encompasses more than policies,
p r a c t i c e s , and procedures for nonunion, noncontractual
employees, an assessment of these was the central focus.
3.

A comprehensive study would include the effects

of collective

bargaining

on

decision

and

making

the

philosophy and values of institutional decision makers as
well

as

the

history

institutions.

of

policy

changes

made

by

the

Information of this nature was beyond the

scope and magnitude of this study.
4.
review

Where
by

the

written

policies

investigator,

were

not

responses

available
in

this

for

study

reflect only the perceptions of the individuals surveyed.
The

cumulative

data

from

a

single

executive

interpreted as the institutional decision,

cannot

be

policy,

or

20
direction.
of the
among

The amount of experience, the knowledge level

subject matter,
the

and

respondents

commitment to change varied

and

may

have

affected

their

responses.
Definition of Terms
Personnel

policies

and

procedures.

Written

or

unwritten statements of action that the employer uses in
the day-to-day operation of the business as it relates to
employee personnel issues.
Recent
state

court

circuit

decisions.

c o u r t s , courts

Court

decisions,

made

of appeals, and

at

supreme

courts over the last 15 years, with a particular focus on
the decisions made

in Michigan courts

since the

1980

Toussaint v Blue Cross/Blue Shield case.
Wrongful

discharge.

The

act

of

terminating

an

employee that is determined to be a breach of an implied
employment contract or employment discrimination based on
one or more common laws or statutory exceptions

to the

emp1oyment-at-will doctrine.
Organization of Subsequent Chapters
Chapter I included the background and context of the
study.

It included an introduction to the topic, summary

of the

related literature and rationale

statement

of the problem,

for the

and purpose of the

The research questions and definitions were

study,

research.

listed,

and

21

the

assumptions

and

limitations

of

the

study

were

presented.
A review of the literature explaining the concept of
the

employment-at-will

doctrine

and

its

standing

employment relations today appears in Chapter II.
included

is a detailed

review

of the

in

Also

literature

and

research about the statutory protections and judicial
erosion affecting the doctrine.
The design of the study, including the description of
the

study,

collecting

design
the

of

data,

the
and

instrument, the
procedures

of

method

data

of

analysis,

appears in Chapter III.
Chapter IV contains the presentation and analysis of
the data.
Chapter V
implications
This

chapter

contains

a

summary

and conclusions drawn
also

includes

of

the

findings

from these

suggested

areas

and

findings.

for

research and additional inferences and speculations.

future

CHAPTER II
REVIEW OF THE RELATED LITERATURE

To understand the common law doctrine of employmentat-will , it

is

necessary

to

review

historical developments of the rule.

the

origins

and

Using review-based

research, primarily from Bureau of National Affairs (BNA),
Commerce Clearing House
America, Inc.

(CCH), and Research Institute of

(RIA), this chapter will provide an overview

of state and federal legislative developments as well as
judicial developments that have had a significant effect
on how the doctrine is interpreted today.
then summarized,

The chapter is

pointing out some of the challenges to

the traditional common law doctrine of employment-at-will.
The Concent of the Emp1ovment-at-Will Doctrine
The American

common

law doctrine

will holds that employment
terminable
employee.

at

the

will

Either party

relationship without
cause.

of

of employment-at-

for an indefinite term
either

the

can terminate

reason,

notice,

employer

or

is
the

the employment
explanation,

or

This common law doctrine first appeared as a rule

of evidence in Horace Wood's Treatise on the Law of Master

22

23
and

Servant

134,

"Wood's rule."

at 272

(1877),

and

is referred to

as

Wood's principle indicates that general or

indefinite hiring is "at will" unless it can be rebutted
by other evidence (Wood, 1877).

For example, the employer

and employee could contract for a specific duration (e.g.,
one year), have no contract at all,

or could agree that

the employee could be discharged for cause only.
This

American

common

law

largely

fourteenth-century English common

resembles

law except that

the
under

the English common law indefinite employment was presumed
to be

for

a

one-year

period,

termination

during

the

(Blackstone,

1771) .

The

re interpreted

which was

term

for

English

renewable

just

common

cause

law

was

with
only
later

in the nineteenth century and replaced by

the rule that employment was considered to be terminable
by

either

party,

at

will,

with

or

without

cause

upon

reasonable advance notice during which the employee would
receive severance pay (Bath, 1967).
Although
common

Wood's

law and

rule

is

a

departure

early American cases,

from

English

the United States

adopted the rule in 1884, in the case Pavne v Western &
Atl. R.R. C o . . 81 Tenn 507, 519

(1884) .

The court ruled

that employers could dismiss employees at will for "good
cause, for no cause or even for a morally wrong cause"
RIA, EP para. 82,681).
further

(8

The employment-at-will rule became

institutionalized

in Martin

v

New

York

Life

24

Insurance

Co. . 148 NY

117,

42 NE

416

(1895) , when

court held that an annual salary term of an

the

employment

contract did not result in a presumption that employment
was for a one-year contract.
Adair v United
22,681 of RIA.

States

is discussed

in paragraph

In this case, the Supreme Court held "the

right of the employee to quit the service of the employer,
for whatever
employer,

reason,

is

for whatever

the

same

reason,

as

the

to

right

dispense

services of such employee," 208 US 161, 174-175,
277, 280, 52 L Ed 2d 436 (1907).

Court

concluded

employer's

(1915) .

that

the

the

with

the

28 S Ct

The court reaffirmed the

employer's right to hire and fire at will
Kansas. 236 US 1 10

of

in Coppage v

In this case,
Constitution

the Supreme

protected

freedom to contract whatever terms

an

it wished

with its employees.
It was
employers

clear,

became

based
bound

on

these

only

on

obligated themselves to perform.
parties

were

not held

under

early

those

c a s e s , that

promises

they

Courts presumed that the

contract

for

any

definite

duration and the employer did not have the burden of proof
to establish the intent that the contract was

for

less

at

the

than one year.
There
foundation

are

other

established

principles

of the employment-at-will

rule.

One

such

25
principle

is

that

consideration.

of

mutuality

of

obligation

and

The principle of mutuality of obligation

requires that both parties to a contact be legally bound
to

perform

Contracts,

their
152,

promises

1950

(A.

& Supp.

Corbin,

1971) .

1

Corbin

However,

on

in

an

employment contract the employee was effectively free to
quit at any time with no notice.

The employer could sue

only for actual losses, e.g., finding a replacement,

and

could not enforce the contract because it would constitute
a

violation

of

the

Thirteenth

Amendment,

prohibition against involuntary servitude,
Gossard Co. v Crosby. 132

Iowa 155,

as

i.e.,
in

the

H.

109 NW 483

W.

(1906) .

The courts therefore concluded that if the employee was
not obligated to provide services, the employer should not
be obligated to continue
principle
employee

of mutuality
would

provide

to provide

employment.

of consideration
labor

in

The

is where

consideration

of

the
pay.

This principle provides that if the employee is no longer
employed and no longer gives consideration for his wage,
the employer is not compelled to pay wages for a definite
period of time without receipt of services

(A. Corbin,

5

Corbin on Contracts, 1181, 1951 & Supp 1971).
In the case Huhtala v Travelers
Mich

118, 133,

257

NW2d

640,

647

Insurance Co., 401
(1977) , the

court

enforced other promises in the employment contract based
on theories

of

reliance

or

promissory

estoppel.

This

26

theory protects the promise where one party relies on a
promise made by the other party even where there is no
mutual promise made that would give rise to a contractual
obligation.

The

promise by the
employee

and

employee's
reliance

court

looks

employer,
results

interests,
upon

the

for a

which

in

clear

and

definite

induces reliance by the

action

detrimental

to

but which occurred because
promise

(Restatement

the

of the

[Second]

of

Contracts, 90, 1981).
The elements of a promissory estoppel action require
that the

employer reasonably expects the promise

to be

relied upon by the employee to the employee's detriment.
The question that the court
employee's

acts

addresses

of detrimental

is whether the

reliance were

reasonable

and were induced by a clear and definite promise by the
employer.

In a jury trial, the extent of the detriment

suffered

by

the

employee

determines

the

likelihood

of

whether the employer's promise will be viewed as a breach
of promise versus the elements required in a promissory
estoppel

action.

practices

of

the

A

jury

employer

may

conclude that

induced

acts

of

customary
employee

reliance, rendering enforceable the employer's promise of
continued
discharge.

employment

in the

absence

of

good

cause

for

27
Under

this

theory,

the

employee

who

resigns

a

position to accept another offer has the right to enforce
the promise of employment because of his
reliance.

Similarly,

detrimental

when an employer asserts that the

employee has a lifetime job,

and the employee relies on

this presumed state of facts to his detriment, then the
employer may be estopped from denying the truth
statements.

The court cases addressing this

of his

issue were

American Electrical Steel Co. v Searoace. 399 Mich
249 NW2d 70

(1976)

306,

and Detroit Savinas Bank v Loveland.

168 Mich 163, 172, 130 NW 678, 682 (1911), where the court
stated,

"If one's conduct induces another to believe

in

the existence of certain facts, and the other acts thereon
to his prejudice, the former is estopped to deny that the
state of facts does in truth exist."
The Doctrine Today
It is important to note that the traditional rule of
employment-at-will
modified

by

statute

is
or

still

vital

decisional

today.
law,

the

Except
common

as
law

doctrine continues to control the resolution of all cases
of alleged unlawful employment action and is still very
much alive.
It is estimated that there are some 50 to 75 million
workers

in the United Sates,

which represents nearly

three-quarters of the American workforce, who do not fall

28
under the protection of laws designed to protect them from
arbitrary dismissal and are therefore employed at the will
of the employer
other

words,

relationship

(Bureau of National Affairs,
these

the

are

any

time, and for any reason that is not contrary to law.

In

or

free

without

to

a

at

with

is

to

the

relationship

employer

vulnerable

In

end

employment

where

workers

1982).

cause,

one study, a conservative estimate of the annual discharge
rate

for at-will

employees

(most

of whom

are

in the

private sector) with more than six months of service would
be approximately 1.4 million in a given year.

These are

employees with no recourse to grievance and

arbitration

procedures (Steiber & Murray, 1983).
The National
that

the

employer

Labor

Relations

bargain

Act

collectively

representing a majority of the workers
159(a), 1982).

of

1935

with

requires

the

(29 U.S.C.

union

158(d),

In addition to that, there are 32 states,

including Michigan, that encourage bargaining and provide
protections
bargaining

under
for

statutorily

public

.201-.216, 1979).

employees

authorized
(Mich

Comp.

collective
Laws,

423

By way of the bargaining process, it is

highly likely that the agreement will contain a provision
protecting

the

job

provisions

generally

security
outline

of

its

members.

policies

and

These

procedures

relating to discharge and discipline only for good cause.
The grievance procedures which usually end in arbitration

29

provide

an

enforcement

requirement.

Over

procedure

80%

of

the

agreements have such provisions

for

the

good-cause

collective

bargaining

1979).

(Peck,

According

to RIA's Labor Relations. Volume 13, since the collective
bargaining agreement supersedes an individual employment
contact, a unionized
court

under

a

employment.
(1944) .

employee may not assert rights

theory

J.I.

of

an

individual

contract

Case Co. v NLRB. 321 US

332,

in
of

334-35

The unionized worker also must normally exhaust

the grievance procedure they are protected under before
initiating

litigation

for

breach

of

contract.

Republic

Steel Corp. v Maddox. 379 US 650, 652-63 (1965).

However,

in a violation of public policy case, the Illinois Supreme
Court

allowed

a union

alleged discharge
claim,

for

worker's
filing

tort

challenge

a worker's

in

an

compensation

without first exhausting the grievance procedures

in the union contract.

Midaett v Sackett-Chicago. Inc.,

1984, 111, 117 BNA LRRM 2807.
Public

sector

employees

covered

under

the

Civil

Service Reform Act of 1978, which protects civil service
employees at the federal level, are provided a procedure
for suspension and discharge (5 U.S.C., 7501-7533, 1982).
The

employee

must

be

given

advance

written

notice

and

reason for the suspension and allowed the opportunity to
respond, with

representation

from

any

attorney,

if

so

30
desired.

Additionally,

reason for any discharge
local public employees
protections.
local

the employee is provided with a
(Chaturvedi,
often

enjoy

1968).

State and

similar

statutory

It is estimated that over 50% of state and

government

employees

are covered by

some

form of

been

sparse

just cause protection (Chaturvedi, 1968).
Statutory Protections
Although

at

this

time

there

has

legislative modification of the doctrine of employment-atwill because of employee challenges, there have been over
the years
federal

legislative and judicial developments
and

limitations

state
on

levels,

the

which

e m ployer's

employees

on particular

Nonunion,

noncontract

areas

workers

of
are

have

freedom

led
to

activity
protected

on both
to

some

discharge

and

concern.

in part

by

these statutory restrictions on the employer's ability to
discharge.
Federal Level
There are several major federal statutory protections
of job security aimed at protecting employee

rights.

Among these is Title VII of the Civil Rights Act of 1964
(42 U.S.C., 2000e to 2000e-l7, 1982), which prohibits any
discharge based

on

discrimination with

regard

to

race,

color, religion, sex, or national origin and prohibits any
reprisal to an individual for exercising Title VII rights.

31

The Age

Discrimination

in Employment Act

of

1967

(sec.

4 ( a ) , 29 U . S . C . sec. 6 2 3 ( a ) , 1982) protects the worker who
is over

40 years

of age

from discriminatory discharge.

The Vietnam Era Veterans Readjustment Assistance Act

U.S.

(38

C . , 2021(a), 1982) protects the returning veterans'

rights to return to

their

former

being discharged for one year.
tion Act Of 1973

504,

(sec.

jobs

without

29 U.S.C.

Safety and Health Act of 1970
6 6 0 (c)(1),

1982)

sec.

(sec.

discharge

1976

&

11(c)(1), 29 U.S.C.

protects those exercising their

Labor Relations Act of 1935
1976)

794,

The Occupational

rights to a safe workplace for discharge.

660(c),

of

The Vocational Rehabilita­

Supp. V, 1981) protects the handicapped.

sec.

fear

protects

for engaging

(sec.

The National

8(a) (3) , 29 U.S.C.
from

employees
in concerted

retaliatory

activities.

The

Employee Retirement Income Security Act of 1974 (29 U.S.C.
1001-1461,
benefits.

U.S.C.

1982)

protects

the

rights

of

employment

The Fair Labor Standards Act (sec. 1 5 (a)(3), 29

sec.

215(a)(3),

1982 & Supp.

Ill,

1985)

protects

those exercising rights of minimum wage and overtime from
retaliatory discharge.
(sec.

The Consumer Credit Protection Act

304 (a) , 15 U.S.C.

sec.

1674 (a) , 1976)

protects

discharge of an employee whose wages are garnished for an
indebtedness.

These various federal statutes and others

protect workers against retribution for filing claims or

32
complaints,

participating

in proceedings,

or

exercising

their rights.
State Level
There are also state laws restricting the right of an
employer to discharge
employers

at will,

such as

laws

forbidding

from discharging employees who exercise their

right to vote, file for workers 1 compensation, serve as a
juror,

engage in political activities,

refuse to take a

lie-detector test, or refuse to commit perjury.
In Michigan,

under the Elliott-Larsen

Civil

Rights

Act of 1977 (Mich. Comp. Laws, 37.2101 to 37.2804, 1979),
employees

or potential

employees

are

protected

from

discharge or discrimination for reasons related to their
religion, race, color, national origin, sex, age, marital
status,
Safety

height,
and

408.1001

or

Health

to

weight.
Act

The

Michigan

(MI-OSHA)

408.1094,

1979)

(Mich.

prohibits

Occupational
Comp.

Laws,

retaliatory

discharge for refusal to work in an unsafe environment.
Michigan's
Laws,

Handicappers' Civil

37.1101 to 37.1507,

Rights

1979)

Act

(Mich.

Comp.

prohibits discrimination

against a handicapped employee with a handicap unrelated
to the ability to perform the duties of the job.
The brief

review

of

federal

and

protections provided above reflects
movement

that

has

taken

place

in

state

statutory

only part
the

United

of the
States

33
providing

job

security

for

at-will

employees.

Some

authors have contended that the growth in these statutory
constraints
challenges
Affairs,

parallels
to

at-will

1984),

a

trend

to

terminations

while

others

uphold

common

(Bureau

of

National

urged

drastic

have

law

legislative reform to further limit discharge discretion
of employers.

Another

important,

and perhaps

the more

significant, movement reshaping social policy in the area
of job security over the last decade has been the judicial
developments that have begun to change the doctrine more
rapidly than legislative developments.
Judicial Developments
The

literature

pertaining

to

the

status

of

the

employment-at-will doctrine takes different approaches and
can

be

confu s i n g .

employers

have

authors

Some

too

little

have

discretion

implied
on

that

termination

because the doctrine has been so terribly eroded by the
courts.

They have claimed that the judicial erosion over

the last two decades has "threatened the continued legal
validity

of

fundamentally
relationship”

the

employment-at-will

altered
(Murg

the

traditional

& Scharman,

rule

and

[has]

employer-employee

1982).

Others

have

suggested that the court rulings have had little effect
and that at-will employees

are

left with very

protection against unjust terminations,

and,

little

as such,

it

34
is necessary to legislate a "cause" standard for at-will
employees at both the federal and state levels

(Blades,

1967; Peck, 1979; St. Antoine, 1981; Steiber, 1980).
The
judicial

following

review-based

developments

research

discussing

in the at-will arena,

provides

an

orderly review of some of the major court cases in the
United States that have addressed the issue of employmentat-will, with

a particular emphasis on cases that have

been heard by Michigan

courts.

employment-at-will

from state to state.

reason,

and

decisions

on

For that

it is important that businesses be aware of the

laws and decisions
while

vary

Laws

also having

in the state in which they
knowledge

on ivhat case

decided upon in other states.

law

operate,
is

being

A review of case law will

reveal that courts will frequently change their minds on a
particular issue after looking at decisions made by courts
in other states.
Although

several

state

courts

have

held

that

an

employee has no cause of action absent a specific statute
providing for just cause discharge,
years

a

growing

number

of

during the past

courts

have

few

recognized

exceptions to the employment-at-will doctrine on various
grounds.

The purpose

provide protection

of

these

exceptions

has

been

for employees who are discharged

to
for

bad cause, or without good cause, popularly referred to as
wrongful

discharge.

Some very important decisions have

35

provided a cause of action for breach of contract in what
had been construed as an at-will employment relationship.
The

three

judicial

theories

most

commonly

advanced

in

support of wrongful discharge suits have been on claims of
(a) violation of public policy,

(b) the existence of an

implied contract, and (c) the covenant of good faith and
fair dealing.
theories

or

Employees may allege a combination

causes

of action depending

on the

of

elements

that must be proved under a theory and/or the amount of
damages or type of relief available.
Violation of Public
Policy Exceptions
There are numerous court cases that have been settled
in

favor

against

of the
employees

employee where
for

the

exercising

employer

their

refusing to act in an unlawful manner.

civil

retaliated
right

or

Terminating

an

employee for this reason has been found by the courts to
be a violation of public policy.

They have been brought

either as tort or contract actions under which an employee
can sue if his discharge violates public policy.

In cases

where the court has held that the plaintiff can sue not
only

in

contract

but

also

in

t o r t , the

employee

is

entitled to pursue compensatory tort and punitive damages.
Tamenv v Atlantic Richfield Co.. 164 Cal Rptr 839, Cal Sup
Ct

(1980) ,

115

BN A

LRRM

3119;

Pierce

v

Ortho

36
Pharmaceutical Corp. . 84 NJ 58,

417 A2d 505

(1980),

115

BNA LRRM 3044.
Challenges

to

the

at-will

rule

grounded

in public

policy have been the most successful in state courts.
the time of this

research paper,

states, including Michigan,

At

there are at least 33

in which

courts

have

ruled

that there are "public policy" exceptions to the common
law rule

(Hames, 1988).

In other words, the employer is

not free to discharge an employee at-will when the reason
for

the

is

discharge

an

intention

employer to

contravene

forth

constitutional

in

the public

on

the

policy

part

of

the

generally

set

provisions,

legislative

e na c t m e n t s , administrative rules and regulations, and
judicial decisions.
The
public

leading

policy

case

in the United

exception was

States

Peterman v

involving

a

International

Brotherhood of Teamsters. Local 396. 174 Cal App 2d 184,
344 P2d 25

(1959) , 44 BNA LRRM 2968.

In this case,

a

union business ager t was terminated for refusing to give
false testimony vt a legislative hearing.

The

court

determined that the employer's actions were tortuous.
There have been many

other court cases

since that

time which have adopted a cause of action under the public
policy

exception

for

employees who were

discharged

for

doing what the law or public policy specifically required
or,

conversely,

for

refusing

to

do

what

the

law

37

proscribed.

Public policy exceptions have included cases

of "whistle-blowing," Palmateer v International Harvester
Co.. 85 111 2d 124, 421 NE, 8 RIA, para. 22,698; refusing
to take a polygraph test, serving on a jury, refusing to
falsify reports required to be filed with a state agency,
Trombetta v Detroit. Toledo

& Ironton Railroad

Co., 81

Mich. App. 489, 265 NW2d 385 (1978) ,» or filing a worker's
compensation claim,
App 185,

Goins v Ford Motor Company. 131 Mich

347 NW2d 184

(1983).

The South Dakota Supreme

Court in Johnson v Kreiser's Inc. (SD Sup Ct., 1988) , 8
RIA,

para.

39,705,

ruled

that

it was

a

"breach

of

an

implied provision that the employer will not terminate an
employee for refusing to perform a criminal act."
Michigan
Sventko

v

adopted

Kroger

the

Co. „ 69

public
Mich

(1976) , 115 BNA LRRM 4613.

policy
644,

App

In this

exception
245

case the

NW2d

in
151

Court

of

Appeals ruled that the employee may not be discharged in
retaliation for filing a w o r k e r s ' compensation c l a i m .
Numerous

other

cases

in Michigan

since

Sventko

have

clarified the parameters of the public policy exception.
In Suchodolski v Michigan Consolidated Gas Co., 412 Mich
692,

316 NW2d 710

(1982)

held

that

policy

public

8 RIA para.
was

22,704,

violated

only

the court
when

the

discharge contravened public policy expressed in a clearly
mandated and settled public policy,

but not where

an

38
employee

was

discharged

for

accounting pract i c e s , as

reporting

in this

questionable

case.

The

court's

decision in Adler v American Standards Corporation. Md App
4,

32

A2d

(1981) , 115

464

BNA

LRRM

4130,

equally restrictive view of requirements
action.

reflects

an

of the tort

In this case the court found that the plaintiff

failed to recite specifically which statute the employer
violated

to constitute

Other cases,
Mich

App

a violation

of public p o l i c y .

such as Schwartz v Michigan Sugar C o . . 106
308

471,

NW2d

459

and

(1981)

Industries. Inc. . Ill Mich App 580,

Ohlsen

314 NW2d 699

v

DST

(1981) ,

place additional limitations on public policy tort action,
including the requirement to exhaust statutory remedies in
the legislation that is the source of the public policy.
In some instances, the statutory remedies may be the only
remedy

available

to

the

employee

in

cases

where

the

statute has expressed rights allowable.
In

a

recent

Corporation. 174

case,

Cal App

Folev
3d 282

v

Interactive

(1985) , the

Data

California

Supreme Court ruled that for a breach of public policy to
occur, the public policy

must be "founded upon a statute

enacted by the legislature."

In this case, the reporting

of

management

information

by

public interest.
that

public

Foley

to

was

not

in

the

This case supports the contention made

policy

exception

is

interpreted

"very

narrowly" by the courts and yet clearly indicates that the

39

courts recognize wrongful termination case law upholding
public policy exceptions to dismissals

(Shepard & Moran,

1982).
Equally significant in the Foley case was that the
court limited damages to "contract-type" remedies of back
pay

and

lost

benefits

but

not

tort

damages.

This

precedented ruling will likely limit monetary damages that
employees may receive in wrongful discharge suits (Lotito
& Caples, 1988).
These
states,

rulings

court

including

Michigan,

would

suggest

discharging

that

in

many

an employee

for

activity such as whistle-blowing or filing claims against
the employer or refusing to act in a manner contrary to
public

policy

exception.

is

prohibited

the

public

policy

The courts view this as action that "protects"

society and therefore
clear,

by

based

on current

furthers
case

public p o l i c y .

law,

that

an

It is

employee

in

Michigan must identify a specific legislative enactment or
policy statement upon which to base a claim for breach of
public policy.

Having met that requirement,

it can be

concluded that this exception, over the years, appears to
have provided at-will employees with some protection from
unjust dismissal.

40
Existence of an Implied Contract
As noted earlier, tort action for wrongful discharge
where

the

matter

employee

engaged

in

public

policy

is

of

activity
a

protected

departure

as

from

a

the

traditional employment-at-will rule, which gave employers
the right to discharge anyone at any time for any or no
reason.
an

The wrongful discharge litigation arising out of

implied

contract had

resulted

in an

even

greater

departure.
Employment-at-will has been an implied term for the
employment

relationship

except

when

the

employer

explicitly contracts to hire the employee for a specified
duration,

or where the employee

protections

afforded

by

is subject

a bargaining

to

contract

specific
or

similar protections, i.e., tenure or civil service.

other
It is

the defense that employers use in exercising their right
to terminate the employment relationship.
in

contract

expanded
honor

law

in

governing

recent

promises

of

years

The exceptions

employment-at-will
to

continued

requiring

the

employment

have

been

employer
made

by

employer which traditionally were regarded as having

to
the
no

legal effect.
There have been several leading cases in the United
States involving discharge of public sector employees.

A

review of these cases helps to understand the principles
that

were

used

to

protect

employees

from

bad-cause

41

discharge

and to provide

a theoretical

framework as to

what factors the courts consider when hearing cases

for

at-will employees.
Over the years, the Supreme Court has decided several
cases in favor of providing certain procedural safeguards
of job security for public

sector e mployees. Perrv v

Sinderman. 408 US 593, 596-603 (1972); Board of Regents v
Roth. 408 US

564,

573-78

Education. 391 US 563,
School
(1977).

Pist. Bd.

of

(1972) ; Pickering

569-73
Ed.

Board

of

(1968); Mount Healthy Citv
Dovle. 429

v

v

US

274,

284-87

The Supreme Court held in Perrv v Sinderman that

the discharge of a college professor may have violated his
due process rights guaranteed by the Fourteenth Amendment.
These rights were found by the court to be based on a de
facto tenure system that existed at the university.

The

faculty handbook guaranteed continued employment as long
as services were satisfactory.
this case,

According to the court in

if the employee could establish a legitimate

expectancy that he could not be discharged without just
cause,

he

had

the

right

to

a

hearing

prior

to

discharge to determine whether just cause was present.
a more recent case, Marwil v Baker. 499 F Supp

560

the
In
(ED

Mich 1980) , 8 RIA para. 22,798, the court ruled in favor
of the employee by upholding a cause of action for lack of
tenure review based on the rules, policy statements, and

42
customs of the university.
whether

the

continued

employee

has

employment.

The critical
a

This

legitimate

question

is

expectancy

to

issue will be

discussed

in

length as this study reviews the implied contract cases in
the private sector.
There have been several cases testing whether public
employees are entitled to constitutional due process when
they

are

terminated.

Case

law

determines

employees do not have •'property" interest
within the meaning of the

that

public

in their jobs

Fourteenth Amendment

as

Lawson v Sheriff of Tippecanoe County. 725 F2d 1136,

in
115

BNA LRRM 2663 and Asbill v Housing Authority of Choctaw
Nation. 726 F2d 1499, 115 BNA LRRM 3559.
Current
public

case

law

employment

constitutional
security.
indicates

is that

is

or

at-will

other

if there
unless

written

is

no

there

statute,
is

expression

some

of

job

For example, Connecticut enacted a statute that
the

public

employer will

be

held

liable

for

discharging any public employee who exercises his federal
First Amendment rights or similar state rights (Public Act
83-578, Laws 1983 effective July 11, 1983).
At
least

the

time

32 states,

of this

research

paper,

including Michigan,

courts

have

in

at

recognized

implied contract exceptions by ruling that such documents
as company handbooks, manuals, benefit brochures, or even
employment interviews, where the interviewer refers to job

43

security,

may constitute

"implied contracts"

or

legally

binding contractual obligations, and that specific actions
or statements may limit the employer's right to terminate
in the absence of good cause (Bureau of National Affairs,
1982).
In specific written contracts of employment,
findings

of

breach

straightforward.
promises

of

contract

by

either

the

party

are

The courts have traditionally enforced

contained

in

writing.

However,

where

the

contractual agreement is said to be oral or implied, such
findings become more difficult.
continued

employment

may

These representations of

be made

to

employees

at

an

employment interview or during the employee's t e n u r e .
Some

courts

have

determined

that

these

statements

and

promises are inducements for acceptance of employment and
should be enforced.
The

exceptions

thought here
supplies

the

are

in

that

contract
through

necessary

law

in

continued

applying
employment,

"consideration"

benefits to the employees have been

the

that

the

"bargained for"

and

become part of an implied contract.

and

it

The employment-at-

will rule has been expanded based on grounds of an implied
contract

where

it

is

found

that

in

the

contract

of

employment an expressed or implied condition exists that
the

employee can only

be

discharged with

good

or

just

44
cause.

Courts have ruled that promises

of continued

employment that previously had been viewed as nonbinding
are, in fact, contractual provisions requiring good cause
for discharge.
relying

less

doctrines

In recent court rulings,

on traditional

of

reliance,

contract

decisions

rules

estoppel,

are

and more

and

on

additional

consideration to determine the intent of the parties.
Exceptions
also

come

to

from

considerations

the
the

in

employment-at-will
court

recognizing

a

making

doctrine

contract

have

additional

for

continued

employment and without termination except for good cause.
In a California case, Rabaao-Alvarez v Dart Indus. Inc.,
55 Cal App

3d 91,

127

Cal

Rptr

225

(1976) , the

upheld an award of damages to the plaintiff,

explaining

that

91the parties agreed,

whether expressed or

that

the

be

employee

could

terminated

cause.99 In another California case,
factors

such

as

length

of

court

implied,

only

for

good

the court held that

employment,

p r o motions,

commendations, and oral promises of continued employment
resulted in a promise of cause for discharge.
See/s

Candies. 116

(1981),

8

RIA

para.

implied

promise

of

Cal

App

3d

22,704,
employment

329,
the
had

171
court
been

In Pucrh v

Cal

Rptr

held
made

that
to

927
an
the

individual, noting the employee's outstanding work history
with

several

commendations

ruled that this

and

promotions.

The

implied promise would not be

court

revoked

45

without documented good cause.
Foodroaker.

In another case, Hackett v

Inc.. 69 Mich App 591,

245 NW2d

140

(1976) ,

the court held a promise was enforceable when the employee
moved

his

family

from

California

reliance upon the employer's

to

Michigan

with

the

promise of being made

a

manager and was later denied the position because he filed
an anti-trust action against the employer.
reflect the courts'

These cases

recognition of additional considera­

tions as enforcing promises made by employers of continued
employment.
The New York Court of Appeals held in a 1981
that there was sufficient evidence of a contract

case
and

a

breach of the contract to sustain a cause for action when
the employee signed an application stating that employment
would be subject to the company's handbook, which stated
that dismissal would occur only for "just and sufficient
cause." Weiner v McGraw-Hill Inc. . 457 NY2d 193 New York
(1982), 118 BNA LRRM 2689.
In the

leading

implied

contract

Toussaint

case,

Blue Cross & Blue Shield of Michigan. 408 Mich 579,
NW2d 880
Supreme

(1980),
Court

doctrine where

reh denied. 409 Mich

recognized

exceptions

an

alleged

employee

1101
to

that

v

292

(1980) , the
the

the

at-will

employer's

agent indicated that he "could only be fired for cause."
The employee

also

used

for evidence

of a just

cause

46
employment
manual,

relationship

the

employer's

personnel

policy

which provided nonprobationary employees with

protection of discharge "for just cause."

a

The jury found

the discharge to be a breach of the employment contract.
The court held that the employer's oral promises and
written

statements

contained

in

an

employee

policy

handbook created a reasonable expectation that they could
only be discharged for good or just cause.

In a companion

case, the Supreme Court ruled in Eblincr v Masco Corp., 79
Mich App 531, 261 NW2d 74 (1977) , aff'd. 408 Mich 579, 292
NW2d 880 (1980), that an employer who has a written policy
or has made an oral statement that an employee would not
be

discharged

policy.
an

without

just

cause

must

adhere

to

the

Again, the jury found that the employer breached

employment

contract.

In

an

attempt

to

enforce

the

intentions, the courts gave preference to the substance of
the expressed promise of continued employment, rather than
the form of an at-will contract.
In a later case, Wiskotoni v Michigan National BankWest. 716 F2d 378 (6th Cir. 1983), 114 BNA LRRM 2596, the
federal court ruled that since the employer's personnel
policy

stated

that

probationary

employees

discharged for "any reason and without

could

cause," it

be
is

implied that nonprobationary employees are permanent and
can

only

be

discharged

for

just

cause.

The

Supreme Court of Appeals in Struble v Lacks

Michigan

Industries.

47

Ins., 157 Mich App 169,

403 NW2d 71

(1986) , agreed that

the employee could reasonably rely on the employer listing
of

rules

and

reasons

for

discipline,

a

progressive

discipline system, and seniority provisions to establish a
just cause employment relationship.
According

to

the

Toussaint

decisions since that time,

theory

and

promises can give rise to an

enforceable right of good cause for discharge
upon by the employee.
this

may

result

in

similar

if relied

Some authors have suggested that
job

security

for

nonunionized

employees, which traditionally has been reserved for the
unionized sector in this country.

If, as was determined

in the Toussaint case, these breach-of-contract cases are
for

an

unskilled

jury

to

determine,

the

situation

may

exist where nonunionized employees are enjoying as much or
more

protection than

unionized

workers

(St.

Antoine,

1981).
Covenant of Good Faith
and Fair Dealing
Seven states, led by California, have recognized the
good faith and fair dealing exception to the employmentat-will doctrine.

The courts in these states have found

that a discharge not

founded in good

faith violates

an

implied contract of good faith and fair dealing held to
state a cause of action in both contract and tort.

In

48
general,
faith

employers

if the

may

not

discharge

discharge

deprives

the

employees

in

bad

employee

of

the

benefits of their agreement (Hames, 1988).

Some wrongful

discharge complaints have involved damages for mental or
emotional

distress,

loss

exemplary damages.

of professional

reputation,

The courts that have adopted "tort"

theories of wrongful or abusive discharge have ruled
favor of compensatory and/or punitive damages
terminated

or

employee.

These

implied

covenant

to

in
the

claims

as

tort actions have potentially enormous recovery.
The courts' rationale in most of these cases is the
protection
through

of

the

employee
course

benefits

of

that

employment.

have
Some

been

earned

courts

have

inferred that under certain instances there is an implied
good faith requirement when there is an attempt to deprive
an employee of vested benefits.

In a California

case,

Cleary v American Airlines. Inc.. Ill Cal App 3d 443, 168
Cal Rptr 722

(1980) , 115 BNA LRRM 3030,

the

California

Court of Appeals held that an expressed employer policy on
complaint procedures and the employee's seniority with the
company

operated

as

a

form

of

estoppel

precluding

discharge without good cause.
In the case of Fortune v National Cash Register C o .,
373 Mass 96, 364 NE2d 1251 (1977), 115 BNA LRRM 4658, the
Supreme Judicial Court ruled in favor of the employee when
it

decided

that

the

employee

was

discharged

in

the

49

employer's attempt to avoid payment of a previously earned
commission bonus.

The employer's discharge was alleged to

have deprived him of commissions on future deliveries for
a sale that had been previously credited to his account,
with the employee thereby being denied the bonus he was
entitled to

(Id.

at 100,364 NE2d at 1254) .

This court

chose to see the covenant of good faith and fair dealing
as implicit in the general

law of contracts and that a

written at-will employment contract contained a good faith
and fair dealing covenant.
In

Savodnik

v

Korvettes.

I n c .,

488

FSupp

882

(E.D.N.Y. 1980), 8 RIA para. 22,721, the court found that
a

13-year

employee

discharged

within

two

years

of

the

vesting of his pension benefit was found to be a discharge
in

bad

f a ith.

Federated Dept.

In

a

California

case,

Stores. 672 F2d 1312

Cancellier

v

(1982) , 28 BNA FEP

CAS 1151, the court placed limits on the applicability of
the doctrine by indicating that to establish an implied
covenant of good faith and fair dealing, the employee must
allege and prove longevity of service and the existence of
policies or oral representations of an implied promise by
the employer not to deal arbitrarily with employees.

A

Connecticut court has held that if the employer engages in
fraud,

deceit,

covenant.

or misrepresentation, it breaches

Maanan v Anaconda

Industries.

Inc..

37

the
Conn

50
Supp 38,

429 A 2d 492

(1980),

117 BNA LRRM 2163.

The

implied covenant could be breached only when the discharge
contravened public policy.
Courts have disagreed on the cause of action being
tort or contract or whether the covenant covers at-will
contracts.

Most courts, including Michigan, have refused

to adopt the covenant as an exception to the employmentat-will doctrine.

Michigan's first case brought to the

Michigan Supreme Court on this matter was

Prussinq v

General Motors Corp. , 403 Mich 366, 269 NW2d 181

(1978) ,

where the court declined to rule on the issue.
It has
remains

an

been

suggested

that

employment-at-will

as

state,

long
it

as

Michigan

is unlikely

to

adopt the covenant because it would present a theoretical
clash with the at-will doctrine.

However, it is also very

important to examine the precedents of other states as the
common law of wrongful discharge continues to evolve.
Summary
It can be concluded that many

challenges

to

the

traditional common law doctrine of employment-at-wi11 have
occurred during this century.
handed

down

in

recent

years

Important court decisions
have

provided

a

cause

of

action for breach of contract in what had been construed
as an at-will employment relationship.

What is known is

that Michigan courts and other jurisdictions have, for the

51
most

part,

retained

the

employment relationship

common

law

is subject

rule

that

the

to termination

by

either the employer or the employee at any time and for
any

reason,

except

for

a

clear

violation

of

a

public

policy or when there are other "distinguishing features"
to the employment relationship.
In Michigan's leading case, Toussaint v Blue Cross &
Blue Shield of Michigan, the court has opened the door for
establishing an expanded definition of the employment
relationship.

It makes

statements

the

by

it

clear that

employer

can

oral

create

or

a

written

legitimate

employee expectation of discharge only for just cause or
in accordance with some policy that the

employer

has

stated.
A variety of commentators have made suggestions for
changes in the law designed to protect at-will employees
against

arbitrary,

capricious,

discriminatory discharge,

unfair,

unjust,

or

while others have discussed

strategies that the employer might adopt to protect the
business

against employee claims

of unfair

(Gittler,

1988; Johnston & Taylor,

1985;

Voluck, 1987).

treatment

Steiber,

1984;

What is important is the realization that

this is a new and rapidly evolving area needing additional
investigation and research.

CHAPTER III
RESEARCH METHODOLOGY AND THE DESIGN OF THE STUDY
Introduction
The purpose of this study was to describe,

identify,

and assess what effect the changes of the employment-atwill doctrine have had on selected personnel policies and
procedures at Michigan's four-year state institutions of
higher education,

as perceived by executives

from those

organizations, during the period 1979 to 1989.

To provide

more

focus to the s t u d y , the

following

questions

for

investigation were developed:
1.

Have there been changes

structural

organizational

in the

institution's

alignment or administrative

responsibility for disciplinary action and d i s c h a r g e ,
especially

in

regard

to

(a)

final

authority

and

(b)

staffing level and reporting lines?
2.

Have personnel policies, procedures,

or rules

been changed during the ten-year period?
3a.

In what

manner

has

management

activity

or

behavior changed regarding discipline and discharge?
3b.

What are respondents' attitudes toward wrongful

discharge?

52

53
4a.

What changes have taken place in management

training,

and

in what

format

does

management

training

occur?
4b.

From which outside sources or groups does the

institution seek assistance when dealing with this issue?
5.

What is the degree of satisfaction with current

policies and activities regarding termination?
Description of the Population and Sample
The wrongful discharge issue affects all businesses
that

employ

at-will

covered under
other

formal

exemptions
employee.
and

collective

employment

for small

i.e., those

workers

bargaining

contract

agreement.

There

or

not
some

are

no

businesses, even those with

one

Because of the large number and types of profit

nonprofit

practical

a

employees,

organizations, there

limitations

relating

to

were

the

obvious

selection

of

and
an

appropriate population for this research project.
First, it was decided that since the general focus of
this study was based on at-will employees in Michigan and
court decisions on wrongful discharge in the state, the
population would be
Further,

it

institutions

was
of

limited geographically to Michigan.
limited

higher

to

all

education

in

four-year

state

Michigan.

The

institutions that fit into this population and included in
the

survey were Central

Michigan University,

Eastern

54
Michigan University, Ferris State University, Grand Valley
State University, Lake Superior State University, Michigan
State

University,

Michigan

Technological

University,

Oakland University, Northern Michigan University,
Valley

State

University,

University

of

Saginaw

Michigan,

Wayne

State University, and Western Michigan University.
The decision to
at

Michigan's

interview administrative

four-year

state

executives

universities

was

made

because of the investigator's familiarity and experience
with the system of higher education and proximity to the
institutions within the state.

Because of the manageable

number of institutions, the entire population was included
in the

sample,

i.e.,

13 human

resource

executives,

one

from each of the four-year state universities in Michigan.
Selection of the specific executives to be
in

the

sample

were

based

on

(a)

which

included

executives

had

primary responsibility for making and revising personnel
policies
likely

and
to

procedures

have

employment

and

experience

relationships

nonunion,

noncontractual

positions

included

Vice-President,
Resources,

(c)

University

at t o r n e y .

with

and

between

the

of
If

of

Employee

executives

knowledge

were

of

the

institution

and

The executive-level

study were

Director

Director

which

employees.

in this

(b)

(b)

(a)

President

Personnel

or

Relations,

institutions

used

or

Human

and

(d)

different

titles, the individual with primary responsibility for the

55

human resource
level

function was selected.

administrators

institutional

human

had

primary

resource

These

executive-

responsibility

decision

making

for
and

management, as well as knowledge, experience, and a broad
institutional perspective in human resource decisions for
the university.
Design of the Instrument
The Questionnaire and Interview Guide
A) , hereinafter

referred

to

as

the

(see Appendix

instrument, was

developed following an extensive review of the 1iterature
and analysis of the problem.
information

and

It was developed to solicit

perceptions

that

would

assist

in

d es c r i b i n g , identifying, and assessing the effeet the
erosion of the employment-at-will doctrine has had on the
personnel policies and practices selected for this study.
The instrument was designed to capture the actual activity
taking place in the institution with regard to particular
personnel policies and practices.
instrument

was

designed

to

(a)

More specifically,
determine

how

the
many

employees at the institution fit the category of 88at will"
employees,

(b) discover what types of personnel

policies

and practices were in place that could affect the status
of at-will e m p l o y e e s , (c) determine whether personnel
policies and practices in 1989 were different from those
that were in place in 1979,

(d) assess perceptions about

56

related management

activities

or

organizational

changes

that had changed over the ten-year period, and (e) assess
respondents' views and attitudes about the employment-atwill doctrine and issues surrounding the doctrine.
The statements that were used in the instrument were
composed after a thorough review of suggested management
behavior,

or lack of behavior,

which according to legal

advisors may be affecting employers' ability to discharge
The additional data sought from the instrument

at will.

allowed the
personnel

researcher to evaluate

policies

and

procedures

change
by

in related

comparing

what

institutions had in place in 1979 with what activity was
taking

place

in

1989,

and

to

investigate

what

changes

management contemplated making in the near future.
The

instrument was

composed

of

forced-answer

items

along with provisions for open-ended responses organized
in

ten

parts.

information

about

The

questions

in

the

respondent's

Part

title

I

solicited

and

employment both at the institution and in the
position.

length

of

incumbent

This information was helpful to better identify

and clarify areas of the study with which the respondent
was unable to provide a response, due to lack of tenure in
the

incumbent

institution.

position
The

or

questions

lack

of

in

Part

tenure
II

at

the

helped

the

respondent and researcher determine together how many

57
employees might conceivably be in an at-will
relationship with the institution,

employment

i . e . , the employee

group exclusive of any unionized or contractual employment
relationships.

These

employees

could

be

viewed

as

at

will, depending on what personnel policies and practices
were written or implied for this group, and which were
included and investigated in this study.
Questions

in Parts

III and IV of

the

instrument

solicited responses to questions related to personnel
policies and practices that were in existence in 1979 and
to those in existence in 1989.
used

to

assess

relationship

current

with

status

of

the

non-bargained-for,

the

employees, relying,

The responses here were

in

p a r t , on

the

guidelines set forth by legal advisors.

employment

noncontractual
principles

and

The questions in

Part V assessed how decentralized the discipline
discharge
level

of

function
authority

allowable.

The

was

at

institution

the

discipline

instrument

and

then

and

discharge
sought

at

and
what

action

information

was
in

Parts VI and VII related to what changes had occurred over
the

ten-year

period

associated

with

the

day-to-day

activities of management for the discipline and discharge
function.
Questions
management's

in Part VIII
general

level

requested
of

information

satisfaction

with

on
the

current policies, management's viewpoint on the issue of

58

wrongful discharge,
the

subject,

"outside"

and

instruction provided to management on
whether

management

sought

sources when dealing with this

respondents ' exposure to the wrongful

input

from

issue.

The

discharge

issues,

and views and attitudes of the respondents, were gathered
from the

questions

in Part

IX.

The

researcher

sought

responses to these questions in order to assess whether
the legal environment had caused a conscious change among
the management group in dealing with employees in the atwill

group.

respondents'

These

questions

also

helped

to

assess

perceptions of how they viewed management's

response to the discipline and discharge function and to
gain insight into the respondents' own views and attitudes
regarding

what

had

occurred

related to the wrongful

during

discharge

the

decade

i ssue.

as

it

Soliciting

responses to these questions helped to determine whether
knowledge, views, and attitude had an effect on the amount
of change that had occurred at the institutions over the
ten-year period.

The final questions in Part X requested

information as to whether the institution had, during the
ten-year period, experienced a wrongful discharge lawsuit
brought against it by a nonunion, noncontracted employee,
the cause of action of the lawsuit,
lawsuit.

and outcome of the

Although it was sensitive information for the

institution to divulge, background on lawsuits was helpful

59
for the
have

researcher

been

part

to

of

the

determine
reason

whether

for

lawsuits

change

in

might

personnel

policies and procedures over the ten-year period.
Data Collection
Structured
individual

interviews

institutions

during

were

personal

selected

visits

as

the

to

most

appropriate means to obtain responses to the instrument.
There were several reasons for this choice.

First,

the

instrument was too lengthy and complex to mail, expecting
human resource executives to voluntarily complete and
promptly return it.
interviews

would

Second, it was believed that personal
the

provide

respondents

with

the

opportunity to identify with the researcher and that the
resulting rapport would encourage

a free exchange

of

information.

Third was the probability that confidential

or sensitive

information,

such as termination rates

information regarding wrongful discharge lawsuits,
be

volunteered

possible

to

knowledgeable

and

be

identify

more
more

person(s)

accurate.
closely

from

whom

Last,

the
to

and

might

it

was

appropriately
obtain

the

information.
The individual sessions were designed to seek input
on question bias, vagueness, or confusion and for ease of
completing the questionnaire.

The interviews also helped

determine the general attitudes of the respondents about

60
the subject overall.

A Questionnaire and Interview Guide

and a cover letter (see Appendices A and B) were provided
to

each

respondent

on

Participants were

told

their

and

responses

confidential.
were

coded

the

that
the

day

the

of

individual

institution

Following the interviews,
so

that

neither

the

the

interview.
identity

would

meeting,

the

kept

all instruments

institution

respondent could be linked to the responses.
confidential

be

of

nor

During the

completed

researcher

the

the

instrument, recording all responses, while the respondent
followed

along

throughout the

using

a

process.

blank
The

instrument

interview

for

involved

review
highly

structured questions in accordance with the instrument and
then

followed with

open-ended

questions

in which the

respondents could express themselves on any area that they
believed needed further clarification or explanation.
The

instrument

was

pilot

tested

with

two

human

resource executives from institutions of higher education
in Michigan,
study itself.

but not with any of those
The

instrument was

included

in the

revised based

on the

comments of the pilot group and the degree to which the
instrument fit the purpose of the study.

Face validity of

the questionnaire was assumed from this process.

61
Data Analysis
Responses to the instrument were coded for computer
analysis.

The coding provided for a consistent direction

of responses, not to give value but to lend consistency
for analysis and interpretation of data.

This procedure

was necessary because the numeric value of positive item
responses

was

varied

across

items

so

as

to

avoid

a

response set on the part of the respondents.
The responses given to questions in Parts I and II of
the instrument were analyzed using descriptive statistics.
Frequencies

and

percentages

were

used

to

describe

quantitatively, in summary form, the data related to the
respondent's

position,

the

respondent's

length

of

employment at the institution and in the current position,
and

the

composition

of

the

workforce.

Descriptive

analysis was also used to analyze responses to Research
Question lb, and Research Questions 3, 4, and 5.
The responses to Research Question la,
been

changes

in

the

institution's

"Have there

structural

tional alignment or administrative

organiza­

responsibility for

disciplinary action and discharge, especially in regard to
final

authority?"

statistical

were

techn i q u e .

analyzed
This

using

the

technique

chi-square

was

used

to

determine whether the changes from 1979 to 1989 were due
to chance or to a theoretically expected distribution.

62
The statistical measure used to analyze the responses
to

Research

Question

procedures, or

rules

matched-pairs t-test.
the

changes

from 1979

"Have

2,

been

personnel

changed?"

was

a

policies,
one-tailed,

This technique was used to compare
to

1989.

However,

upon

initial

examination, three of the individual questions in this set
were responded to by the majority of the respondents as
"almost always."

Such responses left no room for change

in the expected direction.
were omitted.

Thus,

those individual items

Because of this change, the analysis became

less than a priori

and took on a post-hoc

aspect.

To

adjust the probabilities of the t-test for this post-hoc
aspect, a standard, one-tailed t-test (a more conservative
test) was used.
Summary
The content of this chapter was a detailed account of
the

procedures

established

and

followed

investigator in carrying out the study.

by

the

The purpose of

the study was reiterated in this chapter as the guiding
principle in the design of the questions of investigation.
The sample and design of the instrument, which was done in
accordance with the original
described in this chapter.
and analysis

of data,

statement of purpose, were
Additionally,

the collection

which followed established

and

63
conventional procedures, was described.
study are presented in Chapter IV.

Findings of the

CHAPTER IV
ANALYSIS OF THE DATA
Introduction
The

findings

from

the

survey

of

human

resource

executives from Michigan's four-year state institutions of
higher education are presented

in this

chapter.

The

findings are based on an analysis of the data collected
from the administration of the instrument.
The instrument was designed to (a) determine how many
employees

the

institution

had

definition of at-will employees,
of personnel
could

policies

affect

the

who

potentially

of

the

(b) discover what types

and practices were

status

fit

at-will

in place

e mployees,

that
(c)

determine whether personnel policies and practices in 1979
were different from those that were in place in 1989,

(d)

assess perceptions about related management activities or
organizational changes that have changed over the ten-year
period,
about

and
the

(e) assess respondents' views and
employment-at-will

surrounding the doctrine.

doctrine

More specifically,

attitudes

and

issues

the survey

was designed to gain responses to the following research
questions:

64

65
1.

Have there been changes

structural

organizational

in the

institution's

alignment or administrative

responsibility for disciplinary action and discharge,
especially

in

regard

to

(a)

final

authority

and

(b)

staffing level and reporting lines?
2.

Have personnel policies, procedures, or rules

been changed during the ten-year period?
3a.

In

manner

what

has

management

activity

or

behavior changed regarding discipline and discharge?
3b.

What are respondents' attitudes toward wrongful

discharge?
4a.
training,

What changes have taken place
and

in

what

format

does

in management

management

training

occur?
4b.

From which outside sources or groups does

the

institution seek assistance when dealing with this issue?
5.

What is the degree of satisfaction with current

policies and activities regarding termination?
Analysis
Research

of

the

Questions

data
3,

descriptive statistics.
used

to

describe

differences

as

4 ,

Research

and

5 was

Question

lb

conducted

and

using

Frequencies and percentages were

quantitatively,

reported

by

square statistic was used
determine whether

in

the

in

summary

respondents.

form,

the

The

chi-

in Research Question

organizational

changes

were

la to
due

chance or to a theoretically expected distribution.

to
For

66

purposes

of

defined as

this

study,

significant

a

relationship

one having a chi-square probability

of

was
less

than .05.
A standard, one-tailed t-test was used to analyze the
responses to Research Question 2 , concerning changes
personnel policies,
took

procedures, and rules.

on a post-hoc

aspect

The analysis

after the researcher

removed

responses of three of the questions in this section.
was

done because

answered

"almost

out

of

always"

13

respondents, at

to

those

questions

This

least
for

for this

question,

conservative

12

1979,

leaving no room for change in the expected direction.
matched-pairs t-test,

in

A

the most appropriate a priori test

was

standard

discarded

t-test,

so

in

favor

as

to

of

the

compensate

more
for

removing the three questions.
The

instruments were

sessions with
from

the

each

four-year

confidential

of the
state

meeting,

instrument, recording
involved highly

the
all

structured

completed during
13

human

resource

institutions.
researcher
responses.
questions

individual
executives
During

the

completed

the

The

interview

in accordance with

the instrument and then followed with open-ended questions
in which the respondent could express him/herself in any
area needing

further clarification or explanation.

The

instruments were then reviewed and evaluated for inclusion

67
in the study.

Findings related to questions

implicitly

addressed in the instrument are discussed below.
Data Analysis
Discussion of Questions in
Parts I and II: General
Demographic Information
The executive-1eve1 administrative positions included
in the

study were

(a)

President or Vice-President,

Director of Personnel or Human Resources,
Employee Relations, (d)
Other.

(b)

(c) Director of

University Attorney,

and

(e)

These executives were selected because of their

primary responsibility for making and revising personnel
policies, and the likelihood that their experience in and
knowledge of the personnel function would ensure that they
had sufficient information about employment relationships
between

the

institution and employees.

Questions

in

Part I of the instrument solicited information about the
executive's
the

(respondent's) title, length of employment at

university, and

length

of time

in

the

incumbent

position.
Executive-level administrators from M i c higan's 13
four-year state institutions of higher education were
included in the study.

Tables 4.1, 4.2, and 4.3 provide a

detailed analysis of the population and relative frequency
percentages.

68
It

can

be

seen

in

Table

4.1

that

77%

of

the

respondents were from the categories of President or VicePresident, Director of Personnel, or Director of Employee
Relations.
referred

Also included in this group were executives
to

President.

by
The

the

institution

remaining three

as

Assistant

respondents

Vice-

(23%)

were

placed in the "other" category, with titles of Director of
Human Resources-Medical Center and Assistant Director of
Personnel-Corporate

(joint

Compensation and Benefits,

appointment), Director

of

and Manager of Employment and

Compensation.
Table 4.1.— Job titles of respondents.

Job Title

Number of
Responses

President or Vice-President
Dir. of Personnel/Hum. Res.
Dir. of Employee Relations
University Attorney
Other3
Total

Relative
Frequency
(%)

5
3
2
0
3

38.5
23.0
15.5
0
23.0

13

100.0

a "Other" included (a) Director of Human ResourcesMedical Center and Assistant Director of PersonnelCorporate
(joint
appointment),
(b)
Director
of
Compensation and Benefits, and (c) Manager of Employment
and Compensation.

It may be seen in Table 4.2 that the range of the
average

years

of

service

at

the

institution

among

the

69

respondents was
14.17 years.

from a low of 9.33

years to

a high

of

The average for all respondents was 11.55

years.

Table 4.2.— Respondents' length of service at institution.
Number of
Responses

Min.
Years

Max.
Years

Ave.
Years

President or VicePresident

5

.42

20. 00

10.43

Director of Personnel/
Human Resources

3

6.50

22.00

14.17

Director of
Employee Relations

2

7.50

20.00

13.75

University Attorney

0

0

0

0

Other

3

2.50

17.00

9.33

13

3.40

19.77

11. 55

Position

Total

Table 4.3 reflects the average years
the respondents' incumbent position.

of service

The range was from a

low of 3.78 years to a high of 7.83 years.
for all respondents was 4.81 years.

in

The average

In one instance where

the Assistant Vice-President was new to the institution,
two other human resource executives from the institution
joined the

discussion

historical

data

instrument.

and provided

important

to

the

the

researcher

completion

of

with
the

This confirmed that the information given to

70

the

researcher

was

provided

by

individuals

well

established at the institution and in the human resources
profession.

Table 4.3."-Respondents' length of service in incumbent
position.
Number of
Responses

Min.
Years

Max.
Years

Ave.
Years

President or VicePresident

5

.42

9.00

3.78

Director of Personnel/
Human Resources

3

2.50

14.00

7.83

Director of
Employee Relations

2

2.00

7. 00

4.50

University Attorney

0

0

0

0

Other

3

.17

8.50

3.72

13

1.09

9.73

4.81

of

instrument

Position

Total

Questions
provided

in

the

information

second
on

institution's w o r k f o r c e .
researcher with pertinent
employees were unionized

the
The

part

the

demographics
responses

information

of

provided

the
the

as to how many

and how many had employment

contracts, thereby precluding their inclusion in the atwill

employee

group.

Those

remaining

employees,

i.e. ,

those reported in Table 4.4 as "total employees with no

71
union

representation

or

employment

contract,"

group to which the research questions in the

were

the

instrument

were directed.
Table

4.4

displays

the

totality

statewide, among all 13 institutions.

of

the

workforce,

The table indicates

a total count of approximately 46,857 employees.
two

percent

or

19,682

were

categorized

as

Forty-

nonunion,

noncontractual employees.
Table 4.4.— Composition of workforce for all institutions.
Number of
Employees
Reported
Total employees covered by
bargaining unit contract
Total employees with
employment contract
Total employees with no
union representation or
employment contract
Total

Relative
Frequency
(%)

24,908

53.16

2,267

4.84

19,682

42.00

46,857

100.00

Research Question 1
Have there been changes in the institution's
structural organizational alignment or administrative
responsibility for disciplinary action and discharge,
especially in regard to (a) final authority and (b)
staffing level and reporting lines?
Questions in Parts V and VI of the instrument were
designed

to

address

Research

Questions

la

and

lb,

72

respectively.
insight

Specifically, the researcher gained greater

into which

executives

held

final

discipline and discharge of employees,

authority

for

and whether there

were changes made during the ten-year period with regard
to who had final authority in these matters.
With respect to Question la, a chi-square statistical
test was applied to determine whether the changes in final
authority for discharge and disciplinary action from 1979
to 1989 were due to chance or to a theoretically expected
distribution.

The results from the test showed that from

several of the cells in the chi-square table, the expected
values were less than five.

The assumptions of the chi-

square test do not permit its use when the expected values
become less than five.
not used.

Therefore, the chi-square test was

It was replaced by examination and descriptive

analysis of the data that can be found in Tables 4.5 and
4.6.
Tables

4.5

and

4.6 reflect the

questions in Part V of the instrument.
these

tables,

with the

authority

Department

on

Head,

responses

Director of Personnel 85% of the time.

to

As may be seen in

disciplinary
Immediate

given

matters

Supervisor,

rested
or

the

The President was

reported as having final authority on disciplinary matters
15% of the time.
and

1989

was

an

The only change reported between 1979
increase

Supervisors in this function.

of

the

use

of

Immediate

Table 4.5.— Change in final authority for discipline from
1979 to 1989.

President or Vice-President
Dir. of Personnel/Human Resources
Immediate Supervisor
Dept. Head/Manager
University Attorney
Outside Attorney
External Party— Griev. Proc.
Other
Total

Final
Authority
1979

Final
Authority
1989

3
6
5
6
0
0
0
0

3
6
7
7
0
0
0
0

20

23

Table 4.6.-— Change in final authority for discharge from
1979 to 1989.

President or Vice-President
Dir. of Personnel/Human Resources
Immediate Supervisor
Dept. Head/Manager
University Attorney
Outside Attorney
External Party— Griev. Proc.
Other3
Total

Final
Authority
1979

Final
Authority
1989

6
3
2
2
0
0
0
1

6
5
3
1
0
0
0
1

14

17

a 11Other11 reported was Board of Control.
Final authority on discharge action in 1979 rested,
for the most part, with the President or Vice-President

74

(42%), then the Director of Personnel (21.4%), and finally
the Department Head and Immediate Supervisor
14.3%).

In one case,

of Control
1989,

as having

one

Attorney, whereas

the institution reported the Board
final

respondent

(each with

authority on discharge.

indicated

at that

the

same

use

time

of

there

an

In

in-house

was

also

an

increase in the use of the Personnel Director for final
authority.
With the responses to questions
instrument, the
whether

there

relative to
handling

researcher

were

changes

staffing

very

during

levels

discipline

indicated

sought

the

and/or

change

as

ten-year

reporting

in

of the

information

discharge.

and

limited

in Part VI

to

period

lines

for

The

responses

or

different

new

reporting lines, or position and reporting procedure, with
only

two

institutions

institution

changed

(15.4%)

reporting

reporting
lines

for

changes.

One

discipline

and

discharge from Human Resources to Legal Counsel, then back
to Human Resources during the ten-year period.

Another

institution reported having separated reporting lines for
the

staff,

from

reporting

lines

for the

faculty, in

dealing with discipline and discharge matters during the
survey period.

75
Research Question 2
Have personnel policies, procedures,
changed during the ten-year period?
The

responses

to

questions

in

or rules been

Part

III

of

the

instrument provided the data to answer Research Question
2.

These questions, which provided data on the changes

in personnel policies and procedures during the ten-year
period,

were

analyzed using

a

one-tailed

t-test.

The

formula and Table 4.7 reflect the test data.

It can be

concluded

the

from

this

statistical

test

and

data

reflected in Table 4.7 that the differences between the
responses for 1979 and 1989 were not random, and thus the
policies

and

procedures

had

changed

during

the

period

studied.

t =

X1

v/IdT
N !"l

~

X2

sat

N2-l

Table 4.7.— Comparison of personnel policies, procedures,
or rules between 1979 and 1989.
Average
n
1979 (1)
1989 (2)

13
13

m

Standard
Deviation (sd)

11.62
12.84

1.54
1.89

t (.05,24,one-tail) = 1.71

< .05.

t (.05,24)
-1.74

76

Further
Parts

III

descriptive

and

determine which

IV

of

analysis

the

of

each

instrument

specific statements

was

statement

in

helpful

to

showed the greatest

amount of change between policies and procedures in effect
in 1979 and those in effect in 1989.
survey

included

fixed-alternative

address Research Question 2:
procedures,
period?"

or

rules

scale,

ranging

(never).

The survey also

choice

(5)

don't

designed

"Have personnel
during

to

policies,

the

ten-year

the responses were recorded on a

four-point

of

questions

changed

been

In Part III,

In these parts, the

from

know

(almost

allowed the
or

purposes of data analysis,

1

(6)

not

always)

to

respondent

applicable.

when response

(5) or

4

the
For

(6) was

given, the researcher took the more conservative approach
of recording "no change."

Responses to statements in Part

IV were either "yes" or "no" and were asked for the year
1979 and then repeated for 1989.

Again, if the respondent

indicated a "don't know" or "not applicable" response, the
researcher

entered

a

"no

change"

for

data-analysis

purposes.
Responses

to

statements

in

Part

III.

The

ten

statements in this set represented possible personnel
policies

and

procedures

used

by

the

institution.

The

respondent was asked to respond to each statement with one
of the

following:

(1)

almost

always,

(2)

some

of the

77
time,

(3)

rarely,

(4)

never,

(5)

don't

know,

(6)

not

applicable.
1.

Use

of the

word

"permanent"

in

advertisement.

Ten out of 13 respondents said "never" for both 1979 and
1989.

These

institutions'

responses

showed

no

change

policy during the decade.

said "rarely" for both periods,

in

the

One respondent

again showing no change.

Two respondents did report change.

One said "rarely" for

1979 and "never" for 1989; the other reported "some of the
time" for 1979 and "never" for 1989.
2.

on the

employment

application specifying "at-will" relationship.

Twelve of

the 13
1989,
One

Include a written

respondents said

disclaimer

"never"

reflecting no change
respondent

indicated

for the years

in the
"never"

institutions'
for

1979

and

1979

and

policy.
"almost

always" for 1989.
3.

Use the words "permanent" or "probationary" dur­

ing the employment interview.
given was "almost always."

The most frequent response

This response was given by six

interviewees for both 1979 and 1989, reflecting no change
in policies.

Four

of

the

institutions

"some of the time" for both 1979 and 1989.
tion indicated "never"
institutions

reported

responded

One institu­

for the ten-year p e r i o d .
cha n g e .

One

always" for 1979 and "never" for 1989.

with

reported

Two

"almost

The other reported

"some of the time" for 1979 and "almost always" for 1989.

78

4.

Use the words "permanent" or "probationary" dur­

ing the orientation period.
"almost

always"

reported

"some

for

1979

of

the

Seven institutions reported

and

1989.

time"

Four

for

both

institutions
years.

One

institution reported "never" for the period investigated.
One institution reported a change from "almost always" in
1979 to "never" in 1989.
5.

Make

advancement.
periods

reference

to

job

security

or

unlimited

Six institutions reported "rarely" for both

studied.

Two

institutions

said

"some of the

time," one said "almost always," and one responded "never"
for

the

ten-year

period.

Three

institutions

reported

change, all moving from the response of "some of the time"
in 1979

to

"almost

always"

in one

c a s e , "rarely"

in

another case, and "never" in the third instance.
6.

Include a written disclaimer specifying at-will

relationship for employees with an "offer letter."
institutions

responded

"never"

for

the

period

Eleven
1979

to

One institution showed a change from "rarely" to

1989.

"almost always," and the final respondent indicated change
from "almost always" to "never."
7.

Have

employees

to

a written
sign

when

at-will
hired.

disclaimer
All

13

for

all

new

respondents

indicated "never" to this question for 1979 as well as for
1989.

79
8.

Reiterate

employment

the

at-will

relationship.

policy

Twelve

answered "never" for the period.

of

throughout

the

13

the

respondents

One respondent indicated

having changed from "rarely" in 1979 to "some of the time"
in 1989.
9.
Eight

Require

a written

institutions

study,

whereas

receipt

for

the

"never"

for

the period

responded

three

responded

"not

handbook.

applicable"

of

because

they did not have a handbook.

Two institutions reported

change; one

from

reported

changing

-never"

in

1979

to

"almost always" in 1989, and the other reported "some of
the time" in 1979, changing to "almost always" in 1989.
10.

Pre-discharge

review whereby management

lates reasons for discharge.
"almost always"

for

the

articu­

Seven institutions reported

period

studied.

Two

of

the

institutions showed "some of the time" for both periods,
whereas another reported "not applicable" as the response
for 1979 through 1989.

Finally, one institution reported

"never" for both periods.
from "some of the time"

Two respondents showed change
in 1979 to

"almost always"

for

1989.
Responses

Part

III

questions referred to personnel policies in general.

The

questions

in

to

Part

statements

IV

in

referred

Part

to

IV.

written

policies/

provisions in employee handbooks or other employee-related
documents.

The responses in this section were

"yes" or

80

"no" during the period studied,

1979 through

1989.

In

some instances the respondent replied "don't know" or "not
applicable."
1.

These responses were recorded as well.

Written clause specifying the employment-at-will
relationship in handbook or other document.
No
1979
1989

2.

0
30.8

7.7
0

No

Yes

38.5
46.1

7.7
30.8

Not Applicable/
Don't Know
53.8
23.1

Provision providing for "just cause"
handbook or other document.

1979
1989
4.

Not Applicable/
Don't Know

Written statement that the handbook is not a contract
of employment.

1979
1989
3.

38.5
69.2

Yes

No

Yes

38.5
46.2

53.8
53.8

discharge

in

Not Applicable/
Don't Know
7.7
0

Use of words "permanent" or "probationary" in handbook
or other document.

1979
1989

No

Yes

7.7
23.1

92.3
76.9

Not Applicable/
Don't Know
0
0

81
5.

Reference to job security or unlimited advancement in
handbook or other document.

1979
1989
6.

No

Yes

53.8
61.5

46.2
38.5

1979
1989

46.2
30.8

Not Applicable/
Don't Know

15.3
53.8

No

Yes

46.2
53.8

46.2
46.2

38.5
15.4

Not Applicable/
Don't Know
7.6
0

Written statement that the employee may be discharged
at any time for any reason.
No
1979
1989

9.

Yes

List of conduct leading to discipline or discharge in
handbook or other document.

1979
1989
8.

0
0

Statement of employer's ability to change contents on
regular basis, as deemed appropriate.
No

7.

Not Applicable/
Don't Know

92.3
84.6

Yes

Not Applicable/
Don't Know

0
15.4

7.7
0

Informal, nonwritten complaint procedure.

1979
1989

No

Yes

23.1
30.8

76.9
69.2

Not Applicable/
Don't Know
0
0

82

10 . Formal written complaint procedure.

1979
1989

No

Yes

Not Applicable/
Don't Know

46.2
30.8

53.8
69.2

0
0

11 . Formal written grievance procedure.

1979
1989

No

Yes

Not Applicable/
Don't Know

30.8
15.3

69.2
84.7

0
0

12 . Provision that disciplinary matters are
the complaint or grievance procedure.
No
1979
1989
13.

46.2
38.5

53.8
61.5

to

Not Applicable/
Don't Know
0
0

Have a written progressive or corrective disciplinary
procedure.
No
1979
1989

14.

Yes

subject

46.2
53.8

Yes
53.8
46.2

Not Applicable/
Don't Know
0
0

Grievance procedure's final step is with an outside
arbitrator or objective party.
No
1979
1989

92.3
92.3

Yes
7.7
0

Not Applicable/
Don't Know
0
7.7

83
15.

The arbitrator or objective party is decided
jointly by the university and the grievant.
No
1979
1989

16.

Yes

0
0

upon

Not Applicable/
Don't Know

7.7
0

92.3
100.0

The cost of the arbitrator is borne equally by the
parties.
No
1979
1989

Yes

0
0

Not Applicable/
Don't Know

7.7
0

92.3
100.0

Research Question 3
3a.

In what manner has management activity or
behavior changed regarding discipline and
discharge?

3b.

What are respondents' attitudes toward wrongful
discharge?

Questions in Part VII of the instrument were designed
to

respond

to

Research

Question

3a.

Respondents

were

asked whether they thought any additional time had been
devoted by managers during the ten-year period to tasks
related

to

(a)

investigation,
committees,

documentation,

(c)

policies

(e) advising,

education and training,
the

responses.

follows.

A

(b)

and/or

analysis
procedures,

(f) new manager orientation,
(h) other.

descriptive

and
(d)
(g)

Table 4.8 summarizes

analysis

of

Table

4.8

84
Table 4.8.— Reported percentage change in various disci­
pline/discharge management activities from
1979 to 1989.
Percentage! O f Change
Activity

Total
Up to
9%

1024%

2550%

1
2
1
9
0
5
2

2
1
4
1
2
0
0

1
3
2
0
2
5
6

5
5
2
1
3
0
2

4
2
2
1
5
2
2

13
13
11
12
12
12
12

20

10

19

18

18

85

No
Change
Documentation
Analysis/invest.
Policies/proc.
Committee
Advising
New mgr. orient.
Educ./training
Total

1.
change

Documentation.
during

records.
amount

the

Two
of

institution

ten-year

period

institutions

showed

change.

respondents

One

Nine

indicated

a

in
a

reported

no

documentation

of

small

(approximately

large

or

>50%

to

moderate

69%)

significant

of

the

amount

of

additional time spent on this activity during the ten-year
period.
2.

Analysis/investigation.

reported

no

change

investigation

of

in

the

amount

of

amount

the
of

institutions

change

in

reported

this

analysis

matters.

Eight
a

institutions

of

discipline/discharge

reported a small amount of change.
61%)

Two

One

(approximately

moderate

management

or

to

large

activity.

Two

85
institutions

showed

a

significant

amount

of

additional

time devoted to this management activity.
3.

Policies/procedures.

additional

time

spent

discipline/discharge

One institution reported no

in addressing policy

matters.

Four

issues

(approximately

on

36%)

reported having devoted a small amount of additional time.
Two institutions reported a moderate amount, two reported
a large amount, and two reported a significant amount of
increased

time

devoted

revising policies

to

developing, reviewing, or

and procedures

related

to discipline/

discharge matters.
4.

Committee.

Nine

(75%)

of the respondents indi­

cated there had been no additional time devoted to commit­
tee involvement or the development of new committees to
handle

discipline/discharge

matters.

Of

the

remaining

three respondents, one reported a small amount of change,
one showed a large amount of change,

and one mentioned a

significant amount of change.
5.

Advising.

Eight

(approximately

67%)

of

the

respondents indicated a large or significant increase in
the amount of advising conducted regarding discipline and
discharge matters.
had been

an

All respondents indicated that there

increase

in advising to some degree.

Two

respondents indicated that there had been a small amount
of

c h a n g e , and

two

responded

that

there

moderate amount of increase in this activity.

had

been

a

86

6.

New manager orientation.

Forty-two percent

of

the respondents indicated no additional time spent on this
activity,

whereas

another

24%

said there

had

been

a

moderate amount of additional time spent on this activity.
The remaining two respondents indicated a significant
amount of time devoted to new manager orientation during
this ten-year period.
7.

Education

respondents
amount

of

and

indicated

additional

training.

Fifty

that there had been
training

and

subject for the management group.
had been a large

of

the

a moderate

education

on

this

Four indicated there

or significant amount

activity in this area.

percent

of additional

Two of the institutions indicated

that there had been no change in the amount of training
and education for management on this topic.
8.

Other.

Other activities that were reported

as

requiring additional management time and attention during
the

ten-year

counsel
lawsuits,
(d)

period

(attorneys),

included
(b)

(a)

time

the use
spent

of

outside

responding

to

(c) time spent devising separation agreements,

developing

or revising

the

performance-appraisal

system, and (e) administrative staff time spent responding
to complaints or lawsuits.
A further analysis of responses based on size of the
institution

revealed

a

significant

concentration

of

87
activities worth mentioning.
largest

institutions

employees)
during

(those

having

of the

more

than

spent a large or significant amount

the

analysis

At least 80%

ten-year

and

period

in

areas

investigation, advising,

of

five
2,000

of time

documentation,

and education and

training.
Questions in Part IX of the instrument provided data
in

response

to

Research

respondents' attitudes

Question

toward wrongful

3b,

"What

are

discharge?"

The

responses provided the researcher with information as to
(a) the level of knowledge claimed by the respondent on
the subj ect of wrongful discharge and (b) the respondents'
views and attitudes toward the changes that had occurred
over the ten-year period with

regard to the wrongful

discharge issue.
Eight (61.5%) of the respondents indicated that they
were "well informed" about the wrongful discharge issue.
The remaining five respondents said that they had
knowledge, could be better."

"some

The level of knowledge was

evidenced by the strong response pattern with seven of the
nine statements shown in Table 4.9,

and by the comments

made in this part.
Overall

responses

to

seven

of

the

nine

indicated that 75% of the respondents agreed
degrees) with each statement.
courts

"nit-picking"

statements
(to varying

Ambiguity of the issue and

were two

statements

not

showing

Table 4.9.— Respondents' views of the wrongful discharge issue.
Response
Total

(1)
StD

(2)
MD

(3)
SID

(4)
N

(5)
S1A

(6)
MA

(7)
StA

Issue is ambiguous

1

4

3

1

2

2

0

13

Difficulty defending position

0

2

1

0

3

5

2

13

Courts "nit-picking"

1

2

2

2

1

3

2

13

Courts temper selves

0

1

3

1

1

4

3

13

Costly

0

0

0

0

1

5

7

13

Limits management discretion

0

0

0

0

5

6

2

13

More paperwork

0

0

0

0

2

3

8

13

More job security

0

1

2

1

3

4

2

13

Fear of suits

0

1

1

0

1

5

5

13

2

11

12

5

19

37

31

117

Total
Key:

StD = strongly disagree, MD = moderately disagree, SID = slightly dis­
agree, N = neither, S1A = slightly agree, MA = moderately agree, StA =
strongly agree.

89

consistent

agreement.

A

descriptive

analysis

of

each

statement follows.
1.

Entire

disagreed

with

issue
the

is

ambiguous.

statement,

Eight

four

of

respondents

them

moderately

disagreeing, three slightly, and one strongly disagreeing.
Four respondents agreed with the statement,
and two moderately.

two slightly

Of all statements in this part, this

one received the greatest amount of variance in responses.
2.

Employers face difficulty defending p o s i t i o n .

Approximately 77% of the respondents agreed that employers
face a more difficult task of defending the organization's
position in wrongful discharge claims.
(33%)

disagreed

with

the

Three respondents

statement.

Two

moderately

disagreed and one slightly disagreed.
3.

Courts

are

"nit-picking."

nearly split on this statement.
disagreed,

Respondents

were

Two neither agreed nor

six agreed in significant strength,

and

five

respondents disagreed, slightly or moderately.
4.
was

Courts

strong

should temper their

agreement

on

this

involvement.

statement,

respondents agreeing in significant strength.
respondents

disagreed,

three

of

them

There

with

eight

Four of the

slightly

and

one

moderately.
5.

Costly to the

agreed with

this

bottom

statement.

line.

All

Ninety-two

respondents

percent

either

90
strongly or moderately agreed,

illustrating that even if

they had not directly been affected by a costly lawsuit,
they were familiar with a business or institution that had
been, or had read of such a case(s).
6.

Limits

All

respondents

agreed with this statement, suggesting that

if wrongful

discharge
behave

were

management

not

differently

an

discretion.

issue,

when

they

may

have

with

chosen

to

discipline

and

This statement received

the

dealing

discharge issues.
7.

More p a p e r w o rk.

strongest degree of agreement among the respondents.

All

respondents concurred that the changes during the last ten
years had resulted in a much greater degree of paperwork
for the management group.
8.

More

employee

indicated that the
security

for

job

security.

changes had

at-will

resulted

employees.

respondents

Nine

in greater

Three

job

respondents

disagreed, two slightly and one moderately.
9.
percent

Management fear of employee suits.
of

the

respondents

agreed

with

Eighty-five

this

statement.

One respondent slightly disagreed, and another moderately
disagreed.
This

set

of

questions

responses

and comments.

additional

comments

respondents.

also
The

allowed

following

representing views

for
is

open-ended
a list

expressed

by

of
the

91

Changes reported occurring over the ten-year period:
a.

Greater effort needed on how to deal with problem

employees.
b.

Greater preparedness required for substance-abuse

problems.
c.

More time required to keep up with

legislation

and court cases.
d.

Institution needs to expend more effort to become

at-will with employees.
e.

More activity needs to go to a higher level of

management.
f.

Need much more management training and education.

g.

A need for different policies and procedures that

better fit the various "cultures" on campus.
h.

Requires better use of the performance evaluation

system.
i.

Fatalism.

j.

Need for new policies.

Each of the above comments except for (f) and (j) was
made once by a respondent.

Comment

(f) was repeated on

five

(j ) was

repeated

occasions.

Comment

respondents on separate occasions.

by

three

92
Research Questions 4 and 5
4a.
4b.

5.

What changes have taken place in management
training, and in what format does management
training occur?
From which outside sources or groups does the
institution seek assistance when dealing with
this issue?
What is the degree of satisfaction with current
policies and activities regarding termination?

The questions asked in Part VIII

of the

instrument

were designed to address Research Questions 4 and 5.

It

can be seen from the data in Table 4.10 that 92% of the
respondents

indicated

that

formal

instruction

to

management on the subject of discipline/discharge did
exist.

Eighty-three percent indicated that the training

was being done by way of in-house seminars.

Additionally,

50% of the respondents indicated that the institution used
external seminars and/or training as a means of providing
management with formal instruction on this subject.

Table 4.10.— Formal instruction to management on disci­
pline/discharge.
Training
in Use

Training
Not in Use

Total

In-house
External
Other
None

11
7
4
1

2
6
8

13
13
12
1

Total

22

16

38

93

Analysis

of the

data

seeking

advice

on

when

charge , approximately

in Table

the

69%

4.11

subject

of

the

indicates

of

discipline/dis­

respondents

with their counterparts at other universities.
obtained

assistance

through

a

that

professional

consulted
About 61%

association.

Roughly 35% consulted with their counterparts in business/
industry or with an outside consultant.

By far, the most

frequently used source by respondents from which to gain
information on this subject was their legal advisor (100%)
or related publications and literature (92.3%).

Table 4.11.— Assistance sought from outside sources.

University counterpart
Business/industry counterpart
Professional associations
Consultants
Legal advisors
Publications/other literature
Total

In

response

to

Research

In
Use

Not
Used

9
5
8
4
13
12

4
8
5
9
0
1

13
13
13
13
13
13

51

27

78

Question

5

Total

regarding

the

degree of satisfaction with current termination policies
and activities,
69.2%

indicated

the respondents indicated the following:
"good

now

with

some

review,"

23.1%

94

responded "no change in policy needed," and 7.7% responded
"termination policy needs upgrading."
Discussion of Questions in Part X;
Experiences With Lawsuits
Responses to questions in Part X of the instrument
provided the researcher with information as to whether the
institution

experienced

lawsuits

f iled

by

nonunion,

noncontractual employees during the survey period, 1979 to
1989.

In instances where the respondent was

provide information for the questions

unable

to

in this part, the

researcher obtained available information from the legal
affairs department at the institution.
An

analysis

of

the

responses

indicated that all but two
more

lawsuits

period.
the

in

Table

institutions had had

filed against

them

4.12

one

or

during the ten-year

The cause of action brought most often against

institutions

Issues

was

mentioned

discrimination.

a

most

claim

a

of

statutory

frequently

were

protection.

age

and

sex

Implied contract and tort claims were the

next highest cause of actions
noted

shown

significant

number

filed.
of

Institutions

combined

also

c a u s e s , most

notably, a combination of implied contract with good faith
and fair dealing,

or a combination of statutory,

contract, and good faith and fair dealing.

implied

95
Table 4.12.— Lawsuits filed and cause of action claimed
from 1979 to 1989.
One or More Lawsuits Filed, 1979- 1989
Yes :

11

No:

2

Cause of Action
Statu­
tory

Public
Policy

Implied
Contract

Good Faith,
Fair Dealing

Other
(Combination)

1

5

5

4

8

Summary
The
questions

research
implicit

questions
in

the

and

the

instrument

findings

were

from

presented

in

Chapter IV.
Conclusions and discussion of the research questions
are

summarized

in

Chapter

inferences from the research,
practice

by

institutions

recommendations
Chapter V.

V.

Interpretations

and

implications for policy and
of

higher

educ a t i o n ,

for further study are: also presented

and
in

CHAPTER V
SUMMARY, CONCLUSIONS, AND RECOMMENDATIONS
Introduction
The nineteenth-century common law doctrine called
employment-at-will
noncontractual

continues

employment

to

govern

relationship

the

nonunion,

in this

country.

The traditional common law interpretation of the doctrine
is

that

absent

provision,

any

either

a

employment

contractual

relationship

is

or

statutory

at-will, and

therefore terminable at pleasure by the employer or the
employee.
Except as modified by state or decisional

law,

the

common law doctrine continues to control the resolution of
all cases of alleged unlawful employment action.

However,

since the Industrial Revolution, there have been union and
employment-law

activities

that

have

afforded

various

protections against arbitrary or unjust discharges.

The

first inroads came in the context of collective bargaining
and

federal, state,

rules.

Then

later,

and

local

government

a variety

of

civil

federal

and

service
state

statutes, beginning with the National Labor Relations Act

96

97
of

1935,

provided

statutory

protection

aimed

at

guaranteeing certain employee rights.
An

on-going

and

employment-at-will

important

doctrine

has

challenge
been

the

to

the

judicial

developments that have had a significant effect on how the
doctrine is

interpreted today.

case law in the early 1900s,
only

on

those

promises

It was

that

they

clear,

based

on

employers were bound

obligated

themselves

to

perform (Adair v United States (1907) and Coppaae v Kansas
(1915), among others).

During those early cases,

courts

presumed that the parties were not held under contract for
any definite duration, and the employer did not have the
burden of proof to establish any just cause requirement
for termination of the employment relationship.
Over

the

last

15

years,

however,

decisional

developments have indicated that courts are struggling to
find ways to meet a perceived need for broader protection
against unjust dismissal.
decisions,

A growing

number

led by California and Michigan,

of court

have resulted

in a substantial explosion of employment litigation with
significant
discussed

in

liability

for

employers

Chapter

II) .

Because

(specific
of

the

cases

costs

to

employers, both in defending a wrongful discharge case and
the potential

liability

for

substantial

bench

and

jury

98
awards, it is important for business to place a premium on
avoiding such lawsuits.
A significant amount of attention has been given to
this subject by scholars who have come down in favor of
abolishing the at-will rule.
for

changes

employees

in

the

against

law

a

significant

strategies made

designed

arbitrary,

discriminatory discharge.
been

They have made suggestions

by

employer

protect

capricious,

At the

number

to

of

unfair,

same time,
recommended

defense

at-will

attorneys

or

there has
defense
aimed

at

maintaining or creating an at-will employment relationship
with their employees.

Suggestions have been made by other

attorneys, v/ho perhaps

do

not

feel

that

the

defensive

strategy is good for employee relations or that it is a
bad legal

strategy,

that employers consider adopting

an

internal binding arbitration procedure to resolve disputes
over employee terminations, thereby keeping a great number
of these cases out of the court system.
Up to this point,

relatively little

is known about

the manner in which employers are responding to the case
law that has been developing since the late 1970s or to
the legal advice.

The relationship between what is being

written by theoreticians and legal advisors in the field
and what is actually taking place in the organization will
be helpful

in

expanding

alternative methods

the

practitioner's

range

for dealing with the discipline

of
and

99

discharge issue.

Accurate data relating to

employment

policies

institution

are valuable

organization.

and

This

procedures
to

available

long-range

information

alternative
to

the

by

the

awareness

and

planning

provides

impetus to develop active, comprehensive, and coordinated
procedures, in view of the continued threats of wrongful
discharge suits by employees.
In a broader and more practical sense, this research
could provide human resource executives with information
about what managerial activities and decisions have taken
place

at other

assist them

similar

institutions.

The

findings

can

in justifying or reinforcing their behavior

related to employment practices in working with nonunion
employees, as they become aware of policies and procedures
used by executives in a similar function.

Having insight

into possible related effects of particular policies and
procedures

on

the

organization

and

future

trends

in

employment practices proved to be useful.
Purpose and Framework of the Study
The purpose of the study was to describe,

identify,

and assess what effect the erosion of the employment-atwill doctrine has had on selected personnel policies and
procedures in Michigan's four-year state institutions of
higher

education,

as

perceived

during the period 1979 to 1989.

by

those

organizations,

100

The

aim

of

understanding

the

research

was

of how representative

to

gain

a

better

institutions

in the

state have responded to the erosion and to the litigation
surrounding wrongful

discharge.

The

period

of

time

studied, 1979 to 1989, was chosen because the precedentsetting

c a s e , Toussaint

Michigan, heard
resulted

Blue

Cross/Blue

Shield

in 1980 by the Michigan Supreme

in what

different

v

has

been

said

interpretation

of

to

the

be

a

of

Court,

significantly

employment-at-will

doctrine.
An

introduction to

and

overview of the

study were

provided in Chapter I.

Included in the chapter were the

rationale of the study,

statement of purpose,

comments about the need for the study,
the

related

outlined,

literature.

and

were defined.

limitations

and a summary of

The

design

and

assumptions

of

the
of

study
the

was

study

Five research questions were also outlined

for examination in the study.
1.

supporting

They

were as follows:

Have there been changes in the institution's

structural organizational

alignment or administrative

responsibility for disciplinary action and d i s c h a r g e ,
especially

in regard

to

(a)

final

authority

and

(b)

staffing level and reporting lines?
2.

Have personnel policies, procedures,

been changed during the ten-year period?

or rules

101
3a.

In

what

manner

has

management

activity

or

behavior changed regarding discipline and discharge?
3b.

What are respondents * attitudes toward wrongful

discharge?
4a.

What changes have taken place in management

training,

and

in what

format

does

management

training

occur?
4b.

From which outside sources or groups does

the

institution seek assistance when dealing with this issue?
5.

What is the degree of satisfaction with current

policies and activities regarding termination?
The

second

literature
Included

chapter

pertinent

was

selected

contained

to

the

research

a

review

purpose
and

of

factual

of

related

the

study.

information

about the concept of the employment-at-will d o c t r i n e ,
statutory protections, and judicial developments affecting
the interpretation of the doctrine.
A

detailed

description

of the

research methodology

and the design of the study was presented in Chapter III.
The population
Michigan's

for

this

four-year

study
state

included

executives

institutions

education who had primary responsibility

of

from

higher

for making

and

revising personnel policies, and who had knowledge in the
personnel

function with

sufficient

information

about

employment relationships between the institution and its
employees.

The

13

executives

in

the

study

were

102

categorized

as President
Human

or Vice-President,

Personnel

or

Relations,

or University Attorney.

respondents had

Resources,

Director

Director
of

In three

of

Employee
instances,

a title other than those listed

above;

therefore, they were categorized under "other," and their
responses included in the data analysis.
Structured interviews during personal visits with
each human

resource

executive were

Questionnaire and Interview Guide
instrument

was

perceptions

that

developed

to

assisted the

conducted

using

(the instrument).

solicit

information

researcher

the
The
and

in describing,

identifying, and assessing the effect that the erosion of
the employment-at-will doctrine has had on the personnel
policies

and

practices

selected

for

this

study.

More

specifically, the instrument helped (a) determine how many
employees at the institution fit the category at-will, (b)
assess what personnel policies and practices were in place
that

could affect the

status

of at-will

employees,

(c)

determine whether personnel policies and practices in 1989
were different from those that had been in place in 1979,
(d) assess perceptions about related management activities
or organizational changes that had changed over the tenyear

period,

and

(e)

assess

respondents' views

and

attitudes about the employment-at-wi11 doctrine and issues
surrounding the doctrine.

103
The

instrument was

composed of

forced-answer

items

along with provisions for open-ended responses.

Responses

to the

evaluate

questions

allowed

the

researcher

to

changes in related personnel policies and procedures

by

comparing what the institution had in place in 1979 with
what policies were in effect in 1989,

and to investigate

what changes management contemplated making in the near
future.
Chapter IV included the data analysis based on the
data collected from the administration of the instrument.
Findings were
implicitly

discussed

in terms

addressed

by way

findings

and

of

research

of question

questions

sets

in

the

instrument.
The

conclusions

of

the

study, interpretation of the research, and inferences from
research

findings

are

presented

in

Chapter V.

This

chapter also includes implications for policy and practice
and suggested areas for future research.
Conclusions and Discussion
Responses to questions in Part I of the

instrument

were designed to provide the researcher with background
information about the respondents and data relating to the
demographics of the workforce.

Responses indicated that

the average years of service at the institution among the
respondents was 11.55 years.

The average years of service

104
in the respondent's incumbent position was 4.81 years.
only one

instance,

position and
assistance

to

from

administrators.
service,

both

where the respondent was

the
two

institution,
other,

the

more

In

new to the

researcher

tenured human

sought

resource

The outcome of the respondents ' years of
at

the

institution

and

in

the

human

resources profession, confirmed that those individuals
providing

information

for this

study

fit the

initial

criteria set forth.
Responses to questions in Part II of the instrument
required further analysis by the researcher because of the
variation
respondents.

of

employment

relationships

revealed

by

The questions were initially designed by the

researcher based on a review of the literature and current
research addressing the concern about a definition of an
at-will

employment

a just cause

relationship versus

contractual employment relationship.

Respondents

or

easily

answered questions regarding (a) number of employees,

(b)

number of unionized employees, and (c) number of employees
with

an employment

employment.
Item

4

of

contract

specifying

the

duration

However, the remaining employees
the

instrument

were,

in

some

listed

of
in

instances,

identified by respondents as just cause employees only, or
a combination of at-will and just cause employees.
created

difficulty

in

obtaining

responses

to

This
future

105
interview questions because respondents were unsure about
how to respond to the questions.
To delineate better the variation in responses,
researcher

categorized

employees

counted

in

Item

4

the
as

follows:
1.
with

Combination of at-will and just cause employees

no

clear

policy

or

provision

specifying

the

relationship.
2.

Combination of at-will and just cause employees

with a very clear distinction by way of a policy statement
as to which employees were at-will.
3.

Just cause employees only.

4.

At-will employees.

An

analysis

of

the

data

showed

three

institutions

fitting into the above-listed category 1, with a notation
that two of the three institutions were in the process of
moving to category 2.

There were two respondents fitting

into the above-listed category 2.
that

took

a

firm

relationship,
em p l o y e e s .

to

change

the

employment

creating a specific category of at-will

This

period studied.

position

These were institutions

change

occurred during

the ten-year

Three of the respondents indicated that

the employees fit into the above-listed category 3.

One

of the institutions had established continuing appointment
letters, whereas the other two had concluded that employee
handbook language or implied contracts with employees

106

precluded any type of at-will relationship.

However, one

of these respondents indicated that the institution was in
the

process

of

moving

to

category

1.

Five

of

the

respondents indicated that the employees fit category 4.
Some

of

these

institutions

statements

or

formal

maintained

that

an

had

no

written

policy

handbook covering the group but
at-will

employment

relationship

existed.
Having an analysis of the above

information helped

lend greater insight into the variations of responses to
the questions posed in Research Question 2, regarding the
significance of change in personnel policies and practices
during the

ten-year period.

It

also

helped

to

better

understand why the institution either had or did not have
particular personnel policy provisions.

Having provided a

breakdown of the responses to these preliminary questions,
the

researcher

now

turns

to

conclusions

about

specific

research questions posed in this study.
Research Question 1
Have there been changes in the institution's
structural organizational alignment or administrative
responsibility for disciplinary action and discharge,
especially in regard to (a) final authority and (b)
staffing level and reporting lines?
Overall,
in the
or

the researcher found no significant change

institutions'

administrative

structural

organizational

responsibility

for

final

alignment
authority

107

related to

discipline

period studied.

or discharge

during

the

ten-year

Although there was no significant change

during the ten-year period,

from responses

a summary

presents findings that are similar to what was described
in the literature; i.e., authority for disciplinary action
should be centralized and should rest most often with the
immediate-supervisor

level

or

higher.

This

was

the

procedure in place at least 70% of the time as reported by
the respondents.

According to the respondents,

the same

was true for final authority as it related to discharge.
In at least 80% of the cases,

discharge

decisions were

made at the department-head level or higher.
d a t a , in

fa c t , show

President

being

the

the

level

final

of

The summary

President

authority

twice

as

or Viceoften

in

reported

in

discharge matters as in disciplinary matters.
Although

insignificant

changes

staffing levels and reporting lines,

were

discharge practices

seemed to reflect management's appreciation of the risks
involved

in

terminating

an

employee.

It

appears

from

comments made that respondents were taking steps to avoid
legal problems from discharged employees.

One respondent

noted that the institution used "outside counsel to review
sensitive cases" and required senior personnel department
staff to "be involved in the review of and planning for
all

dismissals."

"No

manager

may

fire

anyone

on

the

108
spot,"

reported

respondent

another

indicated that

respondent.
"although

Yet

there

another

is nothing

formally written, supervisors and managers know that they
cannot act without review of the case by the personnel
director."

Other

protective

measures

reported

by

the

respondents were:
* Used severance agreements to arrange for release of

all

claims

against the

institution by discharged

employees.
* Increased the amount of documentation required from
supervisors who handle incidents of discipline.
* Before firing,

conducted a detailed review of all

relevant facts, including consistency of treatment.
* Listened to the employee's side of the story.
* Retained

legal

situations

or

counsel
required

to

advise

on

a personnel

discharge
officer

to

approve all decisions to terminate.
In conclusion, it appears that institutions will
continue

to

be

more

cautious

in

terminating

their

relationships with employees.
Research Question

2

Have personnel policies, procedures,
changed during the ten-year period?

or rules been

There has been continuing controversy as to whether
language

confirming

the

at-will

status

in

the

organization's personnel documents will reduce exposure to

109

potential legal cases involving wrongful termination.
Employer defense attorneys suggest ways in which employers
can minimize their involvement in a wrongful termination
suit and maximize their chances of winning one, including
a critical review and revision of all relevant personnel
documents.

Other legal scholars and practitioners are of

the opinion that "language confirming the at-will status
of the employment relationship is of no legal significance
and

can

only

devastating

serve

to

alienate

employees

and

exert

impact on morale98 (Steiner & Dabrow,

The researcher devised two sets of questions,

a

1986) .

based on a

review of the literature, designed to solicit responses to
what changes in personnel policies and practices,

if any,

had occurred during the ten-year period.
A

t-test

statements
policies

in

was

applied

Part

supported

the

data

reported

represented

in place

during the ten-year period.
to be

the

I I I , which

and procedures

determined

to

at the

for

personnel

institutions

The result of the t-test was

significant.

The

findings, as w e l l .

descriptive
Responses

to

data
some

questions demonstrated action taken during the ten-year
period

in the

expected

direction,

whereas

summary

from

other responses presented findings that differed from the
literature

and

that

did

expected by the researcher.

not

occur

in

the

direction

110
The

responses

showing

change

in

the

direction

expected by the researcher included those policies related
to (a) use of the word "permanent" in job advertisements,
(b) incorporating an at-will disclaimer on the employment
application,

(c)

"probationary"

use

of

during

the

the

words

"permanent"

employment

interview

or
and

orientation process, (d) making reference to job security
or unlimited advancement, (e) use of an at-will disclaimer
in offer

letters, (f ) reiterating the

during the employment relationship,

and

at-will
(g)

policy

requiring

a

receipt for the handbook.
Policy
direction

changes

that

included the

were

made

reference

in

to

a

an

unexpected

"probationary"

period, the development of a layoff procedure, and use of
a discharge interview, which were formalized at different
institutions
institution
initial

during
that

the

used

appointment

an

ten-year

period.

at-will

statement

letter

never

used

it

Another
with

the

again

for

continuing appointments, showing a change in an unexpected
direction.
With

regard to responses to

questions

in Part

IV,

which referred to written policies/provisions in handbooks
and other related documents, there

again were

strong

indicators of change that had occurred; some changes were
in the expected direction, whereas others occurred in the
unexpected

direction.

The

most

significant

changes

Ill
observed

in the expected direction were

statements
"not a

regarding

contract"

(a)

written

statement,

(c)

responses

to

clause,

(b)

"at-will"
provision

for

changing

contents, (d) statement of discharge for any reason,

and

(e) having an informal complaint procedure.
Changes that had occurred in the unexpected direction
were in areas of probationary periods,

job security,

and

the formal written grievance procedure, which allowed for
a hearing of disciplinary cases.
In instances where the

institution had

imposed new

policies related to probation and job security, it was not
done for the entire nonunion,
group.

noncontractual

employee

Rather, it was set forth for employees who were in

the nonunionized,

noncontractual group, but excluded from

the executive, managerial, and higher-level employees.
f a c t , two
employees

institutions
who

were

specifically

at-will,

and

three

acted

to

In

define

institutions

in

varying stages indicated that the institution was in the
process of setting forth policy statements.

Other changes

reported by respondents included:
* Reviewed and rewrote relevant documents to remove
wording that could be construed as a guarantee of
permanent employment.
* Made sure that employee performance evaluations
were

complete

and

precise

enough

to

support

allegations about an employee's performance.

112

* Made sure supervisors were using the disciplinary
system that was in place and were keeping a record
of all warnings and offenses.
Research Question 3
a.

In what manner has management activity or
behavior changed regarding discipline and
discharge?

b.

What are respondents » attitudes toward wrongful
discharge?

From

a

question,
the

summary

to

research

this

the greatest amount of increased effort during

ten-year

period

had

documentation, analysis
management.
spent

responses

of

on

clearly
and

been

in

the

investigation, and

areas

advising

Other significant additional time had

development

training.

The

least

of

policies

amount

of

and

been

education

increase

was

of

and

with

the

development of committees.
The increase of documentation and analysis/investiga­
tion was noted by respondents to have included areas of
disciplinary action, employee evaluations or meetings that
involved constructive criticism,
which

a

policy

employee,
which

the

procedure

and any meeting
employee

potentially
indicated,

or

was

clarified

requested by

sought

sensitive

any communication

specific

situation.

with respect to advising,

the

for

that

the

employee

information
One

in

on

in
a

respondent

"all

managers

113
are being told that documentation is a must" and that "the
first thing we do in a discipline or discharge case
look

for the documentation."

Another

is

indicated that

"managers don't like to write people up, so they look to
personnel to help them decide what to say and how to say
it."
Comments made by respondents in the area of education
and

training

included

the

need

to

"make

sure

that

performance standards are well outlined and communicated"
and

that

line

managers

use

evaluating subordinates."
process

has to meet

"objective

criteria

when

"The performance appraisal

standards necessary

for the

future

defense of personnel action," reported another respondent.
The

responses

respondents'

to

the

attitudes

research
toward

question,

wrongful

"What

are

discharge?"

demonstrated a clear understanding of the costs associated
with wrongful discharge suits.

Perhaps costs and fear of

employee

the

s u i t s , those

being

number

one

and

two

concerns among these administrators, lend understanding as
to why the respondents thought wrongful discharge limited
man a g e m e n t 's discretion and caused significantly more
paperwork.

Analysis of the literature would agree with

this finding.

The literature indicated that an employer's

best defense strategy has depended largely on the ability
to

articulate

reasonable

criteria

and

to

present

114
associated

documentation

regarding

various

personnel

actions and activities.
Another viewpoint expressed by

respondents

was

the

notion that increased courtroom activity had resulted in
greater

job

employees.

security
One

for

respondent

nonunion,
indicated

noncontractual

that

even

if

the

personnel documents contain language reflecting an at-will
employment relationship,
to

go

in

eliminating

the institution has a "long way

oral

representations

which

could

create a legitimate expectation of permanent employment."
Another respondent

noted

that

"supervisors

are

the

key

to ensuring an at-will status, but they need to understand
the reasons why it's important."
The

statement

receiving

issue of ambiguity.
issue is ambiguous.

the

least

support

was

the

Most respondents disagreed that the
The researcher attributes these views

to the knowledge base among respondents on the wrongful
discharge issue.

Nearly 62% of the respondents believed

that they were "well informed" on the issue.
this

issue was

not viewed

as ambiguous

to

Therefore,
respondents;

they appeared to have a clear understanding of the issues
involved.
Responses to the statements "courts were nit-picking"
and

"courts

should

temper

their

involvement"

from the researcher's point of view,
was

e x pected.

Summary

of

these

received,

less agreement than
responses

presents

115

findings

that

differ

from the

literature.

A

possible

explanation for this might be due to an inherent belief
among institutional representatives that employees in the
public sector, unlike those in the private sector,
certain

protection

concerning

Furthermore,

employees

constitutional

continued employment.

enjoy
their

in the

public sector have had a history of challenging the right
to their jobs through the due process clauses of the Fifth
and Fourteenth Amendments, which prohibit deprivations of
either life, liberty, or property, without due process of
law.

The respondents may have believed that the use of

the judicial system is an inherent right and that courts
should be involved in these disputes.
Research Question

4

a.

What changes have taken place in management
training, and in what format does management
training occur?

b.

From which outside sources or groups does the
institution seek assistance when dealing with
this issue?

The

literature

frequently

cites

management training on this issue.
Research

Question

4 suggest that

agreement with this point.

the

importance

of

Findings related to
institutions

are

in

Formal management instruction

on the topics of discipline and discharge was taking place
at 92% of the institutions, with 83% of the training being
done on an in-house basis.

External seminars were used

116

for approximately 50% of the training.
comments

regarding attitudes were

Furthermore, when

sought as part

of an

earlier research question (responses to questions in Part
IX), at least five respondents commented that there was a
"need for much more management training and education" on
the wrongful discharge issue.

This would indicate that

there

is

is

agreement

that

it

essential

to

inform

supervisors and interviewers of the binding nature of oral
comments

as

well

as

bases

for

discharge

and

terms

of

employment.
A summary of responses to the second part
research

question

regarding

which

used for assistance with this
"legal

c o u n s e l ,"

publications
confirms

the

regulatory
Given

the

and

whereas

92%

literature.

notion

that

developments
frequent

This

in

were

100% used

used

related

strong

response

abreast

affect

changes

showed

also

keeping

may

sources

outside

issue

of this

of

legal

personnel
judicial

and

decisions.
d ecisions,

statutes, and regulations, the status of the doctrine and
the defenses used in these cases in Michigan need to be
monitored.
comment,

As
"more

cited

by

a

respondent

time

is

required

to

in

an

keep

earlier
up

with

legislation and court cases."
There

also

appeared

to

be

considerable

respondents ' counterparts at other universities,

use

of

as well

117
as professional
issue.

associations, when

dealing with

Sixty-nine percent of the respondents

that they called on

other human

"sister" institutions.
activity

can be

this

indicated

resource executives

at

The researcher has found that this

particularly helpful

earlier in this chapter,

because,

as

noted

the employment relationship

in

public sector employment is unique.
Research Question 5
What is the degree of satisfaction with current
policies and activities regarding termination?
Approximately

8%

of the

respondents

indicated

that

"termination policy needs upgrading," whereas nearly 70%
said the policy was "good now with some review."

These

responses seemed to conflict with earlier comments made by
respondents about the need to (a) improve how to deal with
terminating problem

employees,

pleasure" with employees,

last

statement

was

become

more

"at

the

(c) have more activity go to a

higher level of management, and
The

(b)

(d) create new policies.

repeated

by

three

respondents.

These earlier comments communicate that there is, in fact,
a need for an upgrading of policy.

The fact that 100% of

the respondents looked to legal counsel for assistance in
handling discipline and discharge reveals some question as
to

the

amount

of credibility

termination policy.

placed

in

the

existing

118
Interpretations and Inferences
The

summary

institutional

of

responses

policies

and

reflecting

procedures

change

for

in

handling

discipline and discharge presents findings similar to
those of the literature.
institutional

According to the population of

decision makers

from Michigan's

four-year

state universities, the ten-year period between 1979 and
1989 resulted in significant change related to personnel
policies,
discipline

pro c e d u r e s ,
and

and

discharge

rules;

time
and

activity

devoted

to

to

management

training and education; and finally, overall concern with
the wrongful

discharge

issue.

The

following

points

further highlight these changes.
1.

To address the concern of a definition of at-will

employees, the
four

researcher

categories:

(a)

employees

with

cause

specifying the

placed

employees

combination
no

clear

relationship,

(b)

of

into

and

at-will

policy

one

of

just

or

provision

combination

of at-will

and just cause employees with a very clear distinction by
way of a policy statement as to which employees are atwill,

(c) just cause employees, and (d) at-will employees.

The categorization proved useful in understanding the
variation of responses in further research questions.
2.

There

institutions'

was

no

structural

significant

change

organizational

in

alignment

the
or

administrative responsibility for final authority related

119

to

discipline

studied,

as

discharge

shown

statistical
findings

or

by

test.

that

the

A

show

during

the

results

summary

of

of

authority

ten-year
the

chi-square

responses

for

period

presents

disciplinary

and

discharge action was centralized and conducted at a higher
level of authority, which was in line with recommendations
from the literature.
No substantial

changes were reported in staffing

levels or reporting lines.

Discharge practices reflected

m a n a g e m e n t 's

for

appreciation

risks

the

involved

in

terminating employees.
3.

There

was

significant

p o l i c i e s , p r o cedures, and
p e r i o d , as

reflected

Responses

to

seek

with

data

showed

numerous
regard

significant

in

rules
the

the

change

in

during

outcome

question
to

change

the

of

in the

ten-year

the

specifically
wrongful

personnel

t-test.

devised

discharge

expected

to

issue

direction.

These findings suggest that the human resource executives
recognized the erosion of the doctrine and the
review and revise
that

they

related personnel

accurately

set

forth

policies
the

procedures to which the institution

to

need

to

ensure

practices

and

is willing to be

committed.
4.

There

management

time

has

been

devoted

a
to

significant
discipline

increase
and

in

discharge

120
activity during the ten-year period.

The greatest amount

of

of

increased

effort

was

in

areas

documentation,

analysis/investigation, and advising management.
ment

Develop­

of related personnel policies and education

training were also given increased effort.
indicate
effect

that

the

erosion

of

the

These findings

doctrine

on the way the respondents

and

has

handle

had

an

employment-

related matters at the institution.
Furthermore, costs and fear of employee suits, which
were the top two concerns expressed by respondents, teamed
up with the increase in paperwork and limited management
discretion.

This finding indicates that these executives

may view discharged employees as potential claimants and
are looking for ways to reduce the risk of litigation and
to increase their chances of success if a claim is filed.
5.

A

great

deal

of

management

training

taking place, much of which has been internal.
has

also

seminars

taken

advantage

on this

issue.

of

The human

rely heavily on legal counsel
the wrongful
their

discharge

counterparts

at

external

Management

workshops

resource

has

and

executives

and literature related to

issue.
"sister"

They

also

consult

institutions

relationships with professional associations.

and

with

foster

Monitoring

the frequent changes in judicial decisions, statutes, and
regulations would

indicate that these

executives

are

been

121
concerned

about

the

status

of

the

doctrine

and

the

defenses they can use as Michigan employers.
6.

The

respondents

current termination policy,

noted

satisfaction

with

the

with some review necessary.

The researcher questioned the consistency of the responses
to this question, with earlier comments regarding a need
for change

in policies.

The accumulation

of responses

throughout the entire questionnaire would lend itself to
continuous review and update of related personnel policies
and procedures.
Implications for Policy and Practice
Implications
preliminary
nature.

are

difficult

to

make

study, which was primarily

However,

the

based

on

this

investigative

following recommendations

in

present

some general suggestions for human resource executives.
1.

Respondents

authority

rested

with

indicated
the

that

immediate

department head 23% of the time.

final

discharge

supervisor

or

It is this researcher's

suggestion that if the institution believes that authority
needs to rest at that level, the institution should build
in some protective measures to guarantee that unlawful or
questionable discharge situations are being avoided.
example,

For

the institution might specify a ruling that no

supervisor has

the

authority to

fire without

clearance

122
from

the

human

resources

director

or

university

legal

counsel, in advance of the action.
Additionally, the

researcher

suggests

that

all

personnel given this authority be required to participate
in

extensive

training

terminations.

These

following reasons:

on

procedures

suggestions

are

for

effective

made

for

the

(a) the human resource executive is in

the best position to judge whether the institution, by way
of an institutional representative or a personnel handbook
or policy statement, has created an implied contract that
must be addressed before any termination activity takes
place;

(b) the human resource executive will have copies

of any accumulated documentation for disciplinary action
previously taken, which could be useful in the decision to
terminate.

The

human

investigate whether

any

resource

executive

extraneous material

could be used by the terminated
institution

at a later

date;

employee

(c)

the

will

also

exists

that

against the

human

resource

executive knows the history of what the institution's past
practice has been regarding treatment of similar
Courts

have

ruled

past

practice

involving

cases.

terms

and

conditions of employment consistently treated in the past,
as

a

form of

employment

agreement

between

the

parties

giving rise to certain employee expectations considered to
be a contractual obligation;

and

(d)

since

it

is known

that Michigan courts are likely to carve out exceptions to

123

the at-will doctrine because of a public policy exception,
it makes good sense for an "outsider" to assess whether
there was any encouragement for the employee to perform an
illegal act, or whether the employee was prohibited from
exercising a statutory right.
2.

It

executive-level

appears

there

is

strong

administrators that there

consensus

is a need

among

for

adequate personnel policies, procedures, and practices for
an effective

employer-employee

relationship.

While

the

researcher understands the importance of establishing
rules

by

which

to

operate,

the

suggestion

here

is

to

attempt to operate with fewer descriptive policies so as
to build in more flexibility

in dealing with day-to-day

workplace activity and employee relationships.

While

consistent application of policies and fair and equitable
methods

of

dealing

with

employees

are

becoming

increasingly important, it is the recommendation of this
investigator

that

the

focus

on

dealing

with

personnel

should be from the standpoint of: How can the supervisor
set

forth

expectations

and

encourage

employees

to meet

those goals? Furthermore, How can the supervisor outplace
a nonperformer who is not meeting expectations?

The focus

here would be on setting forth performance standards and
implementing
appraisal

an

adequate,

system,

well-formulated

instead

of

a

large

performancevolume

of

124
descriptive, binding personnel policies.
appraisal

system

would

be

designed

The performanceto

review

past

performance when considering what future action to take.
It would also notify the employee of problems in his/her
performance.

Attention might also be

alternatives to termination,

focused

on other

such as early retirement

proposals, severance agreements, outplacement services, or
department transfers.
3.

It

is

the

researcher's

institutions

view

the

interviewers

as

critical

responsibility.

a

binding

assurances.

Supervisors

institution's policy
it

can

applicants
trained

nature
need

component

of
to

exercised
employees.

by

them

performance.

support
Any

clear

on what

when

Supervisors

job

recognize
and

the
oral
the

status

dealing

should

be

that

and

their

its at-will

so

with
well

institution's performance-

system so that they are

to

of

promises
be

is regarding

in how to use the

appraisal
enough

be

and

supervisors

They must be trained to

potentially

that

of

training

recommendation

allegations
disciplinary

complete

about
system

the
that

and precise
employee's
requires

a

specified number of warnings, written or not, needs to be
done correctly by well-trained supervisors even though the
human resource executive reviews them for the employee's
signature, relevant facts, and consistency of statements.

125
4.

The researcher recommends that the human resource

executives

have

access

to

current

literature

and

to

specialized labor-law attorneys who can provide them with
up-to-date case law and alternative defense mechanisms to
aPPly

to

wrongful

employment
discharge

litigation.

cases,

the

As

there may

be

courts

some

hear

surprising

defenses available for the institution to use in defending
its case.
the time

Human resource executives should also be given
it takes

to

read

pertinent

materials

or to

participate in workshops/seminars that address the current
status

of this

topic.

Furthermore, all human

resource

executives should familiarize themselves in a general way
with

the

legislation,

decisions.

The

focus

institution

faces

court

rulings,

should

should

a

be

and

administrative

on what

wrongful

liability

discharge

the

case

be

filed by an at-will employee.
Suggested Areas for Future Research
Based on findings from this investigative research,
the conclusions,

in addition to other implications

the data, may provide a catalyst for further study.
the

research

answered,

questions

the

following

related

to

this

recommendations

While

study
for

from

were

future

research are presented as a result of this study.
1.
four-year

This study included the population of Michigan's
state

institutions

of higher

education.

The

126
degree to which these

findings can be generalized to

business and industry within the state is questionable.
Therefore,
industry

investigation of practices in business

should be

versus

public

addressed.

entities

A comparison

could

result

and

of private

in

some

very

interesting findings.
The findings from this study determined whether

2.
or

not

there

policies

had

and

been

significant

procedures

investigated.

While

during

the

change
the

descriptive

in

personnel

ten-year
data

period

provide

a

foundation from which to speculate about a cause-effeet
relationship,
necessary.
judicial

additional

and

more

detailed

analysis

is

For example, the relationship between specific
decisions

and

resulting

change

in personnel

policy, or the institution's history of employee lawsuits
affecting particular policy changes, would be interesting
to study.
3.

This

study focused on organizations that had a

combination of union and nonunion workers.

It would be

interesting to

issues

investigate personnel policy

nonunion work environment for comparison purposes.
researcher

believes

differences

that

in the way

there

would

in which

be

in a
This

significant

a nonunion

employer

handles the at-will employment relationship.
4.

The

results

of

the

study

revealed

that

institutions had adopted several different approaches to

127

personnel policies,
ten-year
these

period.

changes

study,

Further

assisted

future wrongful
this

practices,

but

and procedures during the

investigation

the

institution

as
in

to

defending

discharge case was beyond the
it

is

certainly

a

topic

whether
a

scope of

worth

further

research.

If, in fact, written protections constitute an

important

element

litigation,
over time,

of

evidence

in

wrongful

discharge

it would be helpful to investigate whether,
specific policies helped the

institution win

wrongful discharge lawsuits.
5.

provided

Respondents

feedback

on

several

different approaches that had been taken during the tenyear period, including the "hard-line” approach of issuing
a written disclaimer of job security to at-will employees.
It

would

be

worthwhile

to

investigate

whether

this

approach has had a deleterious effect on employee morale
and

productivity,

or

on

the

institution's

exposure to union vulnerability,
job insecurity.
whether

a

potential

resulting from employee

It would also be interesting to determine

contract

disclaimer

had

an

effect

on

the

institution's ability to recruit experienced personnel
with unique skills.
Conclusion
This chapter presented a brief overview of the study,
the

findings

and

conclusions

of

the

study,

and

128

interpretations

and

findings.

chapter

This

implications,

and

implications
also

suggested

from

included

areas

for

the

research

recommendations,
future

research.

The recommendations discussed in this chapter are
for

future

consideration by

institutions

ideas

concerned with

the continuing controversy surrounding the erosion of the
employment-at-wi 11 doctrine and what action, if any, they
should

consider taking to protect the

interests of the

institution.
Because the issue is complex and because employment
security poses both payoffs and risks, institutions should
embark on a rigorous analysis before developing an at-will
policy.

Each institution and each employment termination

presents

unique

applications

of

circumstances

that

must

p r o cedures.

Employees

guide
will

the
judge

management by what it does, not only by what it says or
writes.
exist

What
and

are

is

important

fairly

and

is

that

personnel

consistently

policies

administered.

Prudent employers will do well simply to act in good faith
and to adhere to any policies they devise.

APPENDICES

APPENDIX A
THE QUESTIONNAIRE AND INTERVIEW GUIDE

129

TERMINATION PROCEDURE
Q U E S T I O N N A I R E AND I N T E R V I E W G U I D E

DA T E
CODE,

PART I

The
r e s p o n s e s to
this
p u r p o s e s only.
Neither
i d e n t i f i e d in a n y w a v .

What

is y o u r

or

Vice President

______ P e r s o n n e l

or

H uman Resources

Hew

long

(olease

have
have

you
you

will be used
for res e a r c h
nor the U n i v e r s i t y will be

or " p o s i t i o n " "

______ P r e s i d e n t

______O t h e r

PART II

"title"

Questionnaire
the respondent

______ E m p . R e l a t i o n s
Director

Dir .

Univ.

Attorney

s p e c i f y * ________________________________________________

been
been

emoioyec
in v c u r

at

the

cur-ent

U n i v e r s i t y ? ________

How

Ions

p o s i t i o n " 1________

1.

A p p r o x i m a t e l y h o w many emoloyees, full
the U n i v e r s i t y e m p l o y (exclude adj u nc t

2.

-DC - o : ma t e 1 v n o w
u n i o n c o n t r a c t or

3.

A p p r o x i m a t e l y h o w many empl oy ees h a v e an emc lcv m e n c cont- aot
or a w r i t t e n
l e t t e r of a c p o i n t m e n t s p e c i f y i n g t n e d u r a t i o n
of t h e e m p l o y m e n t o e ' i o o ? ________

4.

A c o r o ;<im a t e 1 v h o w m a n y e m p l o y e e s a r e
no t c o v e r e c u n d e r
n u m b e - s £ or 3 a b o v e , i.e., t h e y a r e n o t
covered by a
b a r g a i n i n g u n i t c o n t r a c t nor d o t h e y h a v e a
l e t t e r of
appointment which specifically outlines
t h e l e n g t h of
e m p 1oyrrent ? ________

and p ar t - ti m e, ooes
f a c u l t y ) ? ________

many University emplovees are
a s s o c i a t i o n a g r e e m e n t ? ________

ccve-ed

tv

a

130

PART III

The
following
statements
apply
to n o n - u n i o n
employees.
The
statements
represent
possible policies/procedures
used
by the
U n i v e r s i t y for t hi s gr oup . P l e a s e ind i c a t e
w h i c h n u m b e r (1-6) is
c o r r e c t for le tt e r s A and B, r e p r e s e n t i n g m e t h o d s u t i l i z e d by the
U n i v e r s i t y wi t h t h i s e m p l o y e e group.
1=
2=
3A=
5=
6=

Almost always
S o m e of the time
Rarely
Never
D o n 't k n e w
Not a p D 1 icable

of

the

word

A= Used
3= U s e d

"permanent"

in
in

1979
1989

1.

Use

in a d v e r t i s e m e n t .

2.

In clude a w r i t t e n d i sc l a i m e r on tne e m p l o y m e n t
s p e c i f y i n g a t - w i l l r e l a t i o n s h i p . A ________
B

3.

U s e the w o r d s " p e r m a n e n t " or " p r o b a t i o n a r y "
t h e e m p l o y m e n t i n t e r v i e w . A __
_

e
A.

5.

reference

to

job

5.

9.

application

ZJ1ZZZZ

security

or

during

unlimited

the

advancement.

____

6.
Include a w r i t t e n discl aime r
r e l a t i o n s h i p f or e m p l o y e e s w i t h an
A
B
7.

___________

purine

U s e the w o r d s " p e r m a n e n t " or " p r o b a t i o n a r y "
o r i e n t a t i o n p e r i o d . A ___ ___
B
I ___
Make
A
B

A
E

specifying at-will
"c'far l e t t e r " .

H a v e a w r i t t e n a t - w i l l d i s c l a i m e ’- for
sign wnen hired; A
_____ _
■ B, I
I __
R e i t e r a t e the a t- w i l i p o l i c y
relationship. A
__
B
Require

a written

receipt

throughout

for

the

ail

the

new

employees

employment

handbook.A
B

to

131

10.

F-e-discnarge -sview whereby
f o r d i s c h a r g e . A _________

management

articulates

reasons

E
PART IV

T h e f o l l o w i n g s t a t e m e n t s r e f e r to w r i t t e n
p o l i c i e s / p r o v i s i o n s in
a
h a n d b o o k or
any o t h e r d o c u m e n t
f or e m p l o y e e s
in thi s group.
Please
r e s p o n d "yes"
or "no" to
th e s t a t e m e n t s
and ind i c a t e a
response
to t h e
date
<A=
1979,
B=19B9). Please
provide
the
interviewer with
applicable handbooks and/or
documents referred
to in t h i s section.

1.

W r i t t e n c l a us e s p e c i f y i n g the e m p l o y m e n t - a t - w i l l
r e l a t i o n s h i p in h a n d b o o k or o t h e r d o c u m e n t . A _______
b

2.

W r i t t e n s t a t e m e n t that the
co n t r a c t of e m p l o y m e n t . A

handbook
__

is

not

“ I” _

a

B” “ __
3.

Provision providing for
or o t h e r d o c u m e n t . A ____

B
A.

"just

cause"

discharge

in h a n d b o o k

II

Use
of w o r o s " p e r m a n e n t "
e t h e r d o c u m e n t . A _______

or

"p- o b a t i o n a r y "

in h a n d b o o k

B_I___
5.

R e f e r e n c e to jo b s e c u r i t y or u n l i m i t e d
h a n d b o o k or o t h e r d o c u m e n t . A ______

advancement

ir

S t a t e m e n t of e m p l o y e r s ' a b i l i t y to c h a n g e
contents
r e g u l a r b a s i s , a s d e e m e d a p p r o p r i a t e . A ______

on

B_I_I_
fa.

b I I ___
7.

L i s t of c o n o u c t
l e a d i n g to d i s c i p l i n e
h a n d b o o k or o t h e r d o c u m e n t . A _______
e

S.

cr

Discharge

I _ I ____

W r i t t e n s t a t e m e n t that the e m p l o y e e
a n y t i m e fo r a n y r e a s o n , A _ _
__

mav

be

discharged

B II_
9.

Info-mal.

nor-written

complaint

procedure.

A

B
10.

Formal

written

complaint

ir

procedure.

A

E

____

at

c~

132

11.

Fcrnal

written

12.

P r o v i s i o n t h a t d i s c in 1 i n a r y m a t t e r s
c o m p l a i n t or g r i e v a n c e p r o c e d u r e . A

13.

Have a written
procedure. A

b”

cievance

orocsdure.

progressive
__

or

A _______

are subject
___

corrective

G r i e v a n c e p r c c e a u r e ' s f i n a l s t e p is w i t h
a r b i t r a t o r or o b j e c t i v e p a * t y . A _______

15.

T h e a r b i t r a t o r cr
b y the U n i v e r s i t y

of

cisciplinary

the

an

outside

o b j e c t i v e p a r t y is d e c i d e c
a n d t h e g r i e v a n t . A ______

eC
The cost
A ______

the

II”

1A.

16.

to

arbitrator

is b o r n e

upon

jointly

“ __

equally

by

the

parties.

B
PART V

I

MANAGEMENT
DURING THE

I N V O L V E M E N T IN D I S C I P L I N E
PERIOD 1979-1989:

U s i n g t h e lis t b e l o w , i n d i c a t e w h i c h o f
in 1 9 7 9 e x e r c i s e d f i n a l a u t h o r i t y cn:
disciplinary

tne

AND

following

a c t i o n ________________________
( i n d i c a t e n u m b e r <s ) )

d i s c h a r g e _______________________
(indicate number(s))
1.

p resicent

or

Vice

2.

Personnel

or

Human

2.

Immediate

Sucerviso-

A.

Department

Head/Manager

5.

University

Attorney

6.

Outside

7.

= "esident
Resources

Di-ectcr

Attorney

External

Part/

in G r e i v a n c e

DISCHARGE

ProtECL'e

individuals

133

8.
Using

the

Other

list

(please

e x p l a i n ) __________________________________

above, indicate whicn
f i n a l a u t h o r i t v on:

of

the

following

individuals

in 1 9 B 9 e x e r c i s e
disciplinary

a c t i o n ________________________
(indicate number(s))

d i s c h a r g e ____________________________
( i n d i c a t e n u m b e r Is))

PART VI

PART VII

II

STAFFING, TITLES, T IME DEVOTED
D U R I N G T H E P E R I O D 1979-1 989 :

TO DISCIPLINE/DISCHARGE

A.

C h a n g e in s t a f f i n g l e v e l s a n d / o r r e p o r t i n g l i n e s f o r h a n d l i n g
d i s c i p l i n e and/or discharge:
Y e s _________
N o ______
(if yes, p l e a s e p r o v i d e the i n f o r m a t i o n b e l o w )
,

New

Position:

Mew

Reporting

(if

yes,

B.

T i t l e ____________________________
Procedure

please

(structural

change)

Y e s ______

Nc

e x p l a i n _____________________________________________

U s i n g the n u m o e r s 1-6
b e l o w , i n d i c a t e w h a t a d c i t i o n a l time.
i-c a n y , h a s b e e n
d e v o t e d to d i s c i p l i n e / d i s c h a r g e b y t h e
m a n a g e m e n t s t a f f b e t w e e n 1 9 7 9 - 1 9 8 9 in t h e f o l l o w i n g a r e a s :

1.

No

change

5.

0-9Y.

(small

amt.)

55-50’
/. ( l a r g e

5.

5 0 - f u l 1 t ime
(significant

6.

D o n 't k new

Documentation

5.

Advi sing

A n a 1y s i = / I n v e s t .

6.

New

7.

ECuc/Trainir.g

3.

10-5^’
/. 1m c c e r a t e

1.

2.

3.

9.

P o l i c i e s / p 'cc.

amt)

_

Mgr

amt . )

amt)

C-isntation

134

4.
PART VIII

Committee

B.O t h e r

C-

Sa t i s f a ct i o n with current
t e r mi nation activities:

1.

Terminations

Need

2.

No

Policy

Change

In

N ew ,

Increased

D.

Management's
(S el e c t One)

E.

1.

Takes

2.

Is R e s i s t a n t

3.

Regards

Formal
(checy

Matter

as

and

related

3.G o o d N o w W i t h
R e v i e w _______

N e e d e d ________
Needed

( e x p l a i n ) ___________________________

o J d i s c :p 1 : r e /c i s c h a r g e :

Seriously
and

Defensive

nothing

to

be

worrier

I n s t r u c t i o n To M a n a g e m e n t
all t h a t a p p l y '

on

about

D i s c ip 1 i n e ' D i s c h a r g e :

1.

N o n e ____________________________________________ ______

2.

In-House

Seminars

and/or

Training

______

3.

External

Seminars

and/or

Training

______

a.

0 »bgr-______________________________________________________
(□lease

F.

policy

U p g r a d i n g __________

Activity

view

termination

Helc

from

Cutside

specify)

Scurpes:

1.

Counterparts

At

Other

Universities

______

2.

Counterparts

In O t h e r

B u s ■'I n o u s try

______

3.

Professional

Associations

______

135

PART IX

III

A.

B.

**.

Consultants

5.

Leqal

6.

Publications

7.

O th e r

Advisors
and

Otf-.e'” L i t e r a t u r e

EXPOSURE TO WRONGFUL DISCHARGE

Your

Knowledge

of

the

Wrongful

Discharge

1.

None

3.

Some,

5.

Little

L.

Well

Issue:

could

be

better

Informed

P l e a s e s e l ec t the
n u mb e r for each s t a t e m e n t w hi c h best
- e c r e s e n t s vour v i ew s and at t i t u d e towarc tne
c h a n g e s t ha t
h a v e o c c u r r e d o v e - the
last t e n y e a r s w i t h r e s p e c t to t h e
w r o n g f u l d i s c h a r g e issue:

1=
2=
3=
**•=
5=
6=
7=

St-ongly Disagree
Moderately Disagree
Slightly Disagree
N e i t h e r A g r e e nor Dis a g r e e
Slightly Agree
Moderately Agree
Strongly Agree

1.

Entire

2.

Emolove-s

3.

Courts

are

Courts

should

5.

Costly

to

6.

Limits

management

issue

is a m b i g u o u s

face

difficulty

"nit

defending

position

picking"

temper

the bottom

their

involvement

line

discretion

136

7, llut'e r'aufifWCt'K

PART X

C.

E.

More

employee

9.

M g m t . fear

10

Cther

____
job

of

s e c u r i t y _______________________________ ______

employee

s u i t s ___________________________________

C o m m e n t s _____________________________________________________

H a s t h e U n i v e r s i t y h a d a l a w s u i t or c i v i l r i g h t s c o m p l a i n t
b r o u g h t b y a n a t - w i l l e m p l o y e e or, i s s u e s o f
wrongful
d i s c h a r g e b e t w e e n l P T P - i P E 0 "1
Yes

______ N o

D.

(if

no,

co

to p a g e

9)

F o r e a c h l a w s u i t or c o m p l a i n t ,
w e r e i n v o l v e d ? ( c h e c k all t h a t
o n f o l l o w i n g c a g e if n eeceri;
Statutory

Protection

Violation
of e t h i c s ,

of o u t l i e
etc.'

Existence

cf an

(Title

coiic'

ir.piied

w h i c h of t h e f o l l o w i n g
apoly. Use ad d it i o n a l

V II . A g e

e-’c s p t i o r

contract

Discrim.,

(please

-or eacn lawsui t
d e s c r i p t i o n of t h e
Suit

’
.verbal

University

_

Settled
Employee

won

of

contract)
(tort

or c o m o l a i n t . p l e a s e p r o v i d e
-'inal j u c g e m e r t in t h e s u i t :

Won

out

coos

theory

of

e x p l a i n ) ______________________________________________

Dismissed

_

etc.)

iw.n : st le-o l e w i - g ,

Covenant
o f g o o d f a i t h arc f a i ' d e a l i n g
w r o n g f u l or a b u s i v e d i s c h a r g e )
Other

issues
space

court

a brief

137

Other

(please

e x p l a i n ) ________________________________________________

Please
use
this
additional
spac e for
each
of
d i s charge suits
brought
against the
University
emplovee.

W o u l d y o u l i k e to
and inferences of
yes
If y e s ,

receive
a c o p y of the
this questionnaire?

the
wrongful
by an
at-wili

statistical

results

____ no
please

complete

the

following:

M a n e __________________________________________________________
T i t l e _________________________________________________________
C o m o a n y ______________________________________________________
A d o r e s s _______________________________ __ _______

Phone

No

P l e a s e u s e t h e s o a c e b e l o w to a d d a n y r e m a r k s t h a t v c u feel w o u l d
a d d to
the i n f o r m a t i o n
provided
a b o v e or
that are
needed
to
c l a r i f y a n y r e s p o n s e s y o u h a v e m a d e to t h e q u e s t i o n s a s k e d .

APPENDIX B
LETTER TO PARTICIPANTS

138

Dear Personnel/Employee Relations Executive:
Per our earlier conversation, at which time I spoke with
you about the purpose of this research study, I wish to
reiterate the procedures I will follow in collecting the
research data.
The attached Interview Guide will be completed by me as we
speak during our interview.
It is the too which I will
use to obtain pertinent research data on the subject of
personnel policies and procedures within the University.
Your participation in the interview is strictly voluntary.
You may choose not to participate at all, stop at any
time, or not answer certain questions.
The data collected from the respondents, when shared after
the research has been completed, will be useful to
managers in the vital area of personnel planning.
It will
provide information on the impact of court rulings upon
actual decision making, business operations, and personnel
policies and procedures related to nonunion employees.
Your willingness to participate in this study is very much
appreciated. The interview itself will take approximately
45 minutes of your valuable time.
Please be assured that
the information you provide will be used for research
purposes only and will be kept in strictest confidence.
Since all information from respondents will be coded to
protect confidentiality, neither you nor the University
will be identified in any way.
Thank you again for your voluntary participation.

Respondent's Signature

Date

APPENDIX C
LIST OF CASES

139
Table of Cases
Adair v United States, 208 US 161, 28 S Ct 277, 52 L Ed 2d
436 (1907).
Adler v American Standards Corp. „ Md App 4,
(1981) .

32 A2d 464

American Electrical Steel Co. v Scaroace. 399 Mich
249 NW2d 70 (1976).
Asbill v Housing Authority
1499 (1984).

of

Choctaw

306,

Nation. 726

F2d

Board of Regents v Roth. 408 US 564 (1972) .
Cancellier v Federated Dept. Stores. 672 F2d 1312 (1982).
Chamberlain v Bissel. 574 F Supp 1067 (E.D. Mich. 1982).
Cleary v American Airlines. Inc.. Ill Cal App 3d 443, 168
Cal Rptr 722 (1980).
Coppage v Kansas. 236 US1 (1914).
Detroit Savings Bank v Loveland. 168 Mich 163, 130 NW 678
(1911).
Doncouse v Spartan S t o r e s . I n c . No
County. Verdict 4/30/87.

84-425734,

Wayne

Eblinq v Masco Corp.. 79 Mich App 531, 261 NW2d 74 (1977),
aff/d . 408 Mich 579, 292 NW2d 880 (1980).
Foley v Interactive Data Corp.. 174 Cal App 3d 282 (1985).
Fortune v National
NE2d 1251 (1977).

Cash Register Co. . 373Mass

96,

364

Goins v Ford Motor Company. 131 Mich App 185, 347 NW2d 184
(1984) .
H. W. Gossard Co.
(1906).

v

Crosbv. 132

Iowa

155,

Hackett v Foodmaker. Inc. . 69 Mich App 591,
(1976).

109

NW

483

245 NW2d 140

Huhtala v Travelers Insurance Co.. 401 Mich 118, 257 NW2d
640 (1977).

140

J. I. Case Co. V NLRB. 321 US 332 (1944).
James McGee v City of Grosse Pointe Park. No.
Wayne County. Verdict 7/30/87.

84-434300,

Johnson v Krieser's Inc. (SD Sup Ct., 1988).
Lawson v
(1984).

Sheriff

of

Tippecanoe

Maqnan v Anaconda Industries,
A2d 492 (1980).

Cou n t v . 725

F2d

1136

Inc.. 37 Conn Supp 38, 429

Martin v New York Life Insurance Co. . 148 NY 117,
416 (1895).

42 NE

Marwil v Baker. 499 F Supp 560 (E.D. Mich 1980).
Midaett v
(1984) .

Sackett-Chicaqo. I n c . . 105

Mount Healthy City School
Doyle, 429 US 274 (1977).

D i s t . Board

ILL

2d

143 , 85

of Education v

Ohlsen v DST Industries. Inc.. Ill Mich App 580, 314 NW2d
699 (1981).
Palmeteer v International Harvester Co. . 85 ILL 2d 124,
421 NE (1980).
Peterman v International Brotherhood of Teamsters.
396. 174 Cal App 2d 184, 344 P2d 25 (1959).

Local

Pavne v Western & Atl♦ R.R. Co.. 81 Tenn 507 (1884).
Perrv v. Sinderman. 408 US 593 (1972).
Pickering v Board of Education. 391 US 563 (1968).
Pierce v Ortho Pharmaceutical Corp.. 84 NJ 58, 417 A2d 505
(1980).
Prussinq v General Motors Corp. . 403 Mich 366,
181 (1978).
Pugh v See's Candies.
Rptr 927 (1981).

Inc.. 116 Cal App 3d 329,

269 NW2d
171 Cal

Rabaqo-Alvarez v Dart Indus. Inc.. 55 Cal App 3d 91,
Cal Rptr 225 (1976).

127

141

Republic Steel Corp. v Maddox. 379 US 650 (1965).
Savodnik v K o r v e t t e s . I n c .. 488 FSupp
1980).

882

(E.D.N.Y.,

Schipani v Ford Motor Co.. 102 Mich App 606, 302 NW2d 459
(1981) .
Schwartz v Michigan Sugar Co.. 106 Mich App 471, 308 NW2d
459 (1981).
Struble v Lacks Industries. Inc.. 157 Mich App 169,
NW2d 71 (1986).

403

Suchodolski v Michigan Consolidated Gas Co.. 412 Mich 692,
316 NW2d 710 (1982).
Sventoko v
(1976).

Kroger

C o ., 69 Mich

App

644,

245

NW2d

151

Tamenv v Atlantic Richfield Co.. 164 Cal Rptr 839, Cal Sup
Ct (1980).
Toussaint v Blue Cross & Blue Shield of Michigan. 408 Mich
579, 292 NW2d 880 (1980) , reh d e n i e d . 409 Mich 1101
(1980).
Trombetta v Detroit. Toledo & Ironton Railroad
Mich App 489, 265 NW2d 385 (1978).

Co., 81

Weiner v McGraw-Hill Inc.. 457 NY2d 193, New York (1982).
Wiskotoni v Mich Nat'1 Bank-West. 716 F2d 378
1983).

(6th Cir.

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