I recently received a phone call from a musician who was just terminated from a long-standing job he had as a church organist.
He had no written contract with the church and had not been hired for any specific period of time.
Without any warning or advance notice, he was told by the church’s pastor that his services were no longer needed and that his performance on Sunday would be his last.
His question to me was the following.
Given his long standing tenure with this employer — and the fact that his termination appears unwarranted — does he have a valid claim of “wrongful termination”?
Without exaggerating, I must receive at least one call per week like this from all types of employees.
My answer, unfortunately, is usually the same for each.
In New York and most other states, employees who have no written employment contract are considered “employed at will.”
This means that they can be fired at any time, for any reason, good or bad — or no reason at all! — so long as they’re not being fired for one of the following:
- Discrimination (race, sex, etc.), or retaliation for a discrimination claim.
- Concerted activity, as defined by the National Labor Relations Act.
(What is “concerted activity”? One example is marching into the boss’s office with a group of fellow workers, to make a demand regarding terms and conditions of employment. That’s protected. So is forming a union.)
Just as at-will employees can be fired at any time for pretty much any reason, they may also quit at any time for any reason.
The concept of employment at will is widely recognized as a by-product of our laissez-faire capitalist system.
Central to this is the belief that the free flow of commerce is best achieved where individuals are free to work for whomever they chose. And employers are free to employ whomever they chose.
Union agreements go against this.
The standard “just cause” provision in union contracts is anathema to this notion. That’s one reason why big business hates unions!
(A just cause provision means that you can only be disciplined or fired for a cause that is just, or fair.)
For this reason, I always recommend the negotiation of a just cause provision in any union contract.
It should be the first thing workers aim for. It’s the heart and soul of job security.
A LITTLE HISTORY
The concept of at-will employment was first codified by the New York Court of Appeals in its seminal decision Murphy v. American Home Products, 58 N.Y. 2d 293 (1983).
There, the court of appeals — New York’s highest court — rejected a worker’s claim that he was fired wrongfully.
Why? The court found that the concept of employment at will was the domain of the legislative branch.
In other words, the court was not willing to change the long-standing principal of at-will employment. Such action must come from lawmakers.
In order for workers to defeat the legal presumption that they are at will employees, they must establish that they have a written or implied contract — union or otherwise — for a specific duration.
Without a contractual commitment, the employer does not have a continuing obligation to employ the worker. Lobel v. Maimonides Medical Center, 39 A.D. 3d 275 (1st Dept. 2007).
In 1992, the New York Court of Appeals, however, held that one exception to the at will doctrine existed.
The exception is the following, and it has to do with the public good.
Workers may not be fired if they refuse to engage in activity that violates established “professional standards.” Wieder v. Skala, 80 N.Y. 2d 628 (1992).
For example, an accountant may not be fired if he is ordered to “cook the books” — and he refuses.
Likewise, an attorney may not be fired if she refuses to engage in conduct that violates her code of professional responsibility.
But this exception has been strictly construed. There isn’t much wiggle room for workers.
For instance, imagine a situation where a worker is ordered to breach confidential information and the worker refuses. That doesn’t fly: the worker can still be fired. Horn v. New York Times, 100 N.Y.2d 85 (2003).
Whether there will be any additional exceptions to the “at will” rule remains a great mystery. It appears unlikely, barring any decisive legislative action.
Until that time, I — unfortunately — will have to look forward to many more calls about this.
As usual, the best solution is to play union gigs. And when you get called for nonunion gigs, call Local 802 and give us a chance to make the job union.
A union agreement is the best protection.
Harvey Mars is one of Local 802’s lawyers. Legal questions are welcome from 802 members. E-mail them to email@example.com. Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.