Document Type
Article
Publication Date
2023
Abstract
Employment contract law is an antiquated, ill-fitting, incoherent mess. But no one seems inclined to fix this problem. Employment law scholars, skeptical of employees’ ability to bargain, tend to disregard contract law and advocate for just-cause and other legislative reforms to eliminate at-will employment. And contracts scholars largely ignore employment cases—viewing them, with some justification, as part of a peculiar, specialized body of law wholly divorced from general contract jurisprudence. As a result of this undesirable employment law exceptionalism, courts lack the tools needed to resolve recurring disputes.
This Article offers a new, comprehensive historical account that exposes the formalistic and anticontractual origins of existing doctrine and shows how to repair the resulting harm. Blinkered by the powerful employment-at-will presumption, judges seized on unilateral contract theory to enforce employer promises of deferred benefits and job security. But this narrow doctrine ignores the complexity of the employment relationship and permits only piecemeal analyses of individual terms. The result is rigid, and frequently inaccurate, judicial reasoning that obscures courts’ underlying policy choices and produces technical opinions largely detached from real life. Meanwhile, creative judicial efforts to develop an informal alternative—which would sidestep these doctrinal challenges by enforcing employees’ legitimate expectations—have failed to take root.
This Article concludes by identifying a path forward. The problems with existing doctrine flow principally from courts’ failure to respect the contractual character of employment and their disregard of widely accepted developments in contract doctrine and theory. Employment is a long-term, fluid relationship governed by an agreement that is necessarily incomplete, dynamic, and usually expressed in indefinite terms. To address these challenges, we outline a new model of a “hyper-relational” employment contract, an approach that reframes the dynamic features of employment agreements in contemporary terms as a form of contractually conferred discretion within an enforceable bilateral relationship. This Article considers how the implied duty of good faith and fair dealing and modern approaches to contextual evidence could resolve indefiniteness, supply missing terms, and accommodate modification. This new model would both supply the formal framework that courts demand and build employment contract law on a firm doctrinal foundation at last.
Recommended Citation
75 Fla. L. Rev. 897 (2023)