Human Resources Management for Public and Nonprofit Organizations

80 Human Resources Management for Public and Nonprofi t Organizations

between an employer and employee, even though no express, written

instrument regarding the employment relationship exists.

Proving the terms of an implied contract is often diffi cult, and the

burden of proof is on the employee who has been fi red. Implied employment

contracts are most often found when an employer ’ s personnel policies or

handbooks indicate that an employee will not be fi red except for good

cause or specify a process for fi ring. If the employer fi res the employee in

violation of an implied employment contract, the employer may be found

liable for breach of contract.

• Good faith and fair dealing exception. The exception for good faith
  and fair dealing represents the most signifi cant departure from the tra-
  ditional employment - at - will doctrine. Rather than narrowly prohibiting
  terminations based on public policy or an implied contract, this excep-
  tion inserts a covenant of good faith and fair dealing into every employ-
  ment relationship. It has been interpreted by some courts to mean either
  that employer personnel decisions are subject to a “ just cause ” stan-
  dard or that terminations made in bad faith or motivated by malice are
  prohibited.

◆◆◆

Employers may not fi re at - will employees for refusing to commit illegal

acts, and if the employment handbook or agency policy outlines procedures

that must be followed before an employee can be terminated, those proce-

dures must be followed. If the employer fi res an employee without follow-

ing established procedures, the employee may have a claim for wrongful

termination. Employers in all sectors must be aware of exceptions to the

employment - at - will doctrine. Essentially these concepts are developed under

the rubric of procedural and substantive due process as discussed above. In

addition, the courts have found that public employees have liberty interests

(quasi - property rights) in their reputation as it relates to public employment.

The liberty interest does not necessarily protect the job, but it allows the

employee to invoke a liberty-interest hearing after termination. The hearing

allows the employee to have the last word within the public personnel fi le.

Conclusion

Equal employment opportunity has continued to evolve, and it now prohibits

not only race discrimination but discrimination against sex, religion, color,