An Employer’s Promises And At-Will Employment

Delaware is an “at-will” employment state. This means that an employer does not need to have a reason to terminate an employee, provided the termination is not for some specifically prohibited reason (such as the race of the employee).

But what happens if an employer promises not to fire someone? This can be especially important in the case of whistleblowers. As with most things in the law, the at-will employment doctrine is not an absolute thing. There are exceptions if the employer has not acted fairly in the eyes of the court.

Lord v. Souder

In one case, an individual working for the state horseracing commission was alleged to have altered documentation in favor of a horse’s owner. He was charged criminally, and suspended pending the outcome of the criminal case. During his suspension, the employee asked the organization’s director if he would be reinstated if he was acquitted of the criminal charges. After consulting with the commissioners, the director told the employee that he would be. The employee was subsequently acquitted of the charges, and asked for his job back. After a discussion, the commissioners decided not to reinstate him. The employee sued, arguing that he had been given a binding promise by the commission prior to his being terminated.

The case ultimately came before the Delaware Supreme Court. Specifically, could the employee sue based on the promise made by the commission (and relayed by the director) that he would be reinstated if he was acquitted of the criminal charges? The Delaware Supreme Court, citing earlier precedent, reiterated that an employee could sue if certain conditions were met:

• A specific promise was made;
• The person making the promise (the employer) reasonably expected the promise to push the other person (the employee) into action;
• The employee relied on the promise and took action that harmed himself; and
• Injustice can only be avoided by enforcing the promise.

The Court found all four requirements to be met. The promise by the commissioner as relayed by the director was specific (factor 1), since they said specifically that the employee would be returned to work. For factor 2, there was no dispute that the commission believed the employee would rely on the promise. Third, the employee had not looked for other work during his suspension because he believed he would be able to get his old job back.

The fourth factor, that of injustice, can be harder to pin down. In this case, the Court described that factor as requiring that the employee show that harm resulted from his relying on the promise. The Court went on to decide that the employee’s lost wages (since he did not seek new employment while he was on suspension) were sufficient to show harm from his reliance.

Not all promises made by an employer are grounds for a lawsuit if they are broken, of course. As with any case involving an employee’s termination from at-will employment, the specifics of the case are extremely important. If you have faced retaliation because of something done at work, or your employment was terminated in spite of an employer’s promise, you should contact an attorney right away to see what recourse you may have.