The University of Michigan was sued for discrimination based on sexual preference by a law professor who was denied tenure. The claim for breach of breach of an implied contract was based in part on the university's policy statements concerning non discrimination. The university raised then abandoned the defense that the policy did not create a contractual obligation. The basis for the change in strategy was apparently one based on policy and public perception. What about public employers who are not willing to abandon the defense? Is at will employment still a defense? In MacLennan v. County of Allegan [an enhanced version of this opinion is available to lexis.com subscribers], the Michigan court of appeals upheld in an unpublished opinion the dismissal of an implied contract claim. An employee submitted an application that stated he understood that his employment and compensation could be terminated at any time with or without notice at his or the county's option. When he was hired, he signed an acknowledgment that he understood his employment was not for any definite time period and that his employment could be terminated by him or by the county without cause or notice. The employee was the subject of several sexual harassment complaints and was terminated. The employee sued alleging a violation of the county's code of ethics which referenced fairness and a fair, legal, objective process for hiring and maintaining personnel. The court of appeals said that at will employees have no property right to continued employment and are not entitled to procedural due process when terminated. The court noted that the application form statement and the acknowledgement form referenced termination and constituted part of the employment contract. Since the at will relationship was clearly created, the implied contract theory cannot be relied upon. The court noted that it was unnecessary for the trial court to find that the code of ethics did not create an implied contract because that theory may not be relied upon when there is an express contract concerning the same subject matter. Michigan public employers who use the at will disclaimers similar to those used in this case will be able to use the same defense. Many public employers will decide that the policy considerations do not out weigh the legal defense. At will employment is still alive and well in Michigan, provided the employers do the correct paperwork.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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