Robert Wilentz

“ Our courts will not allow an employer to offer attractive inducements and benefits to the workforce and then withdraw them when it chooses, no matter how sincere its belief that they are not enforceable. ”

“ That difficulty is one factor that suggests the employer did not intend a lifetime contract with one employee. Here the question of good cause is made considerably easier to deal with in view of the fact that the agreement applies to the entire workforce, and the workforce itself is rather large. Even-handedness and equality of treatment will make the issue in most cases far from complex; the fact that in some cases the "for cause" provision may be difficult to interpret and enforce should not deprive employees in other cases from taking advantage of it. ”

“ Whatever else the manual may deal with (as noted above, we do not have the entire manual before us) , one of its major provisions deals with the single most important objective of the workforce: job security. The reasons for giving such provisions binding force are particularly persuasive. Wages, promotions, conditions of work, hours of work, all of those take second place to job security, for without that all other benefits are vulnerable.
We are dependent upon others for our means of livelihood, and most of our people have become completely dependent upon wages. ”

“ In the last century, the common law developed in a laissez-faire climate that encouraged in-dustrial growth and approved the right of an employer to control his own business, including the right to fire without cause an employee at will. ”

“ It is reasonable to interpret it as seeking continued work from the employees, who, in most cases, are free to quit since they are almost always employees at will, not simply in the sense that the employer can fire them without cause, but in the sense that they can quit without breaching any obligation. Thus analyzed, the manual is an offer that seeks the formation of a unilateral contract -- the employees' bargained-for action needed to make the offer binding being their continued work when they have no obligation to continue. ”

“ Whatever their worth in dealing with individual long-term employment contracts, these requirements, over and above those ordinarily found in contract law, have no relevancy when a policy manual is involved. In that case, there is no individual lifetime employment contract involved, but rather, if there is a contract, it is one for a group of employees -- sometimes all of them -- for an indefinite term, and here, fairly read, one that may not be terminated by the employer without good cause. ”

“ Job security is the assurance that one's livelihood, one's family's future, will not be destroyed arbitrarily; it can be cut off only "for good cause," fairly determined. Hoffmann-La Roche's commitment here was to what working men and women regard as their most basic advance. It was a commitment that gave workers protection against arbitrary termination.
Many of these workers undoubtedly know little about contracts, and many probably would be unable to analyze the language and terms of the manual. ”

“ As one might expect, layoff is a termination caused by lack of work, retirement a termination caused by age, resignation a termination on the initiative of the employee, and discharge due to performance and discharge, disciplinary, are both terminations for cause. ”

“ The court's discussion of the effect of distributing a manual is worth noting:
While an employer need not establish personnel policies or practices, where an employer chooses to establish such policies and practices and makes them known to its employees, the employment relation-ship is presumably enhanced. The employer secures an orderly, cooperative and loyal work force, and the [p304] employee the peace of mind associated with job security and the conviction that he will be treated fairly. No pre-employment negotiations need take place and the parties' minds need not meet on the subject ”

“ The implication of the presumption of reliance is that the manual's job security provisions became binding the moment the manual was distributed. Anyone employed before or after became one of the beneficiaries of those provisions of the manual. And if Toussaint is followed, employees neither had to read it, know of its existence, or rely on it to benefit from its provisions any more than employees in a plant that is unionized have to read or rely on a collective-bargaining agreement in order to obtain its benefits. ”

“ There are many companies whose employees have job security who are quite able to plan their future and implement those plans. If, however, the at-will employment status of the workforce was so important, the employer should not have circulated a document so likely to lead employees into believing they had job security. ”

“ The employer in the old sense has been replaced by a superior in the corporate hierarchy who is himself an employee. We are a nation of employees. Growth in the number of employees has been accompanied by increasing recognition of the need for stability in labor relations. ”

“ Finding that the personnel policy manual did not contain any such clear and definite expression [p289] and, further, that there was no such additional consideration, the court granted summary judgment in favor of defendant, sustaining its right to fire plaintiff with or without cause.
The Appellate Division, viewing plaintiff's claim as one for a "permanent or lifetime employment," found that the company's policy manual did not specifically set forth the term, work, hours or duties of the employment and "appear [ed] to be a unilateral expression of company policies and procedures . . . ”

“ IV. GUIDELINES FOR DISCHARGE DUE TO PERFORMANCE In keeping with the company's concern for all employees, termination of employment on the initiative of the com-pany under circumstances generally related to the quality of the employee's job performance deserves special consideration. We would like to insure that every reasonable step has been taken to help the employee continue in a productive capacity. It is the responsibility of each manager and supervisor to develop the people working for him/her. ”

“ If reliance is not presumed, a strict contractual analysis might protect the rights of some employees and not others. For example, where an employee is not even aware of the existence of the manual, his or her continued work would not ordinarily be thought of as the bargained-for detriment. ”

“ VIII. The lack of definiteness concerning the other terms of employment -- its duration, [10] wages, precise service to be rendered, hours of work, etc., does not prevent enforcement of a job security provision. [11] The lack of terms (if the com-plete manual is similarly lacking) can cause problems of interpretation about these other aspects of employment, but not to the point of making the job security term unenforceable. Realistically, the objection has force only when the agreement is regarded as a special one between the employer and an individual employee. ”

“ See F. Tanenbaum, A Philosophy of Labor 9 (1951) , quoted in L. Blades, "Employment At Will vs. Individual Freedom: on Limiting the Abusive Exercise of Employer Power," 67 Colum.L.Rev. 1404, 1404 (1967) [hereinafter cited as Blades] . If such a commitment is indeed made, obviously an employer should be required to honor it. When such a document, purporting to give job security, is distributed by the employer to a workforce, substantial injustice may result if that promise is broken.
We do not believe that Hoffmann-La Roche was attempting to renege on its promise when it fired Woolley. ”

“ Since the matter was decided against plaintiff on motion for summary judgment, we shall assume that the manual's origin, dissemination, and continued existence is similar in context to that of the ordinary personnel policy manual, of which context we take judicial notice.↑ The contract arising from the manual is of indefinite duration. It is not the extraordinary "lifetime" contract explicitly claimed in Savarese. For example, a contract arising from a manual ordinarily may be terminated when the employee's performance is inadequate ”

“ The twentieth century has witnessed significant changes in socioeconomic values that have led to reassessment of the common law rule. Businesses have evolved from small and medium size firms to gigantic corporations in which ownership is separate from management. ”

“ V. The rule of Savarese, supra, 9 N.J. 595, which the trial court and the Appellate Division transported to this case, was derived [p293] in a very different context from that here. The case involved an unusual transaction not likely to recur (promise by company officer, made to induce employee to play baseball with company team, for lifetime employment even if employee became disabled as a result of playing baseball) . ”

“ If they lose their jobs they lose every resource, except for the relief supplied by the various forms of social security. Such dependence of the mass of the people upon others for all of their income is something new in the world. For our generation, the substance of life is in another man's hands . [F. Tanenbaum, A Philosophy of Labor, 9 (1951) , quoted in Blades, supra, at 1404.]
See Pugh v. See's, 116 Cal.App.3d 311, 320-21, 171 Cal.Rptr. 917, 921 (1981) ; see also Blades, supra at 1410 & n. 30 (right of discharge has been limited in collective bargaining agreements) . ”

“ Among the cases holding that the document in question satisfied technical contractual requirements are Toussaint, supra, 408 Mich. 579, 292 N.W.2d 880, and Anthony, supra, 51 N.J. Super. 139. In Toussaint one main issue was the contractual force of an oral assurance given to the employee when he was hired that he would not be discharged so long as he was "doing his job." In addition to that as-surance, Toussaint was at the same time handed a manual, which provided that an employee would not be discharged without cause and without following certain procedures. ”

“ C. Encouraging the employee to bid into an area where his/her chances of success are felt to be better. D. A change to a position of lesser responsibility.
If, after sufficient time and consideration of the above, the employee does not remedy the situation, the supervisor should then proceed with the termination of the employee (see VI below) .
V. GUIDELINES FOR DISCIPLINARY TERMINATIONS (See section on Discipline 9.1 through 9.4) The termination of any employee for disciplinary causes must follow the procedures as set forth in Section 9.1 through 9.4 of the Personnel Policy Manual. ”

“ Copies of the letter should go to the employee and the Personnel file; -- Forward all termination procedure forms to the Personnel Department Record Room.
It is the responsibility of the Payroll Department to:
-- Verify that the terminating employee has no outstanding financial liabilities to the company; -- Issue and mail a final pay check upon completion of all termination procedures and receipt of a copy of the Personnel Action Form. ”