Berube v. Fashion Centre, Ltd.

adopted upon by majority certiorari manner question which this sion of the unnecessary since granted may prove ap- case unless the unusual circumstances clearly correct on pear below was judgment as discussed above. The Monrosa v. Carbon ground. another I am in accord with a statement made Inc., 359 U.S. Export, Black 79 S.Ct. Black, which was in by Justice concurred case, In another 3 L.Ed.2d 723 Douglas, Chief Justice Warren and Justice consideration, due argument after full City Rice v. Sioux Memorial Park Cem litiga course of manifest that the it became 70, 80, etery, U.S. 75 S.Ct. courts the decisions the state tion and (1955): L.Ed. 897 on the issue on basis did not turn only very thinkWe unusual circum- Smith v. granted. certiorari was which justify stances can dismissal of on cases Butler, 6 L.Ed. 81 S.Ct. U.S. ground improvi- that certiorari was curiam). (1961) (per 2d granted. dently objection Our to such According recollection of this writ- to the when, stronger dismissals are [sic] er, granted in the instant certiorari was here, already argued a case has been concerned that the case because were we agree We do not decided Court. Appeals jury had overturned a Court of that the circumstances relied on Capitol had found Thrift verdict which justify this dismissal. Court conspiracy. The Court guilty of civil It is true that the instant case has not there was no evi- Appeals concluded that “decided,” it has been briefed and been but finding of civil con- support dence to argued, doubtlessly at considerable ex- certiorari, granted spiracy. After we pense parties. to the I have reached the filing fee in this Court petitioner paid his no merits and conclude that there is evi- parties thoroughly and counsel for both Capitol any partic- Thrift had dence that set, argument was briefed the issue. Oral of, in, knowledge ipation or even fraud parties appeared and and counsel for both practice Pagan. on I would affirm the argued this Court. All of the case before Appeals. Court of expense done at considerable that was This took the case parties. Court both majority

under advisement and now the reaching the

dismisses the writ without answering case and without

merits of the grant prompted our

the concerns which

certiorari. dismissing I writ as hav- believe that BERUBE, Shirley Plaintiff improvidently granted and re- been Appellant, fusing rule on the merits of to reach and grossly to the the case are unfair change no juncture. There has been CENTRE, LTD., dba FASHION granted, since the writ was circumstances Torman, Ogden, Joseph E. dba ofGal review was nor has the basis Polygraph, Tay Steven Western States to be nonexistent. permitted been found lor, Does De and John and Jane Simply conclude that because Appellees. fendants and Appeals made no error does Court of No. 20673. dismissing the writ without justify us in The in- making decision on the merits. Supreme of Utah. Court first few cases stant case is one of the 20, 1989. March since the granted certiorari where we have Appeals two of the Court of establishment April Rehearing Denied beginning on a ago. we are years Since slate, I would like to see the Court new review on merits of cases we

reach the in the dispose and not of cases

certiorari

George Joseph W. Preston and M. Cham- bers, Logan, plaintiff appellant. for Taylor, Thomas S. Provo and Theodore Kanell, City, E. Lake Salt defendants appellees. DURHAM, Justice: appeal Shirley Plaintiff Berube claims on denying in her that the lower court erred complaint add motion to amend her cause of action on Utah Code Ann. based 34-37-16(2), granting judg- summary in § inment favor of defendant Western States Polygraph, refusing and in to allow the plaintiffs jury to evaluate case based implied good faith and fair covenant dealing. part, in affirm in We reverse theory for trial on a part, and remand breach of an term ment contract.

I. FACTS employed Shirley Plaintiff Berube was Centre, Ltd., dba Fashion Gal by Fashion (Fashion Centre), Ogden, store in its Utah initially beginning April 1979. She was eventually hired as a sales clerk and was position of assistant man- promoted ager promotions Her were based perform- ability job on demonstrated ranged from ance evaluations which uniformly superior. Plaintiff experience at Fashion pleased with her long anticipated a career Centre and accuracy expecta- of her company. The manag- anything one of her tions was confirmed stolen from that Fashion Gal ers, post-test interview, store?” In expect told her that she could who the exam- plaintiff iner ascertained manager someday. “suspi- had a store cions of especially those who others — At or near the time she was hired quit threatened to rather than take the Centre, plaintiff became aware of polygraph Thus, plaintiff’s exam.” disciplinary Fashion Centre’s written action apparently “stress” reaction was based on policy. This stated that Fashion suspicions of others and not on a dis- Centre, attempting equitably, to act loyal withholding of relevant or incrimina- would not terminate without ting information. warning except specific reasons, prior copy Western States forwarded a including pass failure to refusal take plaintiff's test results to Fashion Centre examination. In all other cir- headquarters Louis, stating St. cumstances, promised Fashion Centre em- “deception” had shown on only warning ployees opportunity questions one of fifteen relevant and ex- improve performance prior to termination. plaining apparent “decep- source of the Plaintiff admits that she and Fashion result, tion” post-test as revealed in the agree specified to a Centre did not term of light interview. explana- Even Indeed, employment. she understood that tion, Fashion Centre told she her of no set duration was required would be to take a second exami- by party. could be terminated either How- nation. Fashion Centre did not her tell ever, representations based on a number of why say that she had failed the first procedures, she that Fashion believed examination. only terminate her Centre would for cause. Although by request, plain- disturbed apparent inventory In the fall of agreed tiff to submit to the second exami- shortage1 percent of over 3 occurred in nation, by which was administered a differ- Ogden Fashion Centre’s store. This was ent polygraph company. She showed no large shortage, unusually and Fashion signs deception “passed” the exam. investigated. investigation Centre pretest interview, however, A revealed that inconclusive, requested and Fashion Centre had, time, she from time to rounded off Ogden employees that all store sub- figures of a “class count” when she be- polygraph mit to a examination. Three employees lieved her had erred. This infor- employees quit were allowed to rather than conveyed mation was to Fashion Centre undergo polygraph examination. All along with the test results. others, including plaintiff, agreed partic- Although polygraph the first and second ipate. unexplained examinations showed no de- provided polygraph Fashion Centre ception part plaintiff, on the questions upon examiner with fifteen plaintiff undergo Centre demanded that which to base the examination.2 Defen- given third examination. Plaintiff was not (Western Polygraph dant Western States exam, a reason for the third and she be- States) administered this exam to the em- lieved, by poly- based on comments ployees. plain- examiners, The examiner found that graph “passed” that she had suggested deception tiff’s data when she distraught the first two tests. She was responded negatively question, to the prospect enduring “Do the another you by implicit know for certain who has cheated or accusation that accom- shortage determining 1. It is unclear whether the ever actual- 3.A "class count” involves the num- ly ultimately existed or was recovered. by ber of a certain item in a store manual counting. inventory Fashion Centre tabulated Raskin, acknowledged expert Dr. C. David method, by "perpetual inventory” meaning polygraphs, on the use of that and administered fell below of stated in an affidavit (by departure that the arrival and of each item test, as formulated Fashion Centre otherwise) sale or was recorded. Class count- States, defendant Western ing apparently perpetual did not relate to the polygraph profession's standards inventory system accuracy. and did not affect its quality. trial, request

panied jury Fashion Centre’s that she In a Fashion Centre was found sought plaintiff. it. She advice from co- liable Plaintiff ap- submit to now peals the trial friends, court’s refusal workers, to allow a and relatives as to wheth- cause of action on based section 34-37- to the er she should submit examination. 16(2), grant the trial court’s summary day exam, plain- On the scheduled judgment States, to Western and the manag- tiff called Fashion Centre’s district court’s refusal to allow jury to be in- er, Brooks, Jerry and told him she was too exceptions structed on employment- to the to take the exam and asked it nervous at-will doctrine under her cause of action postponed. Mr. Brooks informed her wrongful discharge. require that Fashion Centre could her to polygraphs take number of and that II. PLAINTIFF’S CAUSE OF ACTION Lerner, she must call Bennett Fashion Cen- BASED ON SECTION 34-37-16 director, personnel postpone- tre’s to seek a Plaintiff moved to amend her com immediately ment. Plaintiff called Mr. plaint to include a cause of action based on extremely Lerner and told him she was 34-37-16(2) (1974). Ann. Utah Code § upset nervous and and could obtain a doc- provides: statute light tor’s to that effect. statement Surreptitious 34-37-16. examinations condition, post- she asked Mr. Lerner to prohibited. pone her examination. Mr. Lerner told her It shall be a violation of this act to she must the exam or she take would be deception conduct a detection examina- terminated. tion instrument physical without the day Plaintiff her usual shift that worked presence subject through and and, exam, at the scheduled time of the surreptitious subject manner where a called Mr. Brooks to tell him she could not not aware of the examination. Further- take the exam. He told her to come to more, (1) it any shall be unlawful for: day sign work the next to her termination deception detection examination to be papers. When arrived next conducted instrument out-of-state morning, willingness she indicated her to through telephonic examiners means to submit to the exam order to retain her anyone in Utah or for Utah examiners to position. impos- telephonic Mr. Brooks said that was use means to determine truth (2) might try reapply deception; sible but she to within or or refusal to to submit so, despite such examination to for two weeks. She did but re- be the basis de- peated attempts part, nying terminating employment. or on her Fashion Cen- respond inquiries. tre failed to to her plaintiff’s The trial court denied motion to a cause action on this add based 20, 1983, plaintiff On October filed the complaint statute to her because all action, complaint in this which included agreed surreptitious that no examination defamation, wrongful causes of action for place. premised The court its had taken distress, discharge, infliction emotional assumption 34- decision on the that section employment of an contract. breach applies only deception to detection complaint Plaintiff to amend her moved examinations administered without the sub- May permitted her 1984. The lower court knowledge ject’s presence. or to add Western States as a defendant but request denied of action to add cause although argues appeal on that Plaintiff 34-37-16, upon Ann. based Utah Code originally section 34-37-16 was drafted to § “Surreptitious examinations, entitled Examinations Pro- surreptitious apply solely to (2) deception hibited.” Western States and Fashion Cen- applies to all detec- subsection summary judgment. Decep- tre moved for in the tion examinations as defined granted Act, for court Fashion Centre’s motion Examiners Utah Code tion Detection except all causes of action defamation and 34-37-1 to -16 Plaintiff Ann. §§ wrongful discharge. by Representa- Western States’ mo- relies on statements made House of granted entirety. tion in its tive Dale Stratford on Utah floor, Osuala v. Aetna & Casualty, 608 P.2d Representatives proposed the who Life (Utah language 1980), in subsection and an informal the best indication of opinion Legislative legislative the Office of plain issued intent is the statute’s lan Representative Jensen v. Intermountain Health spoke guage. Research. Stratford Inc., very Care, adoption on the section’s (Utah 1984). behalf of terms, ambiguous suggest plain broad and Based and unambiguous lan contemplated statute, guage that he the statute would we hold section that 34-37-16(2) prevent applies only termination when em- surreptitious serve an de ployee type decep- ception to take refused detection examinations. This does examination, including tion polygraphs. detection not include Legislative polygraph. The Office Gen- prohibits surreptitious Section 34-37-16 Counsel, opinion eral July No. subject exams where the present is not 34-37-16(2) examined section in con- is unaware of the examination’s occur- according text standard rules (1) prohibits Subsection telephonic rence. statutory It construction. concluded examinations, such as voice stress examina- (2) deception refers to subsection all detec- (2) prevents employer tions. Subsection an examinations, tion just not voice ex- stress to, denying from or terminat- This aminations. construction is neces- of, ing an individual who claims, sary, it to make sense of the stat- surreptitious to submit refuses examina- Otherwise, ute. it prohibit would terminat- argues interpreta- tion. Plaintiff that this employee refusing for to submit to tion is nonsensical it it il- because makes illegal examination. legal employer for an an em- terminate argues ployee refusing illegal Centre the statute to submit to an applies only surreptitious Additionally, exams where examination. if the examina- subject present is both un- surreptitious, not tion is is either support aware of the present examination. of it therefore unaware position, defendant cites Utah State cannot refuse to submit. section When Attorney opinion 81- adopted, General informal No. 34-37-16 was Utah law allowed 80. Fashion Centre reasons that the stat- to fire an at-will cause, ap- good cause, ute is on its clear face and should bad no cause all. Carson, plied accordingly, regardless of any specific See Bihlmaier v. 603 P.2d 790 by (Utah 1979). Thus, particular legislator. intent formed a the statute serves to hereafter, protect employees potential For the reasons set we employees forth or agree with Fashion Centre hold that from termination in- where statute, adopted, on-going apply possibility does not to forms of the or them polygraph surreptitious examinations.4 future and the examinations applicants employees refuse consent rulings regarding of a court trial practices. cooperation with such statutory construction not to are entitled particular deference. Betenson v. Assuming interpreta- Call breadth Sales, Inc., Auto Equipment & argued by plaintiff, 645 P.2d tion it seems un- (Utah 1982). analyzing In likely legislature sec that would 34-37-16, guided by tion adopted part we are the rule it as of a statute that ambiguity, deception in the absence of an exami- a mere subset detection Indeed, according plaintiff's interpretation statute should be construed its nations. See Re plain po- Johnson v. State language. attempts would disallow all screen Office, tirement v. 161; State employees 755 P.2d current tential examine Archuletta, (Utah 1974). by 526 P.2d Al employees way polygraph examina- see though legislative important, far-reaching likely intent is It is such a tions. that cursorily argues preserve adjudged prior 4. Fashion Centre also issues to final jurisdiction filing judgment by Court has no to review this issue a notice of intent to 72(a) plaintiff's timely appeal. repealed because of to file a Rule has been and re- failure placed by appeal. notice of Centre rule Rules of the Utah Su- cites Utah 3 of the 72(a), preme Rule of which Court. Civil Procedure allowed reviewing summary judgment, In explicitly articu- would be determination liberally construe all evidence and reason- pur- if its statute that were lated inferences therefrom in favor of the able Moreover, very unlikely that it is pose.5 party opposing Payne the motion. ex rel. have left such a sub- legislature would (Utah 1987); P.2d 186 Payne Myers, v. existing exception to Utah law stantial Oberhansly Sprouse, 751 P.2d 1155 years seven after an obscure form for such (Utah Ct.App.1988). reap- We are free to legislative A desire initial formulation. its legal praise the trial court’s conclusions. exception to the a broad to create such Bank, 737 P.2d Corp. Atlas v. Clovis Nat’l expressed quite could be at-will doctrine 1987). Further, (Utah we will language in simply by enacting the subsec- any proper affirm the trial court on (2) separate Neither the as a statute.6 tion assigned if ground, even the court below (2)’s adoption circumstances subsection ruling. Allphin an incorrect reason for its plaintiffs inter- language supports nor its Sine, Realty, Inc. v. Therefore, we affirm the trial pretation. 1979). (Utah court’s decision. submitting polygraph Before to the first question, plaintiff agreed

examination III. PLAINTIFF’S sign Poly- paper entitled “Consent Examination,” NEGLIGENCE CLAIM stated: graph I, Berube, age my 28 of Shirley own complaint amended her Plaintiff duress, agree to free will and without negligent misrepre a claim for to include polygraph hereby test. I submit to a and Fashion sentation Western States any and all claims and waive and release claims that the results of Centre. Plaintiff every kind whatsoev- causes of action incorrectly report polygraph her first were against Gateway Apparel, Fashion er based ed Western States and were Centre, Ltd. dba Fashion Gal West- questions negli from faulty test derived examiner. Polygraph ern States and its gently by Fashion Centre. formulated above, Having read and understood deny signature. signify my agreement by my and Western States Fashion Centre I signed plaintiff a re- liability both because argue appeal, on defendants Below and against Western States lease of all claims form releases them of all that this consent the first and Fashion Centre and because responded to this liability. Although she “proxi- below, examination was not the plaintiff dispute argument does ap- release on plaintiff’s scope validity termination. mate cause” Thus, arguments are peal.7 if defendants’ to take They argue plaintiff’s failure correct, waived her claims has proximate examination was the third negligence. termination. Defendants cause of on summary judgment based Design Corp., moved for v. Industrial Horgan 1982), granted (Utah forth grounds. The trial court we set these 657 P.2d 751 argu- the use and motion, general principles governing citing proximate cause waivers. De- application of releases and for its decision. ment as the basis statutes which disapprov- states have enacted express approving 6. Several no view 5. We public policy as the basis for a have served employment polygraphs in situa- the use of See, e.g., exception rule. Molush to the at-will setting, Their use in the tions. however, Co., (E.D. F.Supp. Exterminating 54 547 Orkin Raskin, See The has been criticized. Pa.1982); Hugh Corp., General Mercer Cordle v. Scientific, Polygraph in 1986: Professional (W.Va.1984); see also 14 Am.Jur 325 S.E.2d Surrounding Application Ac- Legal Issues (1977). Facts 4§ .2d 16 Proof of Evidence, Polygraph 1986 Utah ceptance of Comment, (1986); Privacy: Poly- The L.Rev. 29 opposition motions to Western States’ In her (1976); Employment, Ark.L.Rev. 35 graph in argues plaintiff summary judgment, Context, Note, Employment Detectors in the Lie Gal” had dba Fashion "Fashion Centre words (1975). judgment plaintiff We La.L.Rev. 694 reserve form after the consent been added to argument raised on signed issue. is not on this it. This had appeal herein. and is not considered fendants’ release is a contract and reflect either the correct or the desired challenged governing enforced or on the same state of employ- Utah law at-will grounds contract. Id. 753. One ment. challenge validity, argued by to a release’s dynamic Due to the state of this area of plaintiff appeal, on below but not is that questionable the law and the foundations signed release was under duress. upon rests, which the at-will doctrine distress, however, equiva- Emotional is not plaintiff's arguments will examine in the duress, necessity lent and economic justice. interests of Utah R.Civ.P. 51. signed alone is insufficient to invalidate a plaintiff This is an unusual case where

release. Id. seeks to alter the boundaries of the law. apparently signed

Plaintiff plaintiff’s release The trial court was aware of voluntarily. argument She offers no attempt ruling existing and based its on release, However, appeal. duress on plaintiff’s its law. because of un- terms, request, relieves both appropri- Western States common we consider it ate, liability legal Fashion Centre from related to the under rule to examine the presented. first examination. This contract issues and, law, as matter of enforceable THE precludes plaintiff’s negligence. V. AT-WILL claims of EMPLOYMENT RULE plaintiff We do not hold that could not legitimate challenging raised claims Background A. Historical See, e.g., the release. Bekins Bar V century English Nineteenth em courts Huth, (Utah 1983) Ranch v. 664 P.2d 455 ployed general presumption that an (unconscionable provisions contractual are employment relationship created without unenforceable). case, however, In this any specific gener duration amounted to a challenge does not defendants’ re- Note, hiring one-year al duration. Im upon express liance terms of the re- plied Rights Security, Contract to Job Therefore, lease. we affirm the trial (1974).9 Stan.L.Rev. With the ad ruling court’s on defendants’ motions re- revolution, vent the industrial courts in garding plaintiff’s negligence claims.8 began rely increasing-, the United States ly on notions of freedom of contract IV. PROPRIETY OF REVIEW OF construing relationships. PLAINTIFF’S OBJECTIONS TO THE Inc., Candies, Pugh Cal.App v. See’s TRIAL COURT’S JURY INSTRUC- .3d TIONS (1981). genesis the at-will rule its America, however, present Plaintiff claims the trial court erred in form can be disallowing jury instructions based traced to Horace G. Wood’s 1877 treatise exceptions various relationship. the at-will on the H. master-servant Wood, initially sought ment rule. Plaintiff Master and Servant § present jury Note, exceptions Implied evidence to the on Rights cited in Contract to the at-will doctrine. The Security, trial court re- Job 26 Stan.L.Rev. permit proffered

fused to her to do so. Plaintiff then Wood his rule without jury drafted analysis apparently inapposite instructions were in ac- cited au ruling. thority cord with the trial court’s Plaintiff on its 341-43. Not behalf. Id. at object specific withstanding antecedents, did not thereafter instruc- its dubious tions, arguments adopted many but did jurisdictions renew rule was entirety thorough the instructions in their did not careful or without examination. 8. Because we affirm the trial court on the Employees Against Wrongful Discharge: based Will release, proximate we do not address the cause Faith, 93 Duty Only The in Terminate Good Note, issue. (1980); 1816 Implied Harv.L.Rev. Con- 26 Stan.L.Rev. 335 Rights Security, tract to Job exposition, 9. For a more detailed historical see (1974), cited and authorities therein. 311, Candies, Inc., Pugh 116 v. See's Note, (1981); 171 Protecting 917 At-

1041 leading depends upon contract, York the the case Martin v. New terms of In the Co., 117, 42 N.E. express implied....” 109, 148 N.Y. at Insurance either Id. Life the com repudiated the court general at 211. P.2d This same rule hiring presumption general mon law utilized in a of Utah was number cases. uncritically year a term of one and was for Dodge v. Truck See Bullock Deseret Cen the at-will rule as framed embraced 559, ter, Inc., 1, 5, 11 Utah 2d 354 P.2d analyze opinion The Martin did not Wood. (1960); Dahle, 870, Crane Co. 576 P.2d v. prior authority, did assert any but (Utah 1978) (citing authority 872-73 no for adopted states the at-will several other had rule); Carson, the Bihlmaier v. P.2d atypi The not rule. Martin decision was (Utah 1979). courts no rationale or cal. Most offered This Court’s latest consideration of the analysis substituting for the at-will doc Development in rule was Rose v. Allied By presumption. trine for the common law (Utah Therein, Co., 1986). 719 P.2d 83 century, the the arrival of the twentieth recognized that traditional at-will the rule doctrine was well-established at-will had modified federal been both throughout the United and served States legislation. state Id. at 85. We also em- turn-of-the-century ideas concern reinforce exceptions phasized judicially two created and freedom to economics laissez-faire in that to the rule case. Where there is an Note, Implied Rights contract. Contract express stipulation as to “implied the 340; Security, 26 at to Job Stan.L.Rev. employment duration” contract or Note, Protecting Employees At-Will “good there is in where consideration addi- Duty Against Wrongful Discharge: The to the contracted to be tion services ren- Faith, Only Terminate in Good dered,” the removed from contract (1980). Harv.L.Rev. category” the “at-will termina- become development The establishment 85-86. for cause alone. Id. at ble the rule Utah was also accom- at-will Thus, historically adopted this Court the plished without critical examination. applied rule it without at-will wholesale and referring rule first Utah case to the at-will considering possible countervailing inter- Co., Savings was Price v. Western Loan & recently have enunciated limited ests. We (1909). P. The Price Utah recognition to the exceptions doctrine con- Court held that written circumstances. its unfairness some We tract, only employee’s the terminable when general the status of the at- now consider unsatisfactory either or un- services were appropriate will rule and whether it necessary, at will. was terminable expand adopt further ex- this Court mutu- stated that contract lacked Court ceptions to the rule. terminate ality employee could because employer time whereas the at Rule Exceptions B. to the At-Will retain the until his ser- bound to Thus, the con- unsatisfactory. vices were decades, judicial In last several deci- terminable the will of either tract was development sions have resulted 677; also party. Id. at 100 P. see exceptions to primary categories of three Luke, 173 P. 137 Utah Hancock First, rule. the at-will where (1918). in a for a reason that is fired manner or recognized and established contravenes Held v. this Court decided policy, the rule will serve public at-will Co., 6 Utah 2d Supply Linen American liability. from to insulate examining After Second, require- courts have clarified bargaining agreement that con- a collective express or finding duration, ments express no term of tained for a term for certain contract court and found reversed trial Court period or a covenant for dismissal employment relationship existed at that the have stated, Finally, many courts relied cause. party. of either The Court will faith implied covenant respondent a cause action has “Whether granted dis- discharged just cause and fair if without she were 1042

charged employee employee a cause of action to sue declined to penury, commit employer’s specifically enjoined conduct breaches that an act when statute. implied covenant. This cause of action Id. 164 840, Cal.Rptr. at 610 P.2d at 1333 tort, contract, both, may sound de- (quoting Petermann, 174 Cal.App.2d at pending upon jurisdiction. We will ex- 188-89, 27). 344 P.2d at categories in amine these turn. Tameny both Petermann Although clearly sup- involve factual situations that Policy

1. Public port public exception, policy some courts recognized that the Perhaps logical scope nature and exception the most public policies” “substantial upon public to the at-will rule is based exception is always based are not so policy. discharged Where an is fact, easily discerned. In precise defini- for a reason or in a manner that contra public policy tion of may virtually impos- be principles sound venes established and sible. As the court in Petermann stated: public policy, employee may substantial bring typically a tort cause of “public policy” action The term inherently is Petermann v. against employer. his In subject precise In Mary definition. Teamsters, International Brotherhood Casualty land Fidelity Co. v. & Casual Co., 184, ty Cal.App.2d 174 344 P.2d 25 Cal.App. 497, page 71 492 at 236 employee may court held that an maintain P. 210 the court stated: “The [at] wrongful discharge a cause of action for question, public policy given what is in a discharge case, where the was in violation of question is as broad as the of what public policy. plaintiff substantial City Also Noble v. is fraud.” Palo Alto, Petermann alleged he Cal.App. that had been dis pages 47 at charged for his refusal to make false state page P. 529 at the court said: “Pub legislative ments a California policy vague before com lic expression, and few mittee. The court reversed the lower cases can arise in application which its court’s judgment decision to enter a on the disputed.” Story not be Mr. in his pleadings, reasoning 546), that penury (§ because work on says: Contracts “It has perjury courts, and the solicitation to commit are never been defined but has crimes, discharging for his been left loose and free of definition refusal perjury to commit would contra the same By “public manner as fraud.” announced, legislatively policy” principle vene substantial is intended that of law principles public policy. lawfully which holds that no citizen can tendency injuri do that which has a to be Supreme The California Court found the public against public ous to the Petermann decision persuasive. See Tam good. Co., eny v. Atlantic 27 Cal.3d Richfield Petermann, Safeway (citing P.2d Stores v. Retail at 27 In Tameny, officials of the Atlan Ass’n, Clerks Int’l 567, 575, 41 Cal.2d allegedly requested tic Richfield Co. (1953)). Utah, P.2d we have plaintiff participate illegal price- in an frequently concept public invoked the fixing scheme. The refused and articulating precisely without its ori shortly was terminated thereafter. The See, Gilbert, e.g., gin Ellis v. or definition. lower court sustained the defendant’s de All (1967); 2d Utah 429 P.2d 39 murrer, plaintiff appealed. and the state v. Fidelity Ins. Co. United States & Supreme California Court reinstated the Co., (Utah 1980); Guar. 619 P.2d 329 plaintiff’s complaint, noting: Call, Exchange Farmers Ins. P.2d It would be obnoxious to the interests of (Utah 1985). contrary public policy the state and morality Legitimate public policy and sound allow an reliance on a discharge employee, exception requires whether to the at-will rule designated attempt identify proper sources of [an] duration, unspecified ground public policy principles on the and the which un-

1043 and, addressing very question, quality, In this unless in derlie it. variable deducible nagem v. L.W.M. given the court Townsend Ma the circumstances from constitu- 55, 239, ent, Inc., Md.App. 494 A.2d 64 statutory provisions, or tional should be 243 stated: accepted judicial the of a basis deter- principle of the policy mination, all, is that law Public if at with the utmost lawfully can subject which holds that no circumspection. public The policy of one tendency injuri- do that which has a be not, generation may changed under con- against public public, ous to the or ditions, public policy of be another. termed, good, may which be as it some- States, 276, 306, Patton v. United U.S. been, law, policy times has of the or 253, 261, (1930). 50 S.Ct. 74 L.Ed. 854 This public policy in relation to the administra- principle applies in employment liti equally tion of the law. gation. Although given employee may (Quoting v. American Standard Adler feel that his her termination violates a 81, 45, 464, 472 Corp., 291 Md. 432 A.2d public policy, tenet of a court fundamental omitted).) (1981) (citation policy is Public carefully public must evaluate whether the exclusively, obviously, most but not embod- policy perma identified is fundamental and legislative legisla- The ied enactments. fact, superficial transitory. nent or and In ture, acting in constitu- consonance with principles widely even those which are held principles expressing tional and the will of justify values sufficient be people, determines that which is wrongful recovery. termination For exam public good. public interest and serves the ple, although expressed it is this state’s enactment, course, legislative of every Not provide promote job policy security and public policy; only those which embodies citizens, and full for its this public promote public inter- protect the grounds public policy would be insufficient qualify. est wrongful to maintain a termi which legislature only source of is not the See, e.g., Shapiro nation action. v. Wells public policy, Dabbs v. however. See Car Advisors, Cal.App.3d Fargo Realty Servs., diopulmonary Management Cal.Rptr. (1984); Cal.Rptr. Cal.App.3d West, v. Insurance Co. Newfield (1987). Limiting scope public 440, 444, policy legislative enactments would nec essarily aspects public in eliminate protection acknowledge public policy have terest which deserve but We that a ex- political process. access to limited Ju ception application has no this case. decisions can also enunciate substan dicial Nonetheless, recognize public we that a public policy in principles tial areas necessarily policy exception is a threshold legislature has not treated. which implicated in reexamination of issue our Therefore, by any although it is not means rule, scope of Utah’s at-will and we foregone public conclusion that the inter willing therefore been to consider and implicated employ in cases of est or will be define it. We also stress that actions for termination, ques public policy on this ee excep- wrongful termination based on generally may derived from both tion be impor- and tion must involve substantial legislative judicial pronouncements. end, public policies. To this we will tant public policies narrowly and will following construe recognizing principles prior legis- generally those based on public policy, must careful utilize decisions, judicial in- principles pronouncements overextension of the lative avoid Supreme principles are so applying only volved. As the United States those Court has stated: can and fundamental that there substantial impor- their virtually question no as to public be theory truth good.10 public vague promotion tance for embodies a doctrine specified employees employees for a for dismissal at-will 10. We note that a cause of action for at-will It would make little sense public policy must lie for both term. in violation of employee may Express Thus an remove his con Implied or Contract category from the tract at-will under Rose employee may demonstrate that An by showing express and Bihlmaier express at-will termination breached his agreement employment to a term of or to employer implied agreement with the to or dismissal for cause alone. If such an cause alone. The at-will terminate him for made, rule, all, agreement subject has it is to merely is a rule contract been after of legal principle. stated; and not a construction proof. As we have cardinal “[A] Mettille, 333 River State Bank v. Pine construing give rule ... contract is ” (Minn.1983). cre 628 The rule N.W.2d parties.... effect to the intentions of the any employment presumption that ates a Assocs., Buehner Block v. 752 Co. U.W.C. specified has no term of contract which (1988); Cleary P.2d 895 see also v. relationship. is an at-will This duration Airlines, Inc., American 111 presumption can be overcome an affirm 443, 452, (1980). Cal.Rptr. 168 727 par showing by the that the ative Thus, parties employment to an contract impliedly speci intended expressly ties or may prove any express in court terms of agreed or to terminate the rela fied term accomplish agree so that contract the tionship for cause alone. Such evidence purpose. ment’s intended manuals, may employment found in oral be possible approach A second under Bihl- all circumstances of the agreements, and employee is for an maier Rose relationship which demonstrate the intent implied-in-fact prove the existence of an or only to terminate for cause to continue specifying term of the contract duration of specified period. Al employment for employment limiting for though past presumption the in favor the reasons dis the employment noted, has difficult to previously of at-will been missal. As overcome, rigid adherence to the at-will give ef contracts should be construed to longer justified or rule is no advisable. parties. im fect to the intent of the An plied-in-fact promise judicial attempt is a Co., Development 719 In Rose v. Allied precisely that result. The conclusion reach stated, (Utah 1986), “In the P.2d promise that a exists arise from a express implied further absence of some sources, variety including the conduct of stipulation employ- as to the duration of personnel policies, parties, ment or of a consideration addition the announced rendered, contracted to to the services be practices particular of that trade or indus the contract is no more than an indefinite try, circumstances the or other which show hiring general which is terminable at the See, promise. e.g., existence of such a Rose, party.” will of either P.2d at Candies, Inc., Cal.App. Pugh v. See’s Bihlmaier, 792). Thus, (citing 603 P.2d at (1981); Shapiro 3d recognized express has that an this Court Advisors, Fargo Realty 152 Cal. v. Wells implied agreement employer between Cal.Rptr. 613 An App.3d employee as to the duration of the cannot, course, implied-in-fact promise including agreement to dis- employment, an See, contract term. contradict a written cause, presump- for the miss rebuts Cal.App.3d at e.g., Shapiro, 152 permit tion of the rule and would at-will Nevertheless, deter Cal.Rptr. at 622. recovery for employee to seek breach mination of sufficient indicia of whether also stated in Rose and Bihl- contract. We question implied-in-fact promise exists is a employee may maier that an demonstrate jury, of fact for with burden in addition to the consideration services proof residing upon plaintiff-employee. bring in order to be rendered cause leading cases One action on breach of contract. Id. at based terms in an contract Bihlmaier, (quoting 603 P.2d at 792 Candies, In (footnote omitted)). Pugh Pugh, Inc. See’s enjoy employees protection them. of substantial denied public policies employees while for term were thirty-two years specified was ter- employee of over ment for a term or to terminate readily apparent employee no or articu- minated for for cause alone. in Pugh The court reviewed lated reason. Similarly, independent consideration rule, legal history of the at-will disa- required should not be for implied-in-fact exchange indepen- the need for vowed promises by which are made consideration, dent and reversed trial after the has commenced work. grant doing, of nonsuit. In so court’s v. Democrat-Harold Publish Yartzoff variety noted that a of factors could court Co., 651, 657, 281 Or. im- considered to determine whether an example, the court held that promise plied-in-fact continued though even employer’s implied-in-fact for cause alone existed. ment or dismissal promise was contained in a handbook deliv “personnel policies included the The factors ered days to the several after the practices employer, employee’s of the work, employee began sufficient considera service, longevity of actions or communica- given by tion employee the to enforce by employer reflecting the assurances tions promise. the employee’s “continued employment, practices or continued and the employment receiving after the handbook industry employee of the which the is provided sufficient any consideration for 327, engaged.” Cal.Rptr. at at Id. original such modification of the contract 925-26; see, e.g., Phillips Alexander v. Oil Id.; employment.” of see also Carter v. Co., (Wyo.1985). 707 P.2d 1385 Community Kaskaskia Agency, Action 1056, 1059, Ill.App.3d 322 N.E.2d accept Some courts have refused to (1974); Bank, Pine River State 333 N.W. implied-in-fact an alteration of the at-will 629; 2d at Producing, Mobil Coal Inc. v. mutuality rule because it eliminate would Parks, (Wyo.1985). 704 P.2d Ad obligation of under the contract. These ditionally, “independent the consideration” concerns, however, are unfounded. The espoused in rule con Bihlmaier Rose mutuality ostensible need for arises from evidentiary stitutes an consideration itself, in the nature of the at-will rule and does not separate amount to a stan assumption a fundamental is that because determining dard for employ whether an employee may employ terminate the employment relationship ee’s is at will. time, relationship any employer ment at Pugh, Cal.App.3d See at should free In likewise be to do so. a 924-25; Cal.Rptr. at Pine River State however, economy, modem this “freedom” Bank, at If 333 N.W.2d 628-29. the em largely illusory. of is ployee given apart has from consideration Cleary, at 168 Cal. agreed the services he has to render for a Moreover, Rptr. inquiry at 725. into the duration, contract of set then that contract mutuality obligation “simply species is provision will be enforceable. The lack of inquiry adequacy of the into the forbidden consideration, separate however, is not fa of consideration....” Pine River State tal to a cause action based Mettille, v. 333 N.W.2d at 629. Bank express implied-in-fact promise by deed, party, employee, the fact that one employer employee’s con that moves the can terminate a contract at his or her will Instead, separate tract from at-will status. not does serve invalidate contract merely signals parties’ consideration party, employer, where the second clearly. Any intent more combination of speci bound to continue the contract for a might the factors mentioned above be suf period. fied time or Weiner McGraw- implied-in-fact promise. ficient to find an Hill, Inc., 458, 463-66, 57 N.Y.2d 457 N.Y. Separate consideration is one of those but 193, 196-97, S.2d 443 N.E.2d 444-45 factors. (1982); 1A Corbin on Contracts § (1963). Therefore, mutuality ability employees bring causes of obli implied-in- gation upon express should not to the en of action barrier based employer implied-in-fact promise promises forcement of an fact will provide construction of most employer employ- made eliminate the at-will distorting contracts. Courts have ex principles well-established paid pressed concern that due deference be permitted.” contract law and will not be managerial discretion and normal em Beck, 701 P.2d at 799. We held in Beck See, ployment e.g., Pugh, decisions. damages permissible that the for a cause Cal.App.3d at at 928. of action in contract for breach of the Nonetheless, promise where an enforceable implied good covenant of faith include all made, employees has should be able been types reasonably foreseeable conse- find redress when it is breached. quences naturally flowing from the breach. suggest I do not mean termi- Implied Breach of Covenant of nation cause without of an at-will Dealing Good Faith and Fair is tantamount to a implied breach of an recognized Utah has that all con scope covenant. The of the cove- contain covenant of faith and tracts setting nant is determined the factual dealing. Exch., fair Beck v. Farmers Ins. Indeed, which it is found. where the rea- (Utah 1985).11 in This expectations met, sonable are view, cludes, in this writer’s Moreover, there is no breach. the motive jurisdictions ap contracts. Other in terminating proached exception to the at-will rule ee, relevant, although possibly is not neces- Annotation, variety ways. in a Modern sarily key important issue. More is the Employer May Rule that Dis Status of employer’s conduct viewed in the context Reason, charge Employee any At-Will for terms, express of the relevant contractual (1982 Supp.1987). 12 In A.L.R.4th 544 & implied, employee’s and the reasonable deed, appears majority there to be no clear expectations. See, e.g., Rulon-Miller v. rule; many jurisdictions recently have con Corp., Int’l Business Machs. 162 Cal. sidered this issue and set forth their own 241, 253, App.3d 524, Cal.Rptr. 208 533 approach. (1984).12 Many finding of cases lack of the Montana, example, implies a covenant good part faith on the of an have good dealing employ faith and fair involved situations where the only ment contract where the conduct or commissions, salary, was denied or bene parties they words of the indicate that con See, e.g., fits. Reg Fortune v. Nat’l Cash See, templated e.g., such a covenant. Dare Co., 96, ister 373 Mass. 364 N.E.2d 1251 Co., 212 Mktg. v. Montana Petroleum (1977); Note, see also cases collected at 274, 1015, 1020(1984). Mont. Cal Protecting Employees Against At-Will permit ifornia used to a course of action Wrongful Discharge: Policy The Public sounding employer’s in tort for the breach 1931, Exception, 96 Harv.L.Rev. 1936 nn. implied good of the covenant of faith and (1983). cases, however, Not all have See, dealing. e.g., Cleary fair v. American been so limited. In Khanna v. Microdata Airlines, Inc., Cal.App.3d 111 168 Cal.App.3d Corp., Cal.Rptr. 170 215 (1980) Cal.Rptr. (disapproved by Foley (1985), given any the court noted that Corp., Interactive Data 47 Cal.3d dispositive factor is not of an action for P.2d Instead, wrongful discharge. question the remedies)). Foley, to tort With California employer’s good of an breach of the faith appears adopted position the covenant is one finder fact and can ability Court took in Beck that of a .for light only be determined relevant in tort for of the to recover breach all circumstances, including contract’s implied good covenant of faith and fair terms, conduct, dealing potential employer’s in a contract “has the and the em- contracts, 11. For commercial this covenant is cases that have described the incidents of the statutorily imposed. good though Utah Code Ann. duty of faith" even we do not (1980). Beck, 70A-1-203 § support a tort-based action. 701 P.2d at Beck, 12. As we noted in the consider- “[B]ecause similar, freely ations are look to the tort See expectations.13 exceptions under the second and third ployee’s reasonable Khanna, Cal.App.3d at 215 Cal. jury is entitled to a determination of wheth- case, good Rptr. any duty 867. In at implied-at- er Fashion Centre breached the independent in faith is “unconditional and good dealing law covenant of faith and fair requires to deal nature” and implied as well as terms of its fairly each other and to avoid act contract. right “injure will other to which scope good of the covenant of faith agreement.” receive the benefits of dealing fair is determined the factu- Cleary, 168 Cal. setting in al which it is formed. This in- see also (citation omitted); Rptr. at 728 any implied-in-fact cludes terms contractual Beck, 701 P.2d at 801; Ammerman v. proven par- are to exist between Exch., Farmers Ins. Utah 2d par- ties. The in this evidence case P.2d agreements actions and ties’ establishes concept good Admittedly, the faith prima showing facie of an covenant susceptible bright- and fair is not subsequent faith and a breach line definitions and tests. It should there- Fashion Centre. sparingly fore be used and with caution. occurred, injustice Where true has relief Fashion Centre created and distributed a provided. should be Care must be exer- disciplinary policy action which was read eclipsing by expand- cised to avoid the rule by plaintiff. and understood The stated exception. purpose “equitably was to constructively involving handle situations Analysis Wrongful Ter- C. of Plaintiffs disciplinary may action which result dis- mination Claims policy, employee.” missal of an Under this above, As discussed there are could be terminated without possible three situations where the at-will prior warning only specific for a few rea- apply rule to an con Among sons. these were the refusal unspecified tract for an term. One take a test and the failure to employee’s the where termination violates pass polygraph In a test.14 all other situa- important public policy. exception an This tions, however, its em- Fashion Centre told implicated is not in the case us. A before only ployees that termination would occur express implied second is an con where employee properly where the was warned period tractual term sets forth a of dura given opportunity to im- and a reasonable tion or limits dismissal to cause alone. Fi prove performance. policy The written nally, opinion discusses an cov goes extensive manual then on to outline enant of faith and fair in all warning procedures involved the employment contacts which would serve improve. allowing ee and him or her to It exception my rule. to the at-will view, thereby plaintiff appear for relief that Fashion Centre has stated claim would might possibly against by employer A list of factors in- nated the because of that relevant employee’s sex. clude: Corp., Int'l Machs. See Rulon-Miller v. Business (1) employee the was dis- whether or not at n. at 532 business, charged legitimate managerial n. 6. reasons; (2) and whether or not engaged employee the was in a sensitive 14. The entire list reads: (3) management position; confidential wheth- 1) Insubordination employee of inter- er or not the had a conflict 2) Dishonesty est; (4) person- employee’s whether or not the 3) Disclosing company informa- confidential al, endangered, private relationships or social tion injured jeopardized legit- employer’s 4) the company records Falsification of interests; (5) or not 5) property imate business whether company Destruction of violated, infringed 6) negligence the invaded or Gross 7) employee’s personal privacy polygraph and the to take a Refusal (6) 8) private relationships; pass polygraph personal, to and social Faitee 9) discrimi- Gross misconduct. whether or not the was cause, sponding feelings security commit- policy of the and adopted a dismissal being specific. exceptions positive and limited ment that a review creates. polygraph examinations was The use Moreover, plaintiff’s expectations were by necessary Fashion Centre deemed not be unreason- that she would terminated inventory investigate it to to allow order ably. previously, As stated Fashion Centre purpose This made evident shortages. was employed polygraph as a tool for inves- upon her hire to date of when plaintiff inventory had tigating shortages. Plaintiff employer’s and duties bene- employee’s and, previously polygraph taken two exams her.15 policies explained were to fits and the re- with no concrete information about Lerner, personnel Bennett Additionally, sults, passed she both. On assumed had director, plaintiff’s at trial that the testified exam, scheduled for third she day generally one tool used polygraph was but work, she did not want to arrived stated inventory investigate Centre to Fashion exam, requested and additional take Thus, by shortages. express terms going prepare herself if time to she was disciplinary policy, which Fashion Centre's compelled to take did not it. Plaintiff explained plaintiff understood and was expect, it for her to nor was reasonable by her, only for plaintiff could be dismissed submitting to expect, to be fired after and exception speci- certain cause with successfully passing polygraph exami- two Finally, circumstances. fied Fashion Centre nations. Such behavior event, agreed always to Fashion Centre policies inconsistent with its stated was equitably with termination. deal plaintiff’s ex- objectively with reasonable express of Fash- In addition to terms Thus, of both pectations. the conduct disciplinary policy, defendant’s ion Centre’s supports the conclu- defendant implied-in- consistent actions were disciplinary ac- that Fashion Centre’s sion contract limit- fact term of employees’ tion limited dismissal just providing dismissal situations situations, only relevant for-cause with the Throughout her employment with cause. being exception refusal to take a Centre, plaintiff given a num- Fashion was examination. performance ber of reviews. She scored argues Plaintiff that her dismissal reviews, exceptionally well on these disciplinary action improper because the provided by superiors the comments policy permits for “refusal termination consistently She was told were favorable. polygraph,” meaning single poly- take a superiors would several of her that she graph, and not for to submit refusal company promis- advance and had analysis separate polygraphs. three This This was ing future with Centre. oversimplified. Admittedly, it was un- praise. advancement not idle Plaintiff’s plaintiff request in this reasonable case to Im- rapid, salary. as was her in was climb polygraph ex- separate to submit to three plied performance was in these evaluations inventory shortage. one How- ams over review, an notion that with a favorable ever, given plaintiff’s if construction were expectations employee performing to was policy language question, in Fashion to the general, retained. such and would be requesting that be limited to Centre would employer by providing an reviews serve employee single polygraph take any encouraging the objective evaluation while per- for the entire of that exam duration per- employee high to maintain levels of Hence, employment. if son’s an in this formance. There was little reason twenty-year period, employed over a the were case to share these evaluations with shortages during inventory which several except employ- imply that the occur, al- might Fashion likely ee not Centre would would be retained or would single polygraph ex- give corré- likely provide be retained and lowed "shortages by entry explanation a doc 15. This document included attested containing vari for the plaintiff (polygraph)” appropriate ument check-off boxes with the box checked policies company ous which off. manager signed her hire. the time Thus, obviously age. amination. This construction is purpose and intent of the unacceptable. untenable and policy provision, dismissal explained by implied defendant by the conduct of I conclude on the evidence that Fashion parties, both were fulfilled at by least were, prima in this Centre’s actions case completion examination, of the second if facie, unreasonable. Fashion Centre re- the first. quested plaintiff that take three polygraph examinations over the course of several Polygraph examinations apparently are dealing single inventory months with a traumatic experience and emotional for shortage, notwithstanding the absence of plaintiff. Thus, she misgivings had serious implicated indication that she was in and doubts when asked to submit to a third shortage. plaintiff actually What but, exam. Initially she refused seeks, conclude, I compensation date, appointed requested additional time good breach the covenant of faith and to reschedule the examination. Fashion fair poly- connection with the ignored request Centre and immediate- graph procedure. ly implied terminated her. The term of dismissal for cause alone in the contract sections, As discussed the preceding capricious and wholly arbitrary ter- deny who seeks to Centre, mination taken in the rights ee under the contract previous face of cooperation by plaintiff, or, in conflicting the face of contractual suggest a implied breach of the covenant of agreements, arbitrarily terminating acts good faith dealing. and fair employee, the implied breaches covenant good dealing. appears faith and fair It Thus, view, in my the evidence at trial that such a covenant have been prima established as a facie matter that breached in the instant case. Fashion Cen- Fashion Centre breached the cove- requested tre that poly- take two good nant dealing. faith and fair Fash- graph examinations and did not tell her the ion experienced, Centre terminated an moti- result of either one. Based on this silence vated, favorably reviewed employee representations, and the examiner’s plain- who refused to poly- submit to the third passed tiff assumed that she had both. graph required examination of her in con- separate Plaintiff had submitted to the two junction single inventory shortage, with a polygraph examinations in order to aid though even she had been exonerated investigation Fashion Centre its of a previous requested two exams and had single inventory shortage. the third exam be rescheduled for day. light another This action occurred in Plaintiff’s contract with Fashion Centre employment policy of Fashion Centre’s own disciplinary included the action which essentially employee’s limited an ter- specified employees may be terminat- just mination to cause. portion ed for cause alone. Even the allow- employees Fashion Centre to dismiss Disposition D. for refusal to submit to polygraph “a” ex- implies amination a condition that the ter- This matter is reversed and remanded. remand, warning mination without permit will be cause On I would on trial both words, alone. In theory implied-in-fact other failure to submit of an contract conjunction examination in and the covenant of faith and fair inventory shortage dealing. with an Only joined would be suffi- Justice has Stewart grounds latter, however, cient opinion dismissal. An this the as to and acting deny so would Fashion Centre the Justice Zimmerman has limited his concur- ability investigate pursue implied-in-fact exception and a solution rence to the theo- Plaintiff, potentially problem. Therefore, to a ry. serious this case will be tried on however, trial, course, previously had submitted to two that basis. At of separate polygraph attempt examinations and had is free to demonstrate Centre fully cooperated with in Fashion Centre’s at- that there was no term the em- tempts investigate inventory ployment expressly the short- contract or that it was HALL, C.J., concurs in the disavowed, some reason the or that for HOWE, concurring opinion of Associate reason- was essential and polygraph third in of the Chief Justice. therefore not breach and able contract. ZIMMERMAN, (concurring in Justice successful, retrial, If, plaintiff is result): the damages. may award Both trial court the remanding join reversing I and consequential damages are and general I, parts II, I join matter for trial. also breaches, and conse- for contract available IV, III, opinion. and V.A. of the lead How- reasonably damages are “those quential ever, join I in the of that do not remainder of, reasonably contemplation the within misleading portion I find the that opinion. by, parties at the time the forseeable survey of the purports to the current state made.” Beck v. Farmers Ins. contract was judicially exceptions created to the course, Exch., 701 P.2d at 801. Of “[t]he doctrine, agree and I cannot ment-at-will damages will foreseeability any of such attempt to state some detail with hinge upon the nature and lan- always discharge-based causes of action will what the contract and the reasonable guage of recognized in in the future. Nor Utah parties.” (citing J. Id. expectations holding Be- join do I Perillo, & J. Contracts Calamari § has a of action for breach of a rube cause (2d ed.1977)). dealing. I good faith and fair covenant permit go jury would this case STEWART, J., concurs. question on the of whether defendant HOWE, Associate Chief Justice Fashion Centre a term breached (concurring): agreement between it and Berube. I, II, III. I concur I concur in Parts shown, Durham has the em As Justice V, in Parts only in the results IV origins ployment-at-will doctrine’s and theo deeming necessary appropriate it not underpinnings give it little claim to retical policy man- go beyond the written here to allegiance, and courts of various states our being employer, I which view ual have made inroads on the doctrine. How employment contract. part of the total ever, fully acknowledged in the a fact not Co., (Utah P.2d 83 Allied Dev. Rose v. opinion lead is that there is considerable 1986). The manual stated: divergence among the courts have ad below, listed Except in the situations issues, precise as to the both dressed unless a employee may not be dismissed exceptions that have content of the several warning a written have been verbal and degree accept developed and as to the opportunity to issued and a reasonable exceptions these has found.1 ance each of provided. improve performance has been in a state of the law in this area is Because flux, the at-will doctrine has without and because plaintiff was terminated in our well entrenched law I remand the case to become warning. would change potential in it to affect the has for a determination whether trial court Utah, every employer in practices of almost discharge of her violated its employer’s recognizing proceed care in she we must policy manual or whether own unreasonably exceptions re- to that doctrine. Johnson discharged for properly Cf. (Utah 1988)(Zim P.2d Rogers, or for fail- fusing to take a test merman, J., concurring) (adopting a con test, grounds do not ing polygraph issue approach and detailed to the warning. servative require previous Dertouzos, good Holland, dealing” study by fair rubric. example, Cor- faith and a recent the Rand 1. For Ebener, Legal thirty-seven and Economic & poration that while states concludes Termination, Wrongful policy" exception Consequences recognized “public have Inst, doctrine, This only thirty-one Civ. Just. RAND employment-at-will study recognizes deal of “implied- that there is a adopted also what can be termed an among divergence as to what each permit- courts approach, a mere five have in-fact” 1, exceptions at 13 n. these means. Id. the “covenant of cause of action under ted a driving); opinion exception the lead that such an damages for drunk punitive of Equalization County Bd. presumption recog- the at-will should Yorgason v. be of Utah, Corp., though Episcopal Management applica- 714 nized in even it is not ex rel. 1986) 653, 1, (Utah present in n. 5 ble case. While I am not 661 n. P.2d J., (advocating say (Zimmerman, concurring) prepared precise what the content of be, altering exception I specificity in charita that should am of the view caution and law). of action exemption that cause that accrue to property tax ble employee discharged pub- in violation of said, reversing and being All that we are ordinarily in I lic would not be tort. remanding for trial and are this matter public policy exception in would imbed change employment-at- in the signaling a by holding every employment the law that joining those in law of Utah. Because will implied-in-law contract has an covenant expressed themselves opinion the lead have discharged that the will respect they to the direction fully so with public policy. proof of violation Absent taking, briefly I will outline think we are tort, independent sufficient show principal points they raise. my views on damages for a of that recoverable breach opinion’s character- agree I with the lead covenant would be measured contract legitimate- doctrine as ization of the at-will Beck v. Farmers Ins. See principles only. consisting only presumption of a as to ly Exch., 795, (Utah 1985). 800 & n. 3 agreements what good As for the “covenant of faith and intend, presumption properly a that can be dealing” recognized by fair cause of action showing expressed of or im- rebutted a courts, notably a few most the California I plied contrary. intentions to the also courts, I appellate intermediate see no need agree logically, this means that no to address whether such a cause of action required separate consideration is to over- recognized in it is should be Utah because presumption mutuality come the and that unnecessary of this case. to the decision obligation necessary prerequisite of is not a presented, if the issue were I But even agreement in der- to enforcement of join opinion would not the lead on this ogation presumption. It is worth point. impedi- noting judicially that these created good of a covenant of faith rejection ments to of the at-will doctrine rubric dealing used the Cali appear to had their source in the same and fair has been have others to effective philosophical impulse pre- that crafted the fornia courts and a few employers variety of sumption place. ly impose upon the first duty unpredictable rather circumstances many The courts of other states have deprive employees of the not to benefits recently developed exceptions to the at-will See cause. just their without exceptions generally Those doctrine. 9-10; e.g., Wrongful Termination headings “public been classified under the Airlines, Inc., Cleary v. American policy,” “implied-in-fact,” and “covenant (1980). 443, Cal.Rptr. See, e.g., dealing.” good faith and fair exposes duty Breach Legal Dertouzos, Holland, Ebener, & damages. Cleary, to a tort action Consequences Wrongful Economic 729; Cal.Rptr. at Cal.App.3d at Inst, Termination, RAND for Civ. Wrongful Termination at 10.2 (1988) Wrong- 5-10,13 Just. [hereinafter Note, opinion recognizes, as we held Protecting Termination Em- ]; The lead ful Beck, Against Wrongful Dis- of the covenant ployees At-Will breach Exception, yields in Utah charge: Policy The Public good faith and fair damages only. But the for contract As for claim Harv.L.Rev. opinion completely fails to establish policy” exception, agree I lead “public 42, 765 recently Corp., 700 n. Supreme tive Data 47 Cal.3d Court has 2. The California permits Cleary to the extent that it 239 n. overruled 401 n. P.2d damages of an covenant (Cal.1988). for breach tort dealing. Foley fair v. Interac faith and determining grounded contract, for predictable guidelines of action is not tort. employer duty is and when an Candies, Pugh Inc., what See v. See’s 116 Cal. duty such a to an can found owe be 311, 324-30,171 App.3d Cal.Rptr. 924- give The result would be to employee. remand, appeal 203 Cal. after fact a license to determine the finders of App.3d impose their duty’s content and to version above, agree As noted I with the lead fact, duty, virtually any after the on opinion any separate that there need not be employer. I can understand the desire to promise for consideration a not to dis- justice is done to individual assure that will, charge agree and I also that there employees, uncertainty the cost of for but mutuality obligation no need be of before great employers simply justify too employee can to enforce sue such a proposed by of the cause of action creation promise. Because the at-will doctrine is opinion. the lead Until we have had a only presumption, presumption can be opportunity to consider minimum better by demonstrating rebutted that the rights obligations inhere in the arrangement did not intend the to be at relationship, as we did in Beck context, respect first-party representations in- will. In this contracts of surance, reject employer I would invitations to create in employee made man- uals, bulletins, this cause of action. legitimate and the like are determining apparent sources for inten- Finally, exception I come to the that can parties. go tions of the Because we need “implied-in-fact.” termed This term de- present no further than this to decide the em- scribes a trend to make it easier for case, precise param- I fix see no need to ployees employ- to demonstrate that their implied-in-fact exception. eters of and that ment was not at will there were However, that, having said I would not employers’ right on their to dis- limitations follow the most extreme cases that fall into charge Wrongful them. Termination at many Although opinion paints category, Pugh, 6-8. the lead this such as for single general picture part reject V.B.2. of a I the same reasons that the covenant issue, authority on this the fact is line of good faith and fair cause of divergent that courts have taken several provides predictability, action: it little approaches to the construction something critical in this area. See agreements implication ment and the of Wrongful Termination at 7-8. discharge. limiting terms discretion to case, Turning present to the facts of the 6-8; Note, Wrongful Termination at Pro- I conclude that Berube is entitled to have tecting Employees Against At-Will wrongful discharge claim decided Duty Wrongful Discharge: The to Termi- jury. Based on the contents of written Faith, Only nate in Good 93 Harv.L.Rev. manual, a reasonable finder of fact (1980); Annotation, 1820-21 Modem presumption could find that the that Be- Employer May Rule that Dis- Status of employee had been rube was an at-will Reason, charge Employee At-Will agree- rebutted. It could also find that the (1982 Supp. 12 Á.L.R. 4th & ment between Berube and Fashion Centre 1988). range approaches Those from sim- regarding the terms of her ply abolishing requirements separate implied-in-fact contained an term that Fash- mutuality obligation to consideration and discharge ion Berube for Centre would going determining much further polygraph examination a refusal to take a has conducted itself whether unless that refusal was unreasonable. except right discharge so to limit its And, light most construing the facts in the exemplify good cause. The cases that Berube, jury find could also favorable factually indistin- approach the latter reach that Fashion Centre breached guishable results from those reached lie by requiring term Berube to take a third covenant cases decided on the basis there were no unex- detector test when dealing. faith and fair testimony in plained of false implied-in-fact distinction cause indications is that the regarding first two tests the same short-

ages. Cynthia BIRKNER, Plaintiff, Appellee, Cross-Appellant, and

My jury conclusion that could find agreement that between Berube discharge Fashion Centre barred for a rea- sonable refusal to take a COUNTY, exami- SALT LAKE Defendant supported by

nation is the fact that the Appellant, possible other interpretation of their agreement would make it one for explain: agree- ment at will. Let me If the Flowers, individual, Michael ment between the were construed Appellee. Defendant and give Fashion Centre license ask Be- rube to take poly- an unlimited number No. 19966. graph discharge if, examinations and number, taking any after she refused to Supreme Court Utah. more, take one it essentially would be an employment agreement. at-will It is cer- March tainly within reason for a finder of fact to interpretation conclude that this of the con-

tract is inconsistent with its whole thrust. foregoing reasons, join only

For the I I, II, III, IV,

parts and V.A. of the lead

opinion. agree I opinion with the lead

this case should be remanded for retrial on claim, wrongful discharge at least to

the extent the claim is based on a

theory of breach of an term of the Construing contract. light Berube,

facts in a most favorable to

there is go sufficient evidence to to the

jury on this issue.

If on remand the finder of fact deter-

mines that Fashion Centre did breach the

agreement, damages for breach of that proven.

contract be awarded as As in Beck v. Farmers Insur- observed Exchange, general

ance both and conse-

quential damages are available contract

breaches, consequential damages are reasonably contemplation

“those within the

of, reasonably by, par- foreseeable

ties at the time the contract made.” at 801. And foreseeability P.2d “[t]he damages always hinge such will language the nature and of the con- expectations

tract and the reasonable parties.” (citing Id. J. Calamari & J.

Perillo, (2d Contracts at 523-25 § ed.1977)).

Case Details

Case Name: Berube v. Fashion Centre, Ltd.

Court Name: Utah Supreme Court

Date Published: Mar 20, 1989

Citation: 771 P.2d 1033

Docket Number: 20673

Court Abbreviation: Utah