Hunt & Associates P.C.

At-Will Employees are At-Will Employees: Tautological Analysis Leads the Court of Appeals to Hold that Words Mean What They Say and Say What They Mean

Wittgenstein wrote that “all true statements are ultimately tautological.” In other words, a thing or concept is what it is. A recent Oregon Court of Appeals decision illustrates the point twice in the context of at-will employees. In Cocchiara v. Lithia Motors, Inc., 247 Or App 545 (2011) the court held:

1. That an offer of at-will employment may be canceled without liability on account of the offer itself; and,

2. An at-will employee with a disability remains an at-will employee.

The plaintiff in Cocchiara told his employer that because he needed to work in a less stressful environment he was accepting a job with another employer. His employer told him it would offer him a less stressful job, albeit as an at-will employee, if he stayed, so the plaintiff withdrew his acceptance of the job offer with the prospective new employer. His employer then withdrew its offer of employment after which the plaintiff learned that the offer he’d accepted and then rejected earlier was no longer available to him.

The court held that he was not damaged by his reliance on the offer of at-will employment since such an offer did not, of itself, obligate his employer to employ him for any length of time. Since the employer could have terminated his employment the instant he began work without liability, the employer was also free to cancel its offer of employment before plaintiff began work.

Although not addressed in the decision, the court might have noted that just as the at-will relationship gave plaintiff the freedom to withdraw his acceptance of the prospective new employer’s offer without liability, so his own employer was free to withdraw its offer to him without liability. Like many employees, the plaintiff was probably insensitive to the irony of these facts in the context of his claim.

In reaching its conclusion the court was careful to distinguish between this case where the only representation the employer made was an offer of at-will employment and those cases, e.g., Arboireau v. Adidas-Salomon AG, 347 F3d 1158 (9th Cir. 2003) and Meade v. Cedarapids, Inc., 164 F3d 1218 (9th Cir. 1999), in which the employer was held to be potentially liable for misrepresenting the location or conditions of the at-will employment it offered.

The plaintiff in Cocchiara also claimed that under state law his employer was statutorily obligated to give him a job which accommodated his disability. Thus, he argued, the position offered him was, by virtue of his disability, no longer at-will. The court quickly and cogently rejected that argument noting that:

“. . . an at-will job remains an at-will job, even when a disabled individual holds it, and even when the individual has been given the job as an accommodation for his or her disabilities. . . [B]ecause defendants could have terminated plaintiff from the ‘corporate job’ at any time, even if they had given him that position, plaintiff could not reasonably rely on any promise of employment in the job, and he has no claim for damages associated with not having been hired into it.”

In short, the court, holding that at-will employment is at-will employment, illustrates the application of Wittgenstein’s dictum: all true statements are ultimately tautological.

© 02/15/2012 Lawrence B. Hunt of Hunt & Associates, P.C. All rights reserved.

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