This article proposes a means of improving the at-will world for employees—insofar as that world includes the threat of a sudden end to one’s livelihood—that does not tamper with the “at-will-ness” of termination itself. An at-will employee should owe only the duty of “good faith and fair dealing” derived from contract law, which, in effect, would fill any hole left in the legal web defining the employment relationship when the duty of loyalty is excised. Part II of this article provides an overview of the duty of loyalty as it is applied by the courts in the various states. Part III returns to various aspects of the law regarding the duty of loyalty that are particularly ambiguous and argues the ambiguity infects the very validity of imposing a duty of loyalty and renders it very difficult for employers and employees to understand and comply with the duty. Part IV illustrates why the jurisprudential provenance of the duty of loyalty—emanating from the medieval doctrine of master and servant—understandably does not map clearly onto the twenty-first-century global employment market. Finally, Part V argues the duty of loyalty is not necessary to “protect” the employer from “bad” conduct on the part of the employee—which is its essential function—and that if removing the duty of loyalty does pose any significant threat, requiring good faith and fair dealing by the employee satisfactorily fills any perceived gaps.
Marian K. Riedy and Kim Hoyt Sperduto,
At-Will Fiduciaries? The Anomalies of a “Duty of Loyalty” in the Twenty-First Century,
93 Neb. L. Rev. 267
Available at: http://digitalcommons.unl.edu/nlr/vol93/iss2/2