The Legal Pinky Promise

The pinky promise (or pinky swear) is a physical gesture of sealing a verbal agreement. Children may lick their fingers before entwining pinkies and chanting the affirmation "pinky swear!" Rooted in Japanese folklore, the pinky promise is a precursor to stronger oaths such as a:

• handshake

• blood exchange

• verbal agreement

• written agreement

• contract

Forty-nine states in America (you're special, Montana) have an at-will employment regime. At-will employment means that an employer can terminate an employee at any time, for any legal reason (non-protected/discriminatory), or for no reason at all. Equally, an employee is free terminate the employment at any time, for any reason, or for no reason.

Employers are free to negate at-will doctrine by creating employment contracts or collective bargaining agreements that supersede the at-will presumption. But what happens if an employer doesn't offer a written contract, but implies that there is one? An implied contract is when words, actions, or circumstances create an understood expectation of a fixed term or indefinite term of employment. This could be a verbal promise, such as "you will always have a job here no matter what," a fixed routine of only firing for cause, comments written on performance reviews, or handbook language that gives the employee an expectation of continued employment for a guaranteed period.

Although implied contracts are usually difficult to prove, a judge can enforce one. "Courts may find that a contract can be inferred from the facts and circumstances of the employment, for example, from written manuals of policies and procedures." Like the pinky promise oath, an implied contract is viewed as a very basic, legitimate legal promise.

If authenticated, promises may be recognized as an exception that contradicts at-will employment. Employers should protect themselves by including at-will disclaimers on written materials and by continually expressing that policies and procedures do not create contractual rights. Avoid making verbal promises of continued employment, and train supervisors on the issue.

This blog is written from the perspective of a law student for educational purposes and should not be construed to be professional legal advice.