Article by John Devlin
It may well be that the Louisiana Civil Code articles dealing with employment should be comprehensively revised and expanded, so that the Code conforms with the reality of employment relations today. But it is the thesis of this article that until such a revision occurs, Louisiana courts can and should interpret employment contracts according to the same principles that govern all other commercial obligations, and further, that if the courts were to do so, they could retain the legitimate benefits of the general rule of employment at will while preventing its most egregious abuses. The Louisiana Civil Code recognizes important distinctions between contracts for a fixed term and contracts not for a fixed term. Thus, one cannot, consistent with the Code, require “good cause” terminations of employees who do not have fixed-term contracts. However, properly interpreted, the Louisiana Civil Code requires the parties to all contracts, including employment contracts of indefinite term, to perform their obligations in good faith.
Part I of this article sets the stage by tracing the development of the principle of employment at will in Louisiana. Part II focuses on Louisiana Civil Code articles 167, 2746, and especially 2747—the texts that have been cited by courts and litigants to justify their treatment of employment for an indefinite term as an exception to the general rules governing obligations under the Code. Part II also demonstrates that those articles should not be interpreted in a broad manner. Part III then argues that at-will employment contracts should be constrained by the same obligations of good faith that the Louisiana Civil Code imposes on all other contracting parties.
One final note seems appropriate at the outset. It could be argued that even if the doctrine of employment at will in general, and article 2747 in particular, have been wrongly interpreted, the error has become so rooted in Louisiana law that it should now be changed only by legislation. The argument is not without force. Nonetheless, it should not preclude reinterpretation, if such reinterpretation proves justified. While the general concept of employment at will certainly is deeply embedded in the Code, that general concept is not under attack here. By contrast, the misreading of article 2747 and the subsequent absolutist interpretation of employer's rights under the doctrine of employment at will—which are under attack in this article—are both of much more recent vintage and dubious provenance. In any event, civilian legal theory teaches that the law is found in the written Code itself rather than in the jurisprudence interpreting that Code. And certainly the Louisiana Supreme Court has acted to correct other errors of interpretation in the Civil Code that crept into Louisiana jurisprudence through mistaken reliance on common-law principles. The same action is required here.
About the Author
John Devlin. Professor of Law, Paul M. Hebert Law Center of the Louisiana State University; J.D. 1980, Columbia University.
Citation
69 Tul. L. Rev. 1513 (1995)