The Power of Promises
While researching my final paper for MJ-LEL Capstone, You're Hired: Just Kidding! An examination of high-volume hiring strategies, delays, and promissory estoppel liability many days and nights were spent researching promises. While a promise can simply be defined as a commitment by someone to do or not do something, I thought about the amount of trust required in making and accepting a promise. The obvious form of trust in the employment relationship is an offer of employment, whether verbal or written. I thought about all of the times I've put my trust in a company to follow through on their offer of employment. How through a brief interview, perhaps maybe an hour, the employer represents themselves to me and I to them, then one or perhaps both of us make the decision to take a leap of faith and promise each other to enter into an employment relationship.
Stephen B. Shepard stated, “A great brand is a promise, a compact with a customer about quality, reliability, innovation, and even community.” An employer brand is essentially what the company communicates as its identity to both potential and current employees, plainly said an employer brand should be a promise to its workers. Within the structure of every company is a complex network of promises that weave together coordinated activity in organizations. Within each vertical of an organization, hierarchy and positional power motivates employees to honor their promises. Even decentralized or matrix organizations must share assumptions or objectives to foster a mutual sense of personal or professional obligation to deliver results to the organization.
Promises are essential to the employment relationship, explains Professor Robert Hillman, because employers, through their communications, “seek to create the expectation of a stable, secure work environment,” and employees, “because of their general lack of contractual job security and their material and psychological investments in their jobs… are prone to rely on those messages.” Now, promises can be kept or broken, earning or destroying trust amongst the workforce and perhaps the community. When companies, and the individuals within a company, do what they say they will do, they create relationships within and outside of a company. The elements of trust and reliability are essential in any relationship, which in the employment setting is no different.
My final paper takes an in-depth look at promises made in the employment setting and how, on rare occasion, promises can result in legal liability. For example, In Bower v. AT&T Technologies, Inc., twenty-three AT&T workers who were notified of impending layoff’s continued working until the actual layoff date, based on their reliance of AT&T’s promise to rehire them if they continued working until the actual layoff date. These employees were constantly reassured jobs at AT&T and were encouraged to wait, resulting them in turning down job offers and delaying job searches in reliance upon these promises; however, when AT&T began hiring for the new positions promised to the former employees, none were hired. The court found that AT&T was liable for any detrimental reliance the former employees incurred as a result of their reliance on the promise of employment. The court distinguished between a case in which an employee at-will is terminated after hire and before work begins from an employee that is prevented from assuming promised at-will employment. The court found that "[s]hould [an] employer decide after hire to discharge the employee or change the terms of employment, they are completely within their rights and in utter compliance with their promise. But the court found that when an at-will employee is promised employment and never hired, that employee is entitled to recovery.
Under the theory of promissory estoppel, an employee may recover damages when he leaves one job upon reliance on another employment offer, where the new employer revokes the offer before the employee can perform.“Once an offer of employment is made—especially one that has been documented by letter or other writing—it is important to understand how to un-ring that bell without creating a legal cause of action for the almost-employee," said Maria Greco Danaher, a shareholder in the Pittsburgh office of employment law firm Ogletree Deakins.
While employment at-will has been accepted without question and embedded in American Law for over one hundred years. Promissory estoppel may be applied where "no contract exists because due to the bilateral power of termination neither party is committed to performance and the promises are, therefore, illusory." Therefore, between the two structures of contracts and employment at-will lies an aperture where scorned employees, or almost-employees can claim promissory estoppel.
In a study conducted of promissory estoppel cases over a two year period, employees won only 4.23% of cases. While this study was conducted in the mid-1990’s, a quick search of U.S. cases citing promissory estoppel causes of action under employment law since January 1, 2000, results in a total of 124 cases. Filtering these search results further by fact pattern including employment at-will agreements results a mere 36 cases (29% of cases): 15 of which were dismissed for failure to state a claim, 5 more were granted motions to dismiss, and the remaining 16 were granted motions for summary judgment, 3 of which ruled in favor of the employee (2.4% of cases). In 1999, Robert A. Hillman reported a startling lack of success of promissory estoppel cases in employment litigation, stating that courts rid themselves of employee promissory estoppel claims without a trial. Based on the search results from the prior 23 years, it is clear that despite an aperture for claims to exist, it is rare for an employee’s, or almost-employee, claim to see the light of day in a trial.
Throughout my own work experience of mass hiring or high-volume hiring, there have been delayed start dates in multiple scenarios and with multiple employers. High-volume hiring typically involves the recruitment and selection of entry-level employees that do not require a college degree and may not require any previous experience: examples include warehouse, retail, data entry, and food and beverage positions.
While conducting research of employment-related promissory estoppel claims from 2000 to 2023, no claims involved more than one plaintiff. While class action suits exist within promissory estoppel employment-related claims, no claims related to delayed start dates or rescinded job offers were found during research. Considering the twentieth century has seen an increase in the number of large corporations that seemingly dominate entire labor markets providing low-paid, unskilled, entry-level positions. I attempted to reconcile my own experience with delays of start dates associated with high-volume hiring and the lack of related promissory estoppel claims by conducting interviews with Human Resources Professionals in small, medium, and large employers that have all experienced delayed start dates during high-volume recruitment.
What I found was the pressure to maintain employer brand or retain a large workforce due to lengthy time to hire processes or volumes keep employers isolated from promissory estoppel liability. The power of an employer's promise is tied to their employer brand, and in today's world, keeping promises differentiates companies from each other.
 The Best Global Brands, Bloomberg (Aug. 5, 2001 at 10:00 PM), https://www.bloomberg.com/news/articles/2001-08-05/the-best-global-brands?utm_source=website&utm_medium=share&utm_campaign=copy  Robert A Hillman, The Unfulfillment Promise of Promissory Estoppel in the Employment Setting, 31 Rutgers L.J. 1, 2 (1999).
 852 F.2d 361 (8th Cir. 1988).
 852 F.2d 363 (8th Cir. 1988).  Id.
 See Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)  Roy Maurer, Beware: Rescinding Job Offers Can Prompt Legal Consequences, SHRM (August 25, 2016), https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/take-care-rescinding-job-offers.aspx.
 See Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn.1981)
 Robert A Hillman, The Unfulfillment Promise of Promissory Estoppel in the Employment Setting, 31 Rutgers L.J. 1, 2 (1999).  Thomson Reuters Westlaw Precision. https://1.next.westlaw.com/ (last visited Mar. 18, 2023).  Robert A Hillman, The Unfulfillment Promise of Promissory Estoppel in the Employment Setting, 31 Rutgers L.J. 1, 2 (1999).
 Thomson Reuters Westlaw Precision. https://1.next.westlaw.com/ (last visited Mar. 18, 2023).  Jones v. American General Life and Acc. Ins. Co., 213 F.R.D. 689, (S.D. Ga. 2002) “Retiree brought class action suit in state court against successor to former employer, seeking to enjoin successor from cancelling life insurance for retirees, or to recover cost of purchasing substitute coverage. After removal, original plaintiff and three new named plaintiffs filed motion for class certification.”
The Power of Promises © 2023 by Tara Spracklen is licensed underCC BY 4.0. To view a copy of this license, visit http://creativecommons.org/licenses/by/4.0/