Maine has been and remains an "employment-at-will" state. Under Maine law, an employee is an employee-at-will unless the employee has a clear, express agreement to the contrary. A contract for employment for a definite term, or a contract which expressly limits the employer's right to terminate the employee, can satisfy this clear, express agreement requirement. "Implied" employment contracts are not recognized in Maine. In December, 1996, the Maine Law Court decided two cases which show the current extent and limits of these legal principles.

     In Burnell v. Town of Kingfield, -- A.2d -- (Me. December 20, 1996), the plaintiff claimed that she was promised employment by the Town until another Town employee retired and that thereafter she would continue to be employed by the Town. Noting that the evidence showed that the other employee was likely to retire at some future time, but the date was unknown, the Law Court ruled that the promise of employment until the other employee retired was only a promise of employment for an indefinite term, not a definite term, and therefore the plaintiff was an employee-at-will. Similarly, the promise of employment after the other employee retired was again a promise of employment for an indefinite term, so the employment was terminable at will.

     In Gayer v. Bath Iron Works Corp., -- A.2d -- (Me. December 23, 1996), the Law Court ruled in favor of the plaintiffs in a case involving both breach of employment contract and tort claims. The plaintiffs were outside apprentices (i.e., they had not previously worked for BIW) initially hired by BIW and then dismissed before they started working when BIW terminated its apprenticeship program. The plaintiffs claimed they were promised employment for four years. This was a claim of employment for a definite term. The Court ruled that sufficient evidence supported this claim to warrant a trial on the nature and scope of the alleged employment contract. The plaintiffs also claimed that BIW negligently supplied false information to them when BIW made employment offers to them at a time it already knew that it would not be hiring outside applicants to its apprenticeship program. Again, the Court ruled that sufficient evidence supported this negligent misrepresentation claim to warrant a trial on it. Also, in connection with the negligent misrepresentation claim, the Court allowed the spouses of the plaintiffs to assert loss of consortium claims. The Court dismissed all of the other claims asserted by the plaintiffs: a claim for negligent failure to provide employment, a claim for negligent infliction of emotional distress, and a claim for punitive damages.

     The lessons to be learned for employers from the Burnell and Gayer cases are these:

     1. Be careful what you say or promise to job applicants or new employees about the expected duration of their employment, and document what you do say, if anything. Use express contract disclaimers in job application forms and other hiring documents. Such express disclaimers make it very difficult for a plaintiff to prove a clear, express employment agreement.

     2. Note that in the Gayer case the negligent misrepresentation claim was separate from the breach of contract claim. In other words, the plaintiffs may lose the breach of contract claim but still win the negligent misrepresentation claim. The use by claimants of negligent misrepresentation tort claims to "get around" the severe limits applicable to breach of contract claims is something that employers in Maine should take care to avoid. Such claims are based on false information, so employers may avoid such claims simply by being honest and accurate in the information supplied to job applicants and employees.

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Dated: January, 2000