Appeal from the Superior Court of the District of Columbia (CAB-2159-99) (Hon. Maurice A. Ross, Trial Judge).
The opinion of the court was delivered by: Farrell, Associate Judge
Before WASHINGTON, Chief Judge, and FARRELL and GLICKMAN, Associate Judges.
Kauffman sued his employer, International Brotherhood of Teamsters (hereafter IBT), in Superior Court for breach of an agreement to provide him with a monthly housing allowance. IBT had paid Kauffman the allowance starting in 1993, but in April 1996 discontinued it, prompting this suit. IBT defended by arguing in part that, as an at-will employee, Kauffman had impliedly agreed to elimination of the housing allowance by remaining an employee of IBT for years (namely, three) after the change took effect with his knowledge. The trial court, implicitly relying on our decision in National Rifle Ass'n v. Ailes, 428 A.2d 816 (D.C. 1981), granted summary judgment to IBT. We affirm.
Beginning in 1992, Kauffman took a leave of absence from his job with United Parcel Service in New Jersey to become an International Representative for IBT. IBT did not specify a period of time during which Kauffman would be employed by IBT, and his leave from UPS was to be active "as long as [he] wanted."*fn1 IBT's constitution provided that the General President could remove an International Representative "when he deems it for the best interests of the International Union." In 1993, Mario Perrucci, an IBT representative, asked Kauffman to relocate to Washington, D.C. Perrucci agreed that IBT would compensate Kauffman to offset the higher cost of living in Washington. Specifically, IBT offered to reimburse his housing expenses, and Kauffman accepted this offer as a condition of his agreement to relocate. Kauffman maintained his home in New Jersey as his permanent residence and obtained an apartment in Washington. IBT reimbursed him for his housing expenses in Washington until late 1994.
On December 15, 1994, IBT changed its policy somewhat and decided to pay Kauffman a monthly housing allowance of one thousand dollars, which would be included in the last paycheck of each month to cover expenses for the following month. In 1994, Kauffman still owned his home in New Jersey, but spent all of his time in Washington because of his assignment and because he and his wife had divorced. On July 29, 1995, Kauffman requested that IBT change his permanent address to a residence in Arlington, Virginia.
Around April 9, 1996, Kauffman received a memorandum from Howard Edwards, Director of Human Resources for IBT, notifying him that he "no longer qualif[ied]" for the housing allowance because he had relocated his permanent residence to the Washington, D.C. area (i.e., he would no longer be forced to maintain two residences), and that the allowance would be discontinued effective April 1.*fn2 The memorandum instructed him to contact Edwards if he had questions. Kauffman requested to meet with Aaron Belk, who was "party to the discussion and the agreement," but never obtained a meeting. Kauffman spoke to Edwards, who "reemphasized what the memo said." Kauffman also raised the issue in a meeting with a director and the office staff and sent memoranda. He understood, nevertheless, that IBT was no longer going to pay the housing allowance. IBT never changed its position and did not pay the allowance after April 1996. Kauffman sued in Superior Court on March 29, 1999, and IBT terminated his employment the next day.*fn3
Kauffman does not challenge his discharge as an employee by IBT in 1999. He does not, that is, dispute the fact that he was an "at-will" employee of IBT, a relationship "terminable . . . by either party at any time." Nickens v. Labor Agency of Metro.
Washington, 600 A.2d 813, 816 (D.C. 1991).*fn4 Kauffman sued IBT instead on the theory that his at-will status did not bar him from suing his employer for breach of a "subsidiary agreement" (Br. for App. at 14), namely, IBT's promise to pay him a housing allowance for the duration of his employment in Washington. Kauffman argues that IBT's action in terminating this allowance in April 1996 was a "unilateral change" of this agreement for which "there was [no] consideration" (id. at 12), and thus was a breach of contract. We agree with the trial court that settled law, beginning with our decision in National Rifle Ass'n v. Ailes, supra, refutes this claim.
In Ailes a number of employees who had been discharged as part of a reduction-in-force sued to recover monetary compensation for unused leave they had accrued in excess of a 225-hour limit that NRA had imposed by a policy change made during their employment. On the employer's appeal from an adverse jury verdict, this court agreed with the plaintiffs that, "as a general rule, an employee who accrues but does not take . . . paid leave is entitled to monetary compensation for that leave upon discharge . . . absent an agreement to the contrary." Ailes, 428 A.2d at 820. We held, however, that "once an employee learns about a new [employer] policy limiting compensation for unused leave upon termination, but elects to stay on the job and accept compensation, that decision is sufficient to imply an agreement to continue working subject to the new limitation." Id. at 822. This "implicit" or imputed agreement to a change, we said, required proof that the employee's "knowledge of the change was complete enough" to support an inference that his "decision to remain on the job was premised on acceptance of the new policy," id., and further required proof that he had been given "at least a brief period of time" to "remain on the job without prejudice" - i.e., without having "impl[iedly] acquiesce[d]" in the change - while considering whether to accept the change or leave the employment. Id. at 822, 823. Applying these standards to the facts at hand, we sustained the jury's finding as to certain of the employees that there was an inadequate basis "for imputing [to them] a belief that the [225-hour policy] limit applied to them," id. at 824, but as to others, whose awareness of the change and its application to them was undisputed, we held that they "must be said as a matter of law to have agreed to that limitation." Id. at 825.
Ailes did not expressly confine itself to agreement by at-will employees, though we think that is its clear implication.*fn5 So viewed, the principle Ailes established for this jurisdiction is in keeping with the rule adopted by most courts considering the issue that an employer may prospectively modify the terms of at-will employment and that the employee's continued service amounts to acceptance of the modification. See Cotter v. Desert Palace, Inc., 880 F.2d 1142, 1145 (9th Cir. 1989); Martin v. Airborne Express, 16 F. Supp. 2d 623, 632 (E.D.N.C. 1996); Martin v. Golden Corral Corp., 601 So. 2d 1316, 1317 (Fla. Dist. Ct. App. 1992); Moody v. Bogue, 310 N.W.2d 655, 660-61 (Iowa Ct. App. 1981); Stieber v. Journal Publ'g Co., 901 P.2d 201, 204 (N.M. Ct. App. 1995); Albrant v. Sterling Furniture Co., 736 P.2d 201, 203 (Ore. Ct. App. 1987); In re Dillard Dep't Stores, Inc., 198 S.W.3d 778, 780 (Tex. 2006); Hathaway v. General Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986); see also Thomas G. Fischer, Sufficiency of Notice of Modification in Terms of Compensation of At-Will Employee Who Continues Performance to Bind Employee, 69 A.L.R. 4th 1145, 1147 (1989). These courts hold that the ability to terminate the employment relationship at will necessarily includes the ability to alter its terms, and that permitting such modification avoids the undesirable result of encouraging employers to fire employees who do not expressly agree to new terms. See, e.g., Cotter, 880 F.2d at 1145; Stieber, 901 P.2d at 204.
Contrary to Kauffman's argument, contract modifications in this context are not unilateral and without consideration. Rather, unlike employment contracts for a fixed duration, neither party to at-will employment is bound to continue performance, and thus courts properly view future performance by each as valid consideration for the change in terms. See Curtis 1000, Inc. v. Suess, 24 F.3d 941, 947 (7th Cir. 1994) ("In the case of employment at will . . . continued employment for a substantial period is good consideration for the [new] covenant."); Schoppert v. CCTC Int'l, Inc., 972 F. Supp. 444, 447-48 (N.D. Ill. 1997); Martin v. Airborne Express, 16 F. Supp. 2d at 632; DiGiacinto v. Ameriko-Omserv Corp., 69 Cal. Rptr. 2d 300, 305 (Cal. App. 1997). As the court observed in Curtis 1000, Inc., supra, a contrary view "refus[ing] to regard continued employment as consideration" for a change imposed during the employment ...