Just as certain courts have resorted to inventing "public policy" exceptions, other courts have invented contracts to circumvent the employment-at-will rule. Courts have turned their attention to verbal promises, policy manuals, personnel guidelines, job evaluations, dispute resolution procedures and other patterns of employer behavior to find the existence of contracts providing employees with "just cause" protection.

Judicial invention of contracts is indeed necessary for this exception to work, since one of the fundamental legal requirements of a true contract – mutuality of obligation (where each party is under a legal duty to the other) – is missing. Mutuality of obligation requires consideration (value) to be given by each party to the other in order to make the contract valid. In an employment setting where there are no explicit contractual provisions concerning conditions and duration of employment, the employee's consideration for the establishment of a mutually binding contract (whether for "just cause" or for employment of a certain duration or for any other specific conditions of employment) is missing. The employee is not obligated to work for the employer, and thus there is no consideration flowing from the employee to the employer to make such a contract binding. In short, there is no real contract.

So a court wishing to impose "just cause" or other contractual requirements upon the employer must engage in an act of fiction. It must invent a contract – imply a contract. The court must find that an employee's mere coming to work constitutes the necessary consideration for the right to such "just cause" or other employment benefit. Even though the employee never verbally or in writing came to an agreement with the employer on the duration of the employment or the non-wage and benefit conditions of employment, the court must find that the employee intended his or her mere daily appearance at work to be the consideration for just cause employment. By inventing this fictional consideration which was never contemplated by the parties, the court destroys the most fundamental and essential cornerstone of the traditional contract: that the contracting parties had a "meeting of the minds". The court must pretend that there was a meeting of the minds, even though in fact there never was.

This invention of contract is now utilized to varying degrees by the courts of many states. Before turning to the most egregious example, practiced by Michigan's activist judiciary, it Is appropriate to look briefly at the less extensive invention of contracts practiced in some of these other states. The favorite judicial source for implied contract promises is the policy manual or personnel guide. Examples of courts giving contractual status to such employer publications have become quite common. In WooIley v. Hoffman-La Roche, lnc., [25] for example, the New Jersey Supreme Court bound the employer to a personnel policy manual provision on termination which promised to discharge employees only for cause. In Duldulao v. St. Mary of Nazareth Hospital Center [26] the Illinois Supreme Court held that "an employee handbook or other policy statement creates enforceable contract rights" when the promise Is clear enough so that the employee would reasonably believe that an offer has been made and the handbook is distributed in such manner that the employee is aware of its contents. The employee must simply commence work after becoming aware of the handbook contents.

Some courts have gone further and found "just cause" protection even where the employer's materials provide no such explicit protection. In Pugh v. See's Candies, Inc. [27] the plaintiff had been employed by the defendant for 32 years, during which time he had worked his way up the corporate ladder from dishwasher to vice president, receiving many commendations. Throughout the period of his employ, the company maintained a practice of not terminating administrative personnel without good cause. On this evidence of a practice, the California Appeals Court concluded that the jury could determine the existence of an implied promise that the employer would not arbitrarily terminate the plaintiff.

Activist courts now look to everything from specific promises in specific situations to general imprecise statements of good intent to find contractually binding commitments on the part of the employer to the employee. The power of enforceability granted upon the recognition of an implied contract is used to bend and shape employer behavior to the will of the jury and the judge. It does not matter to the courts which impose such implied contract law on private parties that the parties never intended to contract – that there never was a true "meeting of the minds". These courts instead act after the fact, contorting common taw principles in order to achieve their idea of good results.

Fortunately, the willingness of courts to impose a contract merely on the basis of general workplace atmosphere and broad patterns of fair dealing is still very much a minority view. Just like most courts have been unwilling to expand tort taw to cover the employment relationship with "covenants" of fair dealing and general niceness, most courts have limited their implied contract holdings to concrete written representations, to the extent that they have been willing to imply a contract at all. It may be that courts have begun to recognize that their intervention into the employment relationship has become too intrusive and that firm new lines need to be drawn. Any such acknowledgment is a step in the right direction. Nevertheless, the state-to-state patchwork of conflicting rules that such line drawing would produce is disturbing, and it certainly does not assist employers in states with liberal activist judges, such as Michigan.