Id. at 694, quoting Woolley v. Hoffmann-La Roche, Inc., 99 N.J. 284, 299 (1985). See LeMaitre v. Massachusetts Turnpike Auth., 452 Mass. 753, 755-756 (2008). As a general rule, for employers to ensure that a manual is not construed as a contract, "[a]ll that need be done is the inclusion in a very prominent position of an appropriate statement that there is no promise of any kind by the employer contained in the manual."

Indeed, before us, LVI does not suggest that only economic detriment may give rise to a promissory estoppel claim, and rightly so: the Supreme Judicial Court has found detriment in forbearance from filing a lawsuit, regardless of whether it would have been successful, Sullivan v. Chief Justice for Admin. and Mgt. of the Trial Court, 448 Mass. 15, 27-30, 858 N.E.2d 699 (2006), and other cases have found detriment in giving up the right to do something one is legally entitled to do. See, e.g., LeMaitre v. Massachusetts Turnpike Auth., 452 Mass. 753, 755 n.2, 897 N.E.2d 1218 (2008) (plaintiff remained in job based on rate of benefits promised in defendant's employee manual). A party can rely on a promise to his or her detriment without showing that he or she forewent some other economic opportunity.

As we said in Suominen, supra, although we recognize the confusing nature of the terminology, we will employ the more commonly used term “promissory estoppel,” which the Supreme Judicial Court continues to use. See, e.g., Sullivan v. Chief Justice for Admin. & Mgmt. of the Trial Ct., 448 Mass. 15, 28, 858 N.E.2d 699 (2006) ; LeMaitre v. Massachusetts Turnpike Authy., 452 Mass. 753, 755 n. 2, 897 N.E.2d 1218 (2008). Loranger Constr. Corp. v. E.F. Hauserman Co., 6 Mass.App.Ct. 152, 159, 374 N.E.2d 306, S.C., 376 Mass. 757, 384 N.E.2d 176 (1978) (finding it “doubtful” that G.L. c. 259, § 1, is applicable “where recovery is otherwise warranted on the basis of promissory estoppel”); Simon v. Simon, 35 Mass.App.Ct. 705, 711–712, 625 N.E.2d 564 (1994).

There is no "rigid list of prerequisites, but rather . . . factors that would make a difference or might make a difference in deciding whether the terms of a personnel manual were at least impliedly part of an employment contract." O'Brien, 664 N.E.2d at 847; see also LeMaitre v. Mass. Tpk. Auth., 452 Mass. 753, 897 N.E.2d 1218, 1218-19 (2008) (finding enforceable an incentive program described in employee handbook and clarifying that the case did not raise claim that handbook modified at-will status of a dismissed employee). Day's characterization of the Code of Ethics as a contract ignores the express contrary language in the documents accompanying the Code.

In the context of employee manuals, Massachusetts courts have made clear that “the context of the preparation and distribution of the employment policies is the most persuasive proof” in determining whether employment policies are implied contracts. LeMaitre v. Mass. Turnpike Auth., 897 N.E.2d 1218, 1220 (Mass. 2008) (employment manual that was regularly distributed created contractual rights and obligations)

quoting Shin v. Mass. Inst. of Tech., 2005 WL 1869101, at *6 (Mass. Super. Ct. June 27, 2005). Cf. LeMaitre v. Mass. Turnpike Auth., 70 Mass.App.Ct. 634, 638 (2007), aff'd, 452 Mass. 753 (2008) (finding it is “well settled” that the terms of a personnel manual may become an implied part of an at-will employee's employment contract if they meet the requirements for the formation of a unilateral contract).

Comley was an at-will employee and has failed to put forward facts sufficient to establish that any of Havas' policies, procedures, or actions led to the formation of a binding employment contract. See LeMaitre v. Massachusetts Tpk. Auth., 70 Mass.App.Ct. 634, 638, 876 N.E.2d 888 (2007), aff'd, 452 Mass. 753, 897 N.E.2d 1218 (2008); Jackson v. Action for Boston Cmty. Dev. Inc., 403 Mass. 8, 525 N.E.2d 411 (1988). An at-will employee may be terminated for any reason or for no reason at all and without prior warning.

Id. ¶ 24. Putting aside the conclusory nature of Firth's claim to be non-exempt, the distinguishing feature in Plaud was a signed employment contract. While it is "well-settled" in Massachusetts law that the terms of a personnel manual may become an implied part of an at-will employee's conditions of employment, this is true only if the circumstances in which the handbook is created and issued meet the requirements for the formation of a unilateral contract. LeMaitre v. Massachusetts Turnpike Auth., 70 Mass. App. Ct. 634, 638 (2007), aff'd, 452 Mass. 753 (2008). In Jackson v. Action for Boston Cmty. Dev., Inc., 403 Mass. 8, 14 (1988), the Supreme Judicial Court held that an implied employment contract did not exist as a matter of law where, as here, TD Bank retained the right to unilaterally modify the Handbook's terms; there was no negotiation between TD Bank and Firth regarding the terms of the Handbook; and the Handbook set out no specific term of Firth's employment.

In this regard, Ray points to the manual that Ropes distributes to its incoming associates explaining firm policies and making the customary blandishments about fair treatment and equal opportunity as establishing a binding employment contract. It is “well-settled” in Massachusetts that the terms of a personnel manual may constitute an implied employment contract, thus defeating the presumption that employment is at-will. But this is the case only if the terms of the manual meet the legal requirements for the formation of a unilateral contract. LeMaitre v. Massachusetts Turnpike Auth., 70 Mass.App.Ct. 634, 638, 876 N.E.2d 888 (2007), aff'd,452 Mass. 753, 897 N.E.2d 1218 (2008); see also O'Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 691, 664 N.E.2d 843 (1996). While there is no “rigid list of [contract] prerequisites,” the first question to be asked is whether it would be reasonable for the employee to regard the manual as a “binding commitment, legally enforceable, concerning the terms and conditions of his employment.”

Jackson v. Action for Boston Cmty. Dev., Inc., 403 Mass. 8, 525 N.E.2d 411, 415-16 (1988). There is no 'rigid list of prerequisites, but rather ... factors that would make a difference or might make a difference in deciding whether the terms of a personnel manual were at least impliedly part of an employment contract.' O'Brien [v. New England Telephone & Telegraph Company],[422 Mass. 686,] 664 N.E.2d [843] at 847 [(1996)]; see also LeMaitre v. Mass. Tpk. Auth., 452 Mass. 753, 897 N.E.2d 1218, 1218-19 (2008) (finding enforceable an incentive program described in employee handbook and clarifying that the case did not raise claim that handbook modified at-will status of a dismissed employee).Day v. Staples, Inc., 555 F.3d 42, 58-59 (1 Cir., 2009)(footnote omitted).