Musings on Employment at Will (Part 1)

This is the first post in what I expect to be an occasional series on the doctrine of employment at will.  At this point in time, I have no idea how many posts I may write on this subject.

Employment at will is the most important concept in employment law that most people do not understand.  Most lawyers in the U.S. are familiar with the concept.  Some laypeople have a general idea that their state (if it’s not Montana) is an “employment at will” state.  But they often do not know what that means, and almost certainly do not know how this legal doctrine originated.

Many laypeople in the U.S. do not understand that they are employed at will.  They believe that their employers must have a good reason to fire them.  If they were employed in almost any other country, that belief would be accurate.  The United States is one of the few countries in the world in which an employer can fire an employee without having to have a reason for that decision.

What is employment at will?  I like to define it as the legal presumption that a person who is employed for an indefinite period of time can be fired for a good reason, a bad reason or no reason at all, as long as it’s not an unlawful reason.

There are several situations in which this legal doctrine does not apply:

  1. Persons who have a contract for employment for a specific term, or length of time.  Not surprisingly in 21st century America, there is a class divide between the few who have such contracts and those who do not.  Highly compensated executives, professional athletes and media employees (e.g., television news anchors) often have such contracts, given their market power.  Such contracts are rare outside those employee groups.
  2. Employees who are covered by a collective bargaining agreement — a contract between a labor union and an employer — generally can be fired only for a good reason.
  3. Public employees often can be fired only for cause.  That generally applies only after the employee has satisfactorily completed a probationary period of employment.  And some government employers, usually local governments, maintain employment at will policies.

Outside those situations, employment at will is the default rule in the United States.  Plaintiffs’ lawyers try to identify claims that could provide relief for their clients.  The most common are statutory claims, such as those based on anti-discrimination laws; contract claims; and tort claims, such as fraud or wrongful discharge.  But employment at will is the background to all of those claims.  It is what many judges feel to be the state of nature, the way they understand the world of employment works.

In reality, employment at will arose from obscure origins, is justified by questionable assumptions, and often leads to unjust results.  Many people in the U.S. accept it because they too believe that that is how the world works.  The fact that employment at will can be used to facilitate sexual harassment, or to punish whistleblowers, or to prevent unionization is viewed as an unfortunate by-product of a rule they believe to be universal.

In fact, that is not how most of the world works. But that will require more posts to explain.

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