With all the talk I’m hearing and reading from some that believe Unions and collective bargaining are no longer necessary, I thought I would share a paper I wrote regarding the “employment at will” doctrine and how unions are still very much necessary in today’s world.
Employment “At-Will” is an idea that came to being in the United States of the late 19th century. It provides that an individual can provide their labor to another individual or entity in exchange for wages, and that either party can severe the arrangement, for any reason, without cause. Originally, it was assumed that the employer and the employee where on equal footing, thus the arrangement was considered equitable to both parties. It was also assumed, via the doctrines espoused by the “free market” principle of the “invisible hand” that both parties would do “the right thing” for their own self interest, thus businesses would not sever relationships with employees without good reason; such as that the employee was not doing their job properly or was not providing the service to the business for which he was hired to accomplish.
This doctrine is attributed to the concepts espoused by Horace C. Wood, in Master and Servant § 134, at pages 272-273 (1877). Within this legal treatise about employment law, Wood unintentionally and erroneously, cited a serious of four court cases, which he believed laid the foundation that an employer could fire an employee for any reason. However, the court cases, he cited, did not support his claim. However, due to the laissez faire business climate at the time, many pro business advocates and judges used his thesis to further the concept.
“In a serious of Court Cases, Soon after Wood’s treatise appeared, various courts began citing the rule in his treatise, and thus the rule became accepted law. For example:
- McCullough Iron Co. v. Carpenter, 11 A. 176, 178-179 (Md. 1887) (“[Wood’s treatise] is an American authority of high repute ….”);
- East Line and Red River Railroad v. Scott, 10 S.W. 99, 102 (Tex. 1888);
- In re Philadelphia Packing & Provision Co., 1894 WL 3641 at *3 (Pa.Com.Pl. 1894);
- Martin v. New York Life Ins. Co., 42 N.E. 416, 417 (N.Y. 1895) (“… we think the rule is correctly stated by Mr. Wood, and it has been adopted in a number of states.”);
- Greer v. Arlington Mills Mfg. Co., 43 A. 609, 610 (Del.Super. 1899) (“Wood, in his Law of Master and Servant (§ 134), very clearly states the difference between the rule which obtains in this country and the one in England, and I can find it nowhere more intelligently and satisfactorily stated. It is as follows:” [quoting nearly one page from Wood])
also “We have no doubt that the great preponderance of the best-considered cases in this country recognize and affirm the rule laid down by Wood in his work on Master and Servant, and which he terms the ‘American rule,’ ….” Greer at 612.
- Harrod v. Wineman, 125 N.W. 812, 813 (Iowa 1910) (“… in this country it is held by an overwhelming weight of authority that a contract of indefinite employment may be abandoned at will by either party without incurring any liability to the other for damages. The cases are too numerous to justify citation, but see ….” [citing four secondary sources, including Wood’s Master and Servant.” (Standler, 2000)
Over the years this doctrine had become the rule governing employment. However, due to a series of ideological changes starting with the formation of labor unions, then erupting after the Great Depression and the advent of Franklin D. Roosevelt’s “New Deal”, the ideals and fairness of the “At-will employment doctrine, started to be questioned.
During the 1960’s and the civil rights movement, the concept of being able to fire or not hire an employee for “ANY” reason, came under scrutiny, especially where one’s color, race, sex, religion or national origin where the reason. Starting in 1963, with the passage of the Equal Pay Act of 1963 and further in 1964, with Title VII of the Civil Rights Act of 1964 employment decisions based on color, race, sex, religion or national origin became illegal across the United States.
Later, age discrimination was added to the Federally banned reasons for firing or refusing to hire an employee, with the passage of the Age Discrimination in Employment Act of 1967. In 1973, another class of citizens, the disabled, started to receive some federal protection in employment issues, with the Rehabilitation Act of 1963. However, that legislation was very limited and didn’t address all disabilities; it primarily on protected certain handicapped conditions. . In 1990, the Americans with Disabilities Act of 1990 was enacted and finally provided federal employment protection for individuals with all disabilities. It outlawed the practice nationally, of any employment decision on the basis of an individual’s disability.
While the federal government has come to the aid for some Americans with some statutes governing employment issues, on the whole, employment issues are under the jurisdiction of the individual states. As such, state laws are the primary determinant of employer/employee legalities.
All but one State does not employ the “employment at will doctrine”. In 1987, Montana passed “The Montana Wrongful Discharge from Employment Act” (Mont. Code Ann. § 39-2-901) which provides that an employee needs to be let go for “just cause”.
Other states have replied by providing some exceptions to the “At-will” doctrine. However the rules are somewhat murky and are not very specific and thus can lead to confusion, especially with organizations which have employees in many states.
Some states provide exceptions based on “public policy”, which is the concept where an employer can not fire an employee if it would violate the states public policy or a state or federal statute. Forty- three (43) states currently have such a rule. Alabama, Georgia, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida are the seven states without this exception.
Thirty-seven (37) states have “implied contract” provision as an exception to the “at-will” doctrine. The implied contract states that “an employer may not fire an employee when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists.”(Muhl, 2001). This can come about if the company has company handbooks, or policies which provide the specifics of how employee discipline or separation issues are supposed to be handled. If the employer violates their own policies, they can be held liable for “breach of implied contract”. The thirteen states which do have implied contract provisions are: Delaware, Florida, Georgia, Indiana, Louisiana, Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island, Texas and Virginia.
Unfortunately, this provision isn’t always accepted by the courts even in the states which may allow for this exception. There have been court cases in NY and Texas, where the courts ruled against the rule since the state law did not recognize the ability to sue for wrongful discharge and thus upheld the “at-will” doctrine.
The last exception to the “employment at-will” doctrine is the “covenant of good faith and fair dealing”. This concept provides that all employer/employee relations are subject to “good faith and fair dealing”, thus providing a “just cause” concept to the idea of an employer requested employment separation. Only eleven (11) U.S. States, provide this exception: Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah and Wyoming. However, the level of broadness of the concept varies from state to state, with Montana’s interpretation being the most “employee” friendly.
There are a few other concepts which do not adhere to the “at-will” doctrine, but they are not exceptions, but rather different classes of employment. While most private industry employees in the United States are “at-will” employees, based on State Laws, other individual’s employment is governed by actual contracts or collective bargaining agreements. Also, government employees, whether they are of federal, state or municipal governments, are not subject to the “at-will” doctrine.
Union employee’s relationships with their employers are subject to the collective bargaining contracts that the union negotiates for them with the employer. As such the terms of their employment is specifically laid out within the actual contract, thus the terms often dictate under what situations the employee can be released of their duty from the employer.
Certain employees are able to negotiate actual employment contracts with their employers. These contracts often stipulate various provisions between the two parties, including under what circumstances the parties may part company and any financial considerations which may apply if either party attempts to severe the relationship before it matures. Usually, these contracts are provided to “key” employees or for executive positions. On occasion, some other employees, with special skills, knowledge or client base may also be offered contracts or may be able to negotiate such as conditions of their employment with an organization.
Finally where government employees are concerned, while many do have union representation which governs their employment specifications, many assume their employment is not subject to the “at-will” doctrine, for this reason. However, my research has discovered that even without the union representation and contracts, they are still exempt from the “at-will” doctrine, because the government can not release an employee from duty, if the behavior for which they are being let go, may be interpreted to be in violation of the individuals’ Federal or State constitutional rights. As such, these employees are not “at-will” because they can not be discharged from their duties for “any” reason. For example, if a federal government employee where discharged for writing an opinion piece for their local paper, thus expressing their 1st amendment right to free speech, their employer, the government, could not fire them for that reason. Whereas, an employee of a private company, who is an “at will employee” who elected to write an ob-ed that their boss did not like, could be let go for that reason without recourse toward the employer.
While in some ways, the employment at will doctrine seems to be a good idea, for both parties, as it allows either party to severe the relationship. However, the balance of power between an employer and an employee is not an equitable one. As our society has evolved, so has our ability to provide for ourselves. While we once were an agriculture society, where individuals hunted, grew their own food and literally built their own homes on land they themselves settled, that is not how individuals in our current society provide for their basic survival needs. Today, in order for an individual to fulfill their basic needs of food and shelter, individuals require money to purchase needs. As such, unless they were born with a substantial trust fund, an individual must have some sort of financial resource, such as an income from which they can use to survive. Our socially accepted method of income generation is employment; whether an individual accepts employment from a private company, an individual, the government or if they are able to be self employed, the goal is through work they can earn money to provide for their survival.
The transaction between an individual (employee) and an entity (an employer) conveys the idea that both are providing to each other what they both need. In theory, that implies that the relationship is equitable. However, the reality is that the financial resources of the employer are usually much more than the financial resources of the employee. As such, usually the employee needs the employer more than the employer needs that particular individual, as there are usually others who are equally able to provide the service which the employer requires. Therefore, the relationship is not equitable and thus the power is with the employer.
The At-will doctrine gives the employer, who already has an unfair advantage within the transaction another advantage over the employee. Thus creating a situation, whereas the employee is at the mercy of the employer for their livelihood and thus their ability to survive. This in turn creates an atmosphere of fear on behalf of the employee and thus he/she is more likely to condone whatever the employer dictates, even if it is against the individuals own ethics and beliefs. Often times the employee must put on a false persona while at work, in order to ensure they “fit in” so as not to place their job in jeopardy. It often is not enough that the individual comes to work, does their job effectively, and provides the service they were hired to do, many times, especially today, their personal habits and out of work activities are subject to their employer’s approval. Under the “at will” doctrine, employers can let an employee go for just about any transgression of which they do not approve.
While, in theory, it would seem prudent, that an employee would not want to work under such conditions and thus because the “at-will” doctrine works both ways, the employee could quit and find other employment. However, while that is true, there must be a market for their services. If the employee is not one with “special” talents are skills, they might not be able to find other employment. In addition, if they are let go for “any” reason, some of which, might include they “just didn’t get along with the boss” than their reputation will be affected and other employers might not being willing to hire them, because of the previous boss’ opinion. In addition, while they are looking for new employment opportunities, they may not have adequate financial resources required for basic survival. Thus, the at-will doctrine is much more harmful to employees than it is to employers.
According to the ACLU, approximately 200,000 Americans lose their jobs unjustly every year. While there are many wonderful organizations which have respect for their employees and recognize their employees are a reason for their success, sadly, there are still many that are not so enlightened and treat their employees poorly. Statistics and medical research show a correlation between “toxic” work environments and health ailments, which affects our society as a whole. In addition, while numbers can be found for those who have filed lawsuits or formal complaints, I wonder how many are out there, who were the victims of unjust firing, who don’t come forward. Sadly, there are many in our society whose lives are severely damaged by these actions of the unscrupulous employers.
The United States is the only major, industrialized, country which does not protect worker’s rights. There are many who may argue, that what other countries do is not relevant; I would suggest that in a global economy that is a very disingenuous statement. We are competing with workers and companies literally located all over the globe. While some countries are not as evolved or civilized in their treatment of employees, others are ahead of the pack. In general, those countries which do not protect they workers are primarily third world and have less educated work force or are primarily manufacturing centers. Whereas, those societies which behave in a more worker friendly atmosphere have higher education standards and a more sophisticated populace. Why would we want to behave like a third world country?
At-Will Employment. (2009). The American heritage dictionary of business terms. Retrieved (2009, December 14) from http://www.yourdictionary.com/business/at-will-employment
Employment At Will. (2008). West encyclopedia of american law. Retrieved (2009, December 14) from http://legal-dictionary.thefreedictionary.com/Employment+at+Will
Muhl, C.J. (2001). Employment at will. Monthly Labor Review, Retrieved from http://www.bls.gov/opub/mlr/2001/01/art1full.pdf
The At-will presumptions and Exceptions To The Rule. (2009). Retrieved from http://www.ncsl.org/Default.aspx?TabId=13344
Your rights – at will employment. (2006, March 7). Retrieved from http://www.workplacefairness.org/atwill?agree=yes
Foulkes, A. (2005, May 23). In defense of employment-at-will. Retrieved from http://mises.org/story/1821
ACLU, Initials. (n.d.). Rights of Employees. ‘Lectric law library. Retrieved (2009, December 14) from http://www.lectlaw.com/files/emp08.htm
Pitchford, G.K. (2001, January 3). An Examination of at-will employment doctrine. Retrieved from http://www.ala-apa.org/newsletter/vol2no08/spotlight.html
Standler, R.B. (2000, September 30). History of at-will employment law in the united states. Retrieved from http://www.rbs2.com/atwill.htm