At-will employment is a term used in U.S. labor law for contractual relationships in which an employee can be dismissed by an employer for any reason (that is, without having to establish "just cause" for termination), and without warning,
as long as the reason is not illegal (e.g. firing because of the
employee's race, religion or sexuality). When an employee is
acknowledged as being hired "at will," courts deny the employee any
claim for loss resulting from the dismissal. The rule is justified by
its proponents on the basis that an employee may be similarly entitled
to leave his or her job without reason or warning. The practice is seen as unjust by those who view the employment relationship as characterized by inequality of bargaining power.
At-will employment gradually became the default rule under the common law of the employment contract in most U.S. states during the late 19th century, and was endorsed by the U.S. Supreme Court during the Lochner era, when members of the U.S. judiciary consciously sought to prevent government regulation of labor markets. Over the 20th century, many states modified the rule by adding an increasing number of exceptions, or by changing the default expectations in the employment contract altogether. In workplaces with a trade union recognized for purposes of collective bargaining, and in many public sector jobs, the normal standard for dismissal is that the employer must have a "just cause." Otherwise, subject to statutory rights (particularly the discrimination prohibitions under the Civil Rights Act), most states adhere to the general principle that employer and employee may contract for the dismissal protection they choose. At-will employment remains controversial, and remains a central topic of debate in the study of law and economics, especially with regard to the macroeconomic efficiency of allowing employers to summarily and arbitrarily terminate employees.
At-will employment gradually became the default rule under the common law of the employment contract in most U.S. states during the late 19th century, and was endorsed by the U.S. Supreme Court during the Lochner era, when members of the U.S. judiciary consciously sought to prevent government regulation of labor markets. Over the 20th century, many states modified the rule by adding an increasing number of exceptions, or by changing the default expectations in the employment contract altogether. In workplaces with a trade union recognized for purposes of collective bargaining, and in many public sector jobs, the normal standard for dismissal is that the employer must have a "just cause." Otherwise, subject to statutory rights (particularly the discrimination prohibitions under the Civil Rights Act), most states adhere to the general principle that employer and employee may contract for the dismissal protection they choose. At-will employment remains controversial, and remains a central topic of debate in the study of law and economics, especially with regard to the macroeconomic efficiency of allowing employers to summarily and arbitrarily terminate employees.
Definition
At-will
employment is generally described as follows: "any hiring is presumed
to be 'at will'; that is, the employer is free to discharge individuals
'for good cause, or bad cause, or no cause at all,' and the employee is
equally free to quit, strike, or otherwise cease work." In an October 2000 decision largely reaffirming employers' rights under the at-will doctrine, the Supreme Court of California explained:
Labor Code section 2922 establishes the presumption that an employer may terminate its employees at will, for any or no reason. A fortiori, the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment. Because the employment relationship is "fundamentally contractual" (Foley, supra, 47 Cal.3d 654, 696), limitations on these employer prerogatives are a matter of the parties' specific agreement, express or implied in fact. The mere existence of an employment relationship affords no expectation, protectible by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms. Thus if the employer's termination decisions, however arbitrary, do not breach such a substantive contract provision, they are not precluded by the covenant.
At-will employment disclaimers are a staple of employee handbooks in
the United States. It is common for employers to define what at-will
employment means, explain that an employee's at-will status cannot be
changed except in a writing signed by the company president (or chief
executive), and require that an employee sign an acknowledgment of his
or her at-will status. However, the National Labor Relations Board
has opposed as unlawful the practice of including in such disclaimers
language declaring that the at-will nature of the employment cannot be
changed without the written consent of senior management.
History
The original common law rule for dismissal of employees according to William Blackstone envisaged that, unless another practice was agreed, employees would be deemed to be hired for a fixed term of one year.
Over the 19th century, most states in the North adhered to the rule
that the period by which an employee was paid (a week, a month or a
year) determined the period of notice that should be given before a
dismissal was effective. For instance, in 1870 in Massachusetts, Tatterson v. Suffolk Mfg Co held that an employee's term of hiring dictated the default period of notice.
By contrast, in Tennessee, a court stated in 1884 that an employer
should be allowed to dismiss any worker, or any number of workers, for
any reason at all. An individual, or a collective agreement, according to the general doctrine of freedom of contract
could always stipulate that an employee should only be dismissed for a
good reason, or a "just cause," or that elected employee representatives
would have a say on whether a dismissal should take effect. However,
the position of the typical 19th-century worker meant that this was
rare.
The at-will practice is typically traced to a treatise published by Horace Gray Wood in 1877, called Master and Servant.
Wood cited four U.S. cases as authority for his rule that when a hiring
was indefinite, the burden of proof was on the servant to prove that an
indefinite employment term was for one year. In Toussaint v. Blue Cross & Blue Shield of Michigan, the Court noted that "Wood's rule was quickly cited as authority for another proposition."
Wood, however, misinterpreted two of the cases which in fact showed
that in Massachusetts and Michigan, at least, the rule was that
employees should have notice before dismissal according to the periods
of their contract.
In New York, the first case to adopt Wood's rule was Martin v New York Life Ins Co
in 1895. Bartlett J asserted that New York law now followed Wood's
treatise, which meant that an employee who received $10,000, paid in a
salary over a year, could be dismissed immediately. The case did not
make reference to the previous authority. Four years earlier, in 1891, Adams v Fitzpatrick
had held that New York law followed the general practice of requiring
notice similar to pay periods. However, subsequent New York cases
continued to follow the at-will rule into the early 20th century.
Some courts saw the rule as requiring the employee to prove an
express contract for a definite term in order to maintain an action
based on termination of the employment. Thus was born the U.S. at-will employment rule, which allowed discharge for no reason. This rule was adopted by all U.S. states. In 1959, the first judicial exception to the at-will rule was created by one of the California Courts of Appeal. Later, in a 1980 landmark case involving ARCO, the Supreme Court of California endorsed the rule first articulated by the Court of Appeal. The resulting civil actions by employees are now known in California as Tameny actions for wrongful termination in violation of public policy.
Since 1959, several common law and statutory exceptions to at-will employment have been created.
Common law protects an employee from retaliation if the employee
disobeys an employer on the grounds that the employer ordered him or her
to do something illegal or immoral. However, in the majority of cases,
the burden of proof remains upon the discharged employee. No U.S. state
but Montana has chosen to statutorily modify the employment at-will rule.
In 1987, the Montana legislature passed the Wrongful Discharge from
Employment Act (WDEA). The WDEA is unique in that, although it purports
to preserve the at-will concept in employment law, it also expressly
enumerates the legal bases for a wrongful discharge action.
Under the WDEA, a discharge is wrongful only if: "it was in retaliation
for the employee's refusal to violate public policy or for reporting a
violation of public policy; the discharge was not for good cause and the
employee had completed the employer's probationary period of employment; or the employer violated the express provisions of its own written personnel policy."
The doctrine of at-will employment can be overridden by an
express contract or civil service statutes (in the case of government
employees). As many as 34% of all U.S. employees apparently enjoy the
protection of some kind of "just cause" or objectively reasonable
requirement for termination that takes them out of the pure "at-will"
category, including the 7.5% of unionized private-sector workers, the
0.8% of nonunion private-sector workers protected by union contracts,
the 15% of nonunion private-sector workers with individual express
contracts that override the at-will doctrine, and the 16% of the total
workforce who enjoy civil service protections as public-sector
employees.
By state
Public policy exceptions
U.S. states (Blue) without a public policy exception
Under the public policy exception, an employer may not fire an employee, if the termination would violate the state's public policy doctrine or a state or federal statute.
This includes retaliating against an employee for performing an
action that complies with public policy (such as repeatedly warning that
the employer is shipping defective airplane parts in violation of
safety regulations promulgated pursuant to the Federal Aviation Act of 1958),
as well as refusing to perform an action that would violate public
policy. In this diagram, the pink states have the 'exception', which
protects the employee.
As of October 2000, 42 U.S. states and the District of Columbia recognize public policy as an exception to the at-will rule.
The 8 states which do not have the exception are:
Implied contract exceptions
U.S. states (pink) with an implied-contract exception
Thirty-six U.S. states (and the District of Columbia) also recognize an implied contract as an exception to at-will employment.
Under the implied contract exception, 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."
Proving the terms of an implied contract is often difficult, and the
burden of proof is on the fired employee. Implied employment contracts
are most often found when an employer's personnel policies or handbooks
indicate that an employee will not be fired except for good cause or
specify a process for firing. If the employer fires the employee in
violation of an implied employment contract, the employer may be found
liable for breach of contract.
Thirty-six U.S. states have an implied-contract exception. The 14 states having no such exception are:
The implied-contract theory to circumvent at-will employment must be
treated with caution. In 2006, the Texas Court of Civil Appeals in Matagorda County Hospital District v. Burwell
held that a provision in an employee handbook stating that dismissal
may be for cause, and requiring employee records to specify the reason
for termination, did not modify an employee's at-will employment. The
New York Court of Appeals, that state's highest court, also rejected the
implied-contract theory to circumvent employment at will. In Anthony Lobosco, Appellant v. New York Telephone Company/NYNEX, Respondent,
the court restated the prevailing rule that an employee could not
maintain an action for wrongful discharge where state law recognized
neither the tort of wrongful discharge, nor exceptions for firings that
violate public policy, and an employee's explicit employee handbook
disclaimer preserved the at-will employment relationship. And in the
same 2000 decision mentioned above, the Supreme Court of California held
that the length of an employee's long and successful service, standing
alone, is not evidence in and of itself of an implied-in-fact contract
not to terminate except for cause.
"Implied-in-law" contracts
U.S. states (pink) with a covenant-of-good-faith-and-fair-dealing exception
Eleven US states have recognized a breach of an implied covenant of
good faith and fair dealing as an exception to at-will employment. The states are:
Court interpretations of this have varied from requiring "just cause"
to denial of terminations made for malicious reasons, such as
terminating a long-tenured employee solely to avoid the obligation of
paying the employee's accrued retirement benefits. Other court rulings
have denied the exception, holding that it is too burdensome upon the
court for it to have to determine an employer's true motivation for
terminating an employee.
Statutory exceptions
Although all U.S. states have a number of statutory protections for employees, most wrongful termination
suits brought under statutory causes of action use the federal
anti-discrimination statutes which prohibit firing or refusing to hire
an employee because of race, color, religion, sex, national origin, age,
or handicap status. Other reasons an employer may not use to fire an
at-will employee are:
- for refusing to commit illegal acts – An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
- family or medical leave – federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act of 1993.
- in retaliation against the employee for a protected action taken by the employee – "protected actions" include suing for wrongful termination, testifying as a witness in a wrongful termination case, or even opposing what they believe, whether they can prove it or not, to be wrongful discrimination. In the federal case of Ross v. Vanguard, Raymond Ross successfully sued his employer for firing him due to his allegations of racial discrimination.
Examples of federal statutes include:
- Equal Pay Act of 1963 (relating to discrimination on the basis of sex in payment of wages);
- Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);
- Age Discrimination in Employment Act of 1967 (relating to certain discrimination on the basis of age with respect to persons of at least 40 years of age);
- Rehabilitation Act of 1973 (related to certain discrimination on the basis of handicap status);
- Americans with Disabilities Act of 1990 (relating to certain discrimination on the basis of handicap status).
- The National Labor Relations Act provides protection to employees who wish to join or form a union and those who engage in union activity. The act also protects employees who engage in a "concerted activity." Most employers set forth their workplace rules and policies in an employee handbook. A common provision in those handbooks is a statement that employment with the employer is "at-will." In 2012, the National Labor Relations Board, the federal administrative agency responsible for enforcing the National Labor Relations Act (NLRA), instituted two cases attacking at-will employment disclaimers in employee handbooks. The NLRB challenged broadly worded disclaimers, alleging that the statements improperly suggested that employees could not act concertedly to attempt to change the at-will nature of their employment, and thereby interfered with employees' protected rights under the NLRA.
Controversy
The doctrine of at-will employment has been heavily criticized for its severe harshness upon employees.
It has also been criticized as predicated upon flawed assumptions
about the inherent distribution of power and information in the
employee-employer relationship. On the other hand, conservative scholars in the field of law and economics such as Professors Richard A. Epstein and Richard Posner credit employment-at-will as a major factor underlying the strength of the U.S. economy.
At-will employment has also been identified as a reason for the success of Silicon Valley as an entrepreneur-friendly environment.
In a 2009 article surveying the academic literature from both
U.S. and international sources, University of Virginia law professor
J.H. Verkerke explained that "although everyone agrees that raising
firing costs must necessarily deter both discharges and new hiring,
predictions for all other variables depend heavily on the structure of
the model and assumptions about crucial parameters." The effect of raising firing costs is generally accepted in mainstream economics (particularly neoclassical economics); for example, professors Tyler Cowen and Alex Tabarrok explain in their macroeconomics
textbook that employers become more reluctant to hire employees if they
are uncertain about their ability to immediately fire them. However, according to contract theory,
raising firing costs can sometimes be desirable when there are
frictions in the working of markets. For instance, Schmitz (2004) argues
that employment protection laws can be welfare-enhancing when
principal-agent relationships are plagued by asymmetric information.
The first major empirical study on the impact of exceptions to
at-will employment was published in 1992 by James N. Dertouzos and Lynn
A. Karoly of the RAND Corporation,
which found that recognizing tort exceptions to at-will could cause up
to a 2.9% decline in aggregate employment and recognizing contract
exceptions could cause an additional decline of 1.8%. According to
Verkerke, the RAND paper received "considerable attention and
publicity." Indeed, it was favorably cited in a 2010 book published by the libertarian Cato Institute.
However, a 2000 paper by Thomas Miles found no effect upon aggregate employment but found that adopting the implied contract exception causes use of temporary employment to rise as much as 15%. Later work by David Autor
in the mid-2000s identified multiple flaws in Miles' methodology, found
that the implied contract exception decreased aggregate employment 0.8
to 1.6%, and confirmed the outsourcing phenomenon identified by Miles,
but also found that the tort exceptions to at-will had no statistically
significant influence. Autor and colleagues later found in 2007 that the good faith exception does reduce job flows, and seems to cause labor productivity to rise but total factor productivity to drop.
In other words, employers forced to find a "good faith" reason to fire
an employee tend to automate operations to avoid hiring new employees,
but also suffer an impact on total productivity because of the increased
difficulty in discharging unproductive employees.
Other researchers have found that at-will exceptions have a
negative effect on the reemployment of terminated workers who have yet
to find replacement jobs, while their opponents, citing studies that say
"job security has a large negative effect on employment rates," argue
that hedonic regressions on at-will exceptions show large negative effects on individual welfare with regard to home values, rents, and wages
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