It seems that as a society we have a lot of notions about work and what an employer can and cannot do under the law. Very few of these commonly held beliefs are true. In my day to day life as an attorney who focuses her work on employment law, I spend quite a bit of time discussing potential legal claims with people who have been mistreated at work. Very rare is the call where a person calling was, in my opinion, not mistreated by the employer. In one such rare case, the gentlemen calling had terrorized a female coworker and was genuinely confused about why he was terminated. Not quite as rare, is the caller who has been mistreated and has a remedy under the law. The most common caller has in their, and my, opinion been mistreated but has no legal remedy under the current law. Most callers are victims to an employment system that has become increasingly callous and indifferent to the plight of the worker.
The system I am describing is called At-Will employment. Washington State is an At-Will employment state. Legally, “At Will” means one can be fired at any time, without cause unless they are specifically excluded from that system. Examples of exclusions include, government employees, tenured professors, unionized workers and employees working under a contract and sometimes an implied contract. At-first blush, this uniquely American quirk of labor law seems only fair. Both the employee and the employer are free to part ways at any time.
However, just because both sides are "free" to part ways at any time doesn't mean that doing so has the same effect on each of them. The risk and burden of destabilizing financial loss is much more likely to fall on the employee. At-Will relationships between employees and corporations allow corporations to expand and grow unheeded by
financial responsibility to their employees. Corporations can take bigger risks and if they fail, they can cut the burden of labor costs almost without restriction. This helps create more value for
shareholders, but at a cost to worker stability and security.
Callers often contact me and tell me that they understand that they are At-Will, but still think that things like seniority, performance metrics - positive reviews, workplace success, a recent raise are all proof that they should not have been terminated. Of course, these are logical feelings that arise from our notions of fair play. They arise from a time when workers generally could not be fired without "cause" and could not be let go with out notice and some sort of "due process." Worse yet are the callers who have been subjected to bullying, the inhumane "professional improvement plan" or simply never supported in their role. Entire industries are notorious for overworking, underpaying and mistreating their employees, but only in the most extreme cases does that behavior actually run afoul of the law. Washington State does have
anti-bullying and anti-harassment laws mostly related to our Public schools. However, for most other employees a bad manager can easily ruin your life without doing anything illegal. At-Will contracts and laws codify the power imbalance between the worker and the employee with little regard to the dignity of workers or to their human rights.
“It is employment at will and its
fundamental assumption which is the major barrier to establishing a system of
collective bargaining,” wrote the
labor lawyer Clyde W. Summers. “In American labor law, the monarchy still
survives,”
He summarized some alternative polices from around the globe,
In other countries, employees are viewed as members
of the business enterprise. In Germany, for example, the employee-elected
works council has, in addition to representation on the supervisory board,
co-determination rights over decisions such as work schedules, leaves, safety and health measures and guidelines for hiring, transfer and dismissal.
If the employer and the works council cannot agree on these matters, the
issues are submitted to binding arbitration. In Sweden, the union must be
consulted on "any matter relating to the relationship" between the employer
and the employees. This includes such matters as a decision to introduce
new machinery, sell the company or hire a new managing director. In
Japan, the union is consulted on nearly all matters of employee interest and
employees are commonly referred to as "members of the family.
Jefferson B. Fordham Professor of Law Emeritus, University of Pennsylvania Law School; J.S.D. 1952, Columbia; J.D. 1942, Illinois; B.S. 1939, Illinois; expertise in labor law and comparative law. I. Payne v. Western & Ad. R.R., 81 Tenn. 507 (1884). 66 U. PA. JOURNAL OF LABOR AND EMPLOYMENT LAW [Vol. 3:1 ]
It is my hope that as we emerge from this pandemic induced hibernation that we will consider not just economy protecting adjustments that happen to benefits all citizens - like detaching medical insurance coverage from full-time employment, but also that we will seek and secure policies that correct for the imbalances of power and thereby restore a rightful sense of dignity to all workers.
To read more about the history of the At-Will employment doctrine
click here.
