Why At-Will Employment Is Dying
Flynn, Gillian, Personnel Journal
We hear complaints about how complicated the termination procedure is, yet most of us live in states that recognize at-will employment. It may seem this discrepancy has sneaked up on us, but at-will employment has been marching toward death's door for decades. The culprits may surprise you.
Employers these days can't terminate an employee without feeling a little nervous-and for good reason. Wrongful termination suits abound. Anymore, we need a stack of documentation and a series of disciplinary actions before we can even consider firing an employee. We need to check and recheck our tracks to ensure everything has been covered. The whole process can take up to a year, forcing us to focus our time and energy on our poor employees instead of our promising ones.
Yet most states have some sort of atwill history, allowing the termination of employees at any time, for any reason. Why then all the fuss over justifying a termination? To be blunt, it's because at-will employment is on its last leg. Ironically, it's the very laws designed to give employees an even break that have left employers at a disadvantage. Christopher Bouvier, senior labor counsel for San Francisco-based ABM Industries, details at-will employment's erosion and offers advice on terminating employees safely.
To start out, can you give a definition of at-will employment? Employment at will is supposed to mean that either the employer or the employee can terminate the employment relationship at any time, for any reason. That was the traditional American definition.
What's at-will employment's history? The American concept of at-will employment dates back to the mid-19th century, rising primarily out of English common law. In the old days, the view was that an employer had the absolute right to choose its employees. And employer attitudes around the turn of the century were that you can terminate an employee for any reason you want. That was the way it was. It was accepted without question at that time and well into the 20th century. So that's [the notion] it comes from: The right of capital to discharge labor was absolute.
In the United States, how was it handled-was it covered by legislation? It depends on the state. California, for instance, has a labor code. It has been codified at least since the 1870s that an employer has the right to terminate an employee at any time, for any reason, and likewise, an employee may leave at any time. Other states have similar statutes. It may not be written in law and not passed by the legislature, but it has been decided by case law-the decisions of the courts have recognized that right. I'd say most states recognize atwill employment.
How did the spirit of at-will employment begin to erode? In my opinion, the first major assault on employment at will was the development of labor laws in the early 20th century-the 1930s-which culminated in the current National Labor Relations Act. That act was attempting to strike a balance between the rights of labor and capital. One of the things Congress did was to protect an employee's right to organize or be part of a union. It became unlawful at that point for an employer to terminate an employee because he or she had prounion sentiments or union support. I believe that's where you saw the first limitations on an employer's right to discharge at will.
Did this sentiment snowball? Federal labor laws basically cultivated labor unionism to an extent and allowed it to grow. Labor unions then were able to negotiate contracts that included protections for the right of discharge too. In other words, employers and unions would negotiate collective-bargaining agreements, and it became fundamental practice over the years that those agreements actually would have a clause in them that prevented discharge without good cause. The opposite of employment at will is no right to discharge unless good cause is proven by the employer. These protections began to appear in collective-bargaining agreements. …