Should Employment Be At-Will?

“Employment at-will” is the ancient notion that employers have the right to terminate an employees employment for any reason at all, indeed, for no reason. Some form of it prevails in the United States and the United Kingdom. In an op-ed in the New York Times Moshe Marvit and Shaun Richman argue for changing to a system in which a “just cause” is needed to terminate an employee without ever actually making their case:

Republicans constantly argue that to compete, American corporations need to be treated like their European counterparts when it comes to corporate taxes — Europe has a very low average tax rate. Workers deserve a similar push to receive the job protections that their European counterparts enjoy.

A just-cause rule would give workers greater freedom to say no to requests that have nothing to do with their jobs, like “Can you pick up my dry cleaning?” or “Come up to my hotel room.” It would provide workers more power to resist unfair schedule changes, like an attempt to cancel a preapproved vacation. It would allow workers to resist mandatory overtime presented as voluntary. It would firmly place the burden on an employer to show that the reason it fired an employee had nothing to do with, say, the sick day she took to care for her child or the memo she wrote to complain about a powerful co-worker making sexual advances (three-quarters of women who have filed sexual harassment claims at work experience retaliation, according to one report).

I’m not as familiar with German law as I used to be but it used to be the case that in Germany, if their employees were Germans, employers couldn’t terminate their employees at all without paying extreme termination settlements. That had the perverse effects of encouraging German companies to hire foreigners or not hire at all.

The agenda of the op-eds authors are clear: the “just cause” laws they envision would be good for unions. Would they be good for workers? While I’m open to the idea of change, particularly in the present context in which American employees are losing their jobs because their employers have found workers from overseas who will work for less money, I wish they had articulated their case a bit more clearly. What would constitute a “just cause”? Would it be limited to protecting the presumed right to organize? Would it provide employers with the flexibility they require in a business environment in which rapid change is the norm?