What Is “At-Will Employment,” and Why Does It Matter?
Under the existing “at-will” employment regime, most workers in the United States could be fired tomorrow for any reason, without explanation. (E. F. Joseph / Anthony Potter Collection / Getty Images)
Why scrapping “at-will” employment would bring a major measure of democracy to the workplace
An intereview with WILLIAM A. HERBERT
Socialist New York City councilor Tiffany Cabán recently introduced legislation requiring “just cause” for firing workers. Jacobin spoke to a labor law scholar about why scrapping “at-will” employment would bring a major measure of democracy to the workplace.
In the United States, we often take for granted the immense power our employers have over us. Consider, for instance, the fact that your boss could fire you tomorrow for absolutely no reason. Didn’t get a hearing to defend yourself? What about an opportunity to come up with a plan to improve your job performance? Doesn’t matter — for most workers in the United States, none of that is required. Your boss isn’t even legally required to explain why you’ve been let go.
This near-total lack of protection from unfair firings has a name: the at-will employment doctrine. This doctrine doesn’t come from some old dusty law on the books that voters could mobilize around. Instead, the rule that governs the most important economic relationship of our lives comes from a nineteenth-century lawyer who lied.
The short version of the story: in his 1877 treatise called “Master and Servant,” lawyer Horace Wood gave four examples that prove that bosses legitimately can fire workers for no reason. Those examples, as it turns out, were made up. But no matter. Judges across the country used his reasoning, and to this day, the at-will doctrine remains precedent.
Earlier this month, New York City Council member and Democratic Socialists of America (DSA) member Tiffany Cabán introduced legislation that curbs this power bosses have over their workers. The Secure Jobs Act requires employers to actually have a reason for firing a worker — or “just cause” for their termination.
Cabán’s bill expands just-cause rights that New York City’s fast-food workers recently won to workers across all of the city’s sectors. Instead of firing employees on the spot, employers would be required to give advance notice of a worker’s termination and a written explanation of their firing. Workers who are wrongfully terminated — say, for asserting their health and safety rights in the workplace — would have an opportunity to be reinstated. The bill also limits employers’ ability to use technology to surveil workers on and off the clock, along with other worker protections.
Jacobin contributor Melanie Kruvelis spoke with William Herbert, distinguished lecturer at Hunter College and an expert on New York labor law, to discuss the significance of Cabán’s legislation and what its passage would mean for New York City’s workers.
MELANIE KRUVELIS Whether we’re talking about the National Labor Relations Act (NLRA) or local labor legislation, labor law in the United States is fundamentally about regulating the balance of power between bosses and workers. So, let’s start with the basics: What is at-will employment? And between bosses and workers, who has the power under at-will?
WILLIAM A. HERBERT. The at-will employment doctrine was developed in the nineteenth century, as part of the common-law legal system in the United States. Under the at-will doctrine, an employer can fire a worker for any reason or no reason, period. The doctrine grants employers a tremendous amount of power over workers and the ability to discharge or otherwise discipline them for any reason or no reason at all.
The at-will doctrine remains the default rule when it comes to employment, particularly in the private sector. One of the few checks on this power are laws prohibiting discrimination, which generally require proof that the employer was unlawfully motivated based on race, gender, or other specific protected classes.
There is obvious unfairness when a worker is fired for no reason, without any notice, any investigation, or any hearing. Under the at-will doctrine, employers have the right to proceed in that manner. The only legal recourse for the worker is to file a claim that the employer was
motivated by an unlawful discriminatory or retaliatory reason. However, proving unlawful motivation is difficult, and being successful often requires hiring an experienced and knowledgeable employment lawyer. The time and cost required for that can be out of reach for many workers.
The power dynamic created by the at-will doctrine places real limits on the willingness of workers to assert workplace rights they have out of fear of being terminated. Think about during the pandemic: the fear of raising issues about health and safety, out of fear the employer can fire someone for raising those or other workplace issues. This fear exists despite the fact that the Occupational Safety and Health Act and other laws were enacted to protect worker health and safety.
MELANIE KRUVELIS. Just-cause legislation aims to change this balance of power. Can you explain what just-cause protections are? Do these protections exist in other cities, states, or countries? How would passing this legislation change the balance of power for workers in New York City?
WILLIAM A. HERBERT. The just-cause doctrine is the antithesis of at-will employment. Simply put, it mandates the core value of due process in the workplace. Under just cause, before an employer can take adverse action against an employee, employees must be given notice, an opportunity to be heard, and a fair investigation into the nature of the alleged misconduct. It also mandates progressive discipline, meaning that a penalty should match the severity of the alleged misconduct, and take into account an employee’s work record.
In New York, as well as in the rest of the country, most workers in the private sector do not have just-cause protections against termination. Just cause creates a platform of job security by
providing workers with protections against unfair types of adverse actions from employers. That sense of job security would also allow them to feel more comfortable and have less fear about asserting rights they already have from other federal and state laws. Extending the just-cause standard to more workplaces will increase the likelihood of workers asserting existing workplace protections and assisting government agencies in enforcing those protections.
The concept of just-cause discipline was first instituted in the late-nineteenth century. In 1897, President William McKinley issued a civil service regulation requiring just cause prior to a federal worker being disciplined. Since then, just cause has been codified in statutes and union contracts for public sector workers across the country. Only one state, Montana, applies just-cause for all workers statewide. Unionized workers in the private sector also have won just-cause provisions in collective bargaining agreements.
MELANIE KRUVELIS New York City recently enacted just-cause protections for the city’s fast-food workers. What did that legislation do? What’s been the impact of these expanded workplace protections for fast-food workers?
WILLIAM A. HERBERT. In December 2020, the New York City Council passed a law codifying a just-cause standard for the city’s fast-food workers. Under the law, a fast-food worker must be given a written explanation by the employer within five days identifying the specific reasons for the termination. In addition, the employer has to demonstrate that the employee knew or should have known of the work rule violated, that the employee received adequate training, and that progressive discipline was applied reasonably and equitably.