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Employment-at-will and its Protections

Employment-at-will and its Protections


Within the Discussion Board area, write 400–600 words that respond to the following questions with your thoughts, ideas, and comments. This will be the foundation for future discussions by your classmates. Be substantive and clear, and use examples to reinforce your ideas.

Over the years, there has been much debate over the classification of employment-at-will employees. Employment-at-will is a term that refers to the protection that is applied to the employment relationship, such that the employer or the employee has the right to terminate the employment relationship at any time. There are different modifications to employment-at-will that vary at the state level. With your classmates, please discuss the following:

  • Does employment-at-will have better protections for employees or employers? Why or why not?
  • Choose a state and describe its modifications to employment-at-will. Do you agree with these modifications? Why or why not?



1. Introduction

This doctrine of discharge has been the most controversial of all employment-at-will issues. Its principal contribution has been to narrowly limit lawsuits for wrongful termination. Discharging an employee for a particularly bad reason does not make it wrongful discharge. According to one author, the reason might be “so bad, so hypocritical, or so small minded, that only the judge or the jury can be trusted to a fair decision.” This is not in today’s legal system. While the judge or jury might have the authority to decide the issue, there must first be an establishing a valid claim or cause of action. Employment-at-will supporters believe that the rule adequately balances the rights of employers and employees, without legislative limits on discharges.

The rule in employment-at-will states that if an employee has no specific term of employment, the employer can fire the employee for good cause, no cause, and even cause morally wrong, without being liable for wrongful discharge. The employee is granted the same legal right; he can quit on the spot, for good cause, no cause, and cause morally wrong. In general, the employment-at-will doctrine should not affect the employee’s unemployment compensation rights.

The doctrine of employment-at-will is a legal rule that was established in the nineteenth century. It has been adopted by all fifty states. According to this doctrine, either the employer or the employee may end the employment relationship at any time, with or without cause, giving rise to a claim for damages. Typically, courts have said that the employment relationship can be treated as “at-will” unless the employee can show the existence of an employment contract to the contrary.

1.1 Definition of employment-at-will

The term “employment-at-will” derives from American common law and it means that an employee can be dismissed by an employer for any reason or without having to establish a wrongful cause and without notice, as long as the reason is not illegal (e.g. firing a worker because of their race, religion, or gender) and the employer does not have a contract with the employee which specifies how and under what circumstances termination can occur. The doctrine is compatible with the idea of an unfettered labor market, where firms and workers transact at arm’s length. This is undoubtedly the US labor market in many areas, particularly those involving unskilled workers. At-will employment still exists to a large extent in most American states and is important in promoting economic growth in the nation. This will be elaborated on in section 1.2, which discusses the importance of employment-at-will. The other forms of employment are “for cause” and “for term”. In a “for cause” employment, the employee can only be terminated for a specific reason. This usually only occurs when there is a collective bargaining agreement between a firm and a union. This is due to the fact that unions require employment security for their members, and in return for conceding flexibility in the labor market have negotiated contracts which make it difficult for firms to lay off or terminate employees. The most extreme example of “for term” employment is that of a tenured professor at a university, who has essentially a lifetime employment agreement and can only be dismissed for gross misconduct or financial exigency on behalf of the employer.

1.2 Importance of employment-at-will protections

Courts have often spoken of the doctrine of employment-at-will in terms of a “default rule”. That is, in the absence of an express agreement to the contrary, it will be presumed that the employer and employee intended the employment relationship to be a short-term one, terminable at any time by either party. In this respect, employment-at-will can be contrasted with a contract for a fixed term of employment, where, because of the agreement of the parties, it can be a breach of contract to terminate the employment before the expiration of the term. If it is to be analyzed as a default rule, then the starting point is to examine the respective rights of the employer and employee that will be gained, lost, or compromised by moving away from (or contracting out of) that rule. This naturally leads to the question of just what employment-at-will protections are. An alternative approach to understanding the meaning of employment in terms of default rules is to say that the choice of at-will term or fixed term of employment is itself an exercise of freedom of contract. This approach would require showing that there was some impediment or background factor which made it difficult for employers and employees to contract for short-term revocable employment, and that a change to less restrictive rules was the result of a conscious policy decision. An example of doing this type of analysis in another area of labor and employment law is the work in the US on right-to-work legislation. This showed that the implementation of laws protecting union security employment terms was the result of state action, so that a change to a less union-restrictive regime of employment terms required a repealing or invalidation of the laws. We can barely adopt the approach, but the previous study of default rules still serves as a useful foundation for understanding what employment-at-will protections are, even if the intention was not to move more towards such employment terms.

2. Protections for Employees

2.1 Right to terminate employment

2.2 Protection against wrongful termination

2.3 Legal remedies for employees

3. Protections for Employers

3.1 Right to terminate employment

3.2 Protection against employee misconduct

3.3 Flexibility in managing workforce

4. State Modifications to Employment-at-will

4.1 State X’s modifications

4.1.1 Overview of State X’s modifications

4.1.2 Specific changes to employment-at-will

4.2 Evaluation of State X’s modifications

4.2.1 Agreement with State X’s modifications

4.2.2 Disagreement with State X’s modifications

5. Conclusion


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