It is time for Illinois legislators to end at-will employment in our state. Our legislators may not have a reputation for taking on fundamental change, but it would only take a handful of brave legislators to take the message to the people and win what is essentially a civil rights matter. It is time for "just cause" employment in Illinois.
"Just cause" employment is an alternative to "at-will" employment that currently exists in Montana, as well as the rest of the industrialized world, in varying degrees of intensity. Essentially, it states that an employer must give (and potentially demonstrate) just cause for terminating an employee. The details of what constitutes a "just cause" can vary in detail, but essentially the rule is that it has to deal with work performance or serious criminal conduct, serious restructuring (in other words, massive layoffs) or employer bankruptcy. Pretty reasonable.
A moment, if you will allow, for a plea for the rights of white males. Well, not white males in particular. But current employment law (though not strictly speaking employment reality) does give white males less protection against wrongful termination than any other demographic group. Obviously this is done to address historical inequalities — between blacks and whites, men and women, hetero and homosexuals, etc. But if there can be a solution to employment discrimination that covers all employees, why not implement it? Why sustain a byzantine patchwork system that protects some people from racial discrimination, others for religious discrimination, others for gender discrimination, others for disability discrimination, others for having sick family members, etc.?
From the Chamber of Commerce's or National Association of Manufacturers' point of view — your bosses' point of view — the reason is obvious: a simple, streamlined system of preventing unlawful termination — the economic death sentence — will cut into their profits and make their lives more difficult. It also would have the unfortunate (from their point of view) side effect of bridging one of the rifts between working class Americans exploited so joyfully for 40 years by movement conservatives.
But from a rational point of view, it makes no sense to stick with the status quo (or go backward). Americans are uniquely burdened in the industrialized world by the doctrine of so-called "at-will employment," the common law rule that states that you can be fired from your job for a good reason, a bad reason, or no reason whatsoever, so long as it is not an illegal reason. The "doctrine" of at-will employment isn't written into the law (in most states) and is not the result of a Supreme Court decision. To the contrary, it is the "default rule," resulting from a series of Nineteenth Century court cases.
At-will employment does not exist anywhere else in the industrialized world, including the members of the G-8, the wealthiest nations on the planet. And it shouldn't exist here. This is a civil rights issue — the civil rights of the largest group of Americans by far — wage workers.
If your livelihood depends on a check signed by someone else, you are probably an at-will employee, and this means your livelihood is wholly dependent on someone else's whim. If you insult their haircut, or support the wrong candidate in an election or have too many wild photos up on your Facebook page, you can be fired, lose your livelihood, lose your health insurance, lose everything, and you have no redress whatsoever. Particularly if you are a white male.
If you are brown like me, or a woman, you can perhaps try to argue that your ethnicity or gender played a role in your firing — but even then you have an enormous burden to prove, that your boss acted knowingly with your gender or race in mind when firing you. It gets to proving motives in a legal setting, a tortious experience that homophonically tend to be torturous. Employers have gone to great lengths (and, ironically, expense) to create "human resources" departments with the purpose of insulating the firm from claims of discrimination in employment. Protecting the at-will employment system is critical to the largest employers in our economy, because of the dependence it creates in employees.
How much more are you willing to put up with at work if your boss can fire you not just for any reason, but for no reason?
Maybe liberals don't like to hear it, but too bad. It is simply not just to have an employment regime that excludes essentially only one demographic, because we do not choose the demographic we're born into. If employment security is a problem, then it is a problem for everyone. White males are just as at risk of the economic death sentence as anybody else. At-will employment is the problem, and just-cause employment is its solution.
At-will employment's defenders are numerous and use several arguments, all fallacious, to buttress their points. Among them:
1) At-will employment serves both employer and employee!
This is ridiculous. There is not equal bargaining power between an employer and employee. This is common sense, but we could be technical about it. Choosing to participate in the wage economy is not much of a choice for the vast majority of people. If you want to live, you have to go get a job. You could also start your own business — but even then you will likely rely on people willing to work for wages. Employees. The result of choosing not to be an employee is not surviving. The cliché "the world needs ditch diggers too" is a nice way to sum this up. In other words, the employer has a lot less at risk in the bargaining relationship with an employee. Duh.
Also, the employee can't just go out and seek a "just cause" employer. There is no choice in the labor market in that regard. Employers have no incentive to compete with each other by offering just cause employment, because they benefit so enormously from the "unspoken" rule of at-will employment.
As for the employee's freedom to leave without notice, given the need for references, "giving notice" is a de facto necessity in the modern economy, so having a notice requirement, even a longer notice requirement, is hardly an oppressive burden, particularly for non-professionals.
2) At-will employment is protection against high unemployment!
Nope. At least, there is no evidence for this. The United Kingdom does not have anything resembling at-will employment, and its unemployment rate is regularly lower than that of the United States. A little closer to home, the state of Montana does not have at-will employment, and regularly has one of the lowest unemployment rates in the country. If at-will employment were abolished in all 50 states, there would be even less reason to expect unemployment to result. Barry D. Roseman, of the progressive American Constitution Society, analyzed unemployment rates in Montana preceding the series of court decisions that led to the "just-cause" employment regime and the period after the court decisions were codified into law, and found that the fear-mongering of the economists was completely unfounded.
So even with the lack of evidence for this argument, there is also that useful tool, common sense. It is unreasonable to assume that large employers would forsake the profits that come with an added employee because they could only fire them for a good reason. Particularly given the American worker's ever-increasing productivity, the only motive for employers to forgo hiring new employees would be spite. If we have an economy where "spite" can be a serious contributing factor to a firm's decision, we have bigger problems than employment policies.
3) We've got "implied contract" exceptions anyway!
This is an arcane legal argument, and to avoid any accusations of obscurantism, I'll use an example to sum this one up: You get a job. You go to work over-dressed on the first day and sit in the human resource guy's office and realize you're over-dressed. You sit through an uncomfortable presentation of the employee handbook, which you then have to sign. The employee handbook mentions that you will be terminated only for causes A, B, C, D, and also "just cause." Whatever, you're thinking about how much you can't wait to loosen your tie/take off your heels. In many states, courts have found that this situation entails an "implied contract." More recent court decisions (and the expense and difficulty of pursuing this avenue in court) mean, well, not really.
To ward off this "implied contract," an employer need only put a single sentence in the employee handbook: "Employment at this firm is at-will employment." The end. Not to mention that the burden, because this is a tortious action, is on the fired employee.
Currently, Colorado is considering a "just cause" amendment to the state constitution, ending the terrible reign of at-will employment. The business associations — pretty much every business association — are fighting the measure tooth-and-nail, which is curious, considering it is an implicit admission that they enjoy firing people for no reason. The ballot initiative has the progressive and labor communities in Colorado fired up, and some think it could help Senator Obama win the state in November. The Workplace Prof Blog (yes, there is a blog specifically for professors of workplace law, bless our robust economy) wonders why labor would bother fighting for an initiative that would theoretically make unionization seem less tantalizing, since currently union workers are one of the very few groups of workers completely insulated from the ravages and vagaries of at-will employment. The answer of course, besides the solidarity it provides, is that employers routinely use at-will employment as cover to fire workers for participation in union organizing drives, in flagrant violation of the National Labor Relations Act (NLRA).
But I don't care about any of that. We should do it because it's right, and it's fair. Illinoisans — Americans — deserve the peace of mind of knowing that they can't lose their job for no reason, that they can't be handed the economic death sentence because they didn't iron their shirt, or because they never show off their breasts, or because they are gay (a group not covered by most anti-discrimination statutes).
As long as the world needs ditch diggers, we have a duty to make sure they have as much peace of mind as the ditch designers and ditch financers — and the other, protected groups of ditch diggers, too.
Brian / September 10, 2008 9:28 AM
So, I want to fire someone who slacks off, I need to file an application with the People's Commissar for Labor?
Real simple: if I can't fire, I won't hire.
This is how business flees a state. Labor leaders try to make the government mandate what they can't get in negotiations. Businesses leave for a better regulatory climate.
Note: I get a postcard from Indiana once a quarter advertising their lower taxes, lower workers comp rates, and lower government interference in business. If nonsense like this passed, I would get one a week! I suspect a lot of businesses would take them up on their offers.