To Build Worker Power, End At-Will Employment
March 11, 2021
By Joseph Miller
Among its peers, the US is an outlier when it comes to labor law. Bucking international convention and the labor code standards of most rich democracies, the US continues to deny workers the protection of statutory just cause, which establishes clear standards for employee termination and requires employers to spell out justification for such action. The bulk of the nation’s private employees, therefore, continue to be employed at-will—i.e., their employers can terminate them for any reason (or no reason at all) unless explicitly prohibited by local, state, or federal laws.
Per 2019 survey, data, nearly half of US workers have experienced the worst of this system firsthand, with 47 percent reporting they had been fired for no reason or an unfair reason—experiences that vary by race and education.
Despite—or because of—at-will employment’s pervasiveness, its cruelty and unfairness often go unrecognized or misunderstood in public discourse; indeed, workers themselves often overestimate their legal protection, reasonably assuming the law shields them from egregious or unreasoned firings.
At-will employment leaves millions of these workers subject to arbitrary and unfair treatment in the workplace, often requiring them to choose between voicing concerns about workplace conditions and keeping their jobs.
A breadth of survey data illustrates how powerless workers feel within the workplace, with over a third indicating they are afraid to speak up for fear of retaliation. Workers with sufficient legal protections, on the other hand, are better able to advocate for improved working conditions, higher wages, and more extensive benefits.
At-will employment actively stifles that power, playing a defining role in millions of worker-employer relationships and profoundly influencing the way people think, act, and communicate in the workplace.
Perhaps at-will employment’s most direct impact: It often acts to inhibit the formation of unions. Though firings related to union organizing are technically illegal, the legal shelter provided by the at-will system and substandard enforcement by the National Labor Relations Board create incentive for companies like Amazon to roll the dice in court rather than risk unionization.
Moreover, the foundations of union activity—airing grievances, worker organization, and agitation—prove difficult in an at-will environment, where job security often depends on avoiding these activities and other actions perceived as rocking the boat. Particularly in the early phases of workplace organizing, threats of termination or retribution in response to unionization drives are common, and unfortunately, often effective.
While many well-intentioned skeptics of statutory just cause may be apprehensive about writing key benefits of unionization into law and decreasing the incentive to join unions, this line of reasoning proves flawed. Providing workers with the security to pursue better conditions without fear of retaliation is the very bedrock of an active and flourishing labor movement.
As Kate Andrias and Alex Hertel-Fernandez write in Roosevelt’s Ending At-Will Employment: A Guide for Just Cause Reform, “at-will employment erodes workers’ dignity and diminishes the possibility of real workplace democracy.” Especially during a pandemic, when workers across the country have been fired and penalized for speaking out against unsafe conditions, expanding employee rights is vital for both workers and the public interest.
Pursuing comprehensive just cause standards is a necessary step to bolster the labor movement—and is supported by 67 percent of workers. To rebalance power between workers and employers in the workplace and in the economy, we must abolish the at-will standard.