Blink And You May Get Fired
I just lost my fourth job in ten years.
The first ax fell at a national department store whose CEO decided to “trim fat” as he continued ringing up $300,000 in quarterly bonuses. I lost the next job at an ad agency, where the principals overcharged clients while freezing employee raises; and the next at a well-known corporation, where the new president decided to deep-six the marketing department in favor of outsourcing. The latest demise shares a core commonality with the others: termination without cause. In other words, I was fired simply because it was my employer’s will to fire me. Sue, you say? Gladly I would, were it not for a federal law that makes any chance of winning in court impossible. It’s the At-Will Employment law; and it gives employers in all fifty states carte blanche to dismiss employees at any time, for any reason (except discrimination and a few other easy-to-prove wrongful motivations) — indeed, for no reason at all. (So much for the American Dream.)
How can such a clearly biased statute be legal? Just a generation ago, my father could work hard and feel certain he’d be able to serve the same company for as long as he wanted. In turn, he could expect the company to serve him fairly for the long term. Job “security” was a phenomenon he, and his professional peers, rarely pondered or pronounced; the loyal, productive American worker thrived, purely, because he deserved to.
Ironically, At-Will Employment existed back then, too. In fact, the law has been slithering through human resources departments for more than a century, the brainchild of a lawyer named Horace C. Wood who, in an 1877 treatise titled Master and Servant, articulated this theory of symmetrical employer/employee rights. Although his reasoning was convoluted, most legal scholars concur that Wood’s central argument was this: Because an employee may resign his employment at any time, as guaranteed by the Thirteenth Amendment to the U.S. Constitution, an employer should have the equivalent right to resign an employee at any time.
Ever since, a majority of U.S. employers has come to adopt the At-Will Employment law as the basis for setting hiring and human resources policies. Categorically, only federal and state workers may not be employed at will; also, employees who negotiate contracts, such as labor-union workers, may be exempt from at-will scrutiny. Yet that leaves tens of millions of employees exposed to arbitrary, in many cases abusive, dismissals: usually with no hope of legal retribution. In fact, according to many recently published law reports, the U.S. leads all industrialized nations in lack of legal protection against wrongful termination of employment.
The extent to which At-Will limits job security depends on how each state enforces it. As abysmal as At-Will is, it includes three provisions (“exceptions”) that dull its sting: public-policy exception, implied-contract exception, and covenant-of-good-faith exception. The public-policy exception deems that an employee is “wrongfully” discharged if the termination of employment violates an explicit public policy of the state, such as if an employer fires an employee who has rightfully filed a workers’ compensation claim. The implied-contract exception asserts that an implied contract — such as an employer’s oral pronouncement or written guidelines (e.g., company handbook) of employment expectations — supersedes a formal contract in protecting employees against discharge without “just cause.” The covenant-of-good-faith exception — the greatest voice of dissent in At-Will — requires employers to uphold a rigid standard of fairness; that is, employers may terminate employment only as a result of just cause, and without ill intent (i.e., malice).
Only six states enforce all three exceptions: California (not surprisingly, considering its liberal social laws); as well (not coincidentally) as the lesser corporate-based states: Alaska, Idaho, Nevada, Utah, and Wyoming. Forty-three states recognize the public-policy exception, thirty-eight states the implied-contract exception, and only eleven states the covenant-of-good-faith exception.
As a professional writer, I project my father’s work ethic. Yet as my diligent, good-faith contributions to Business helped bolster the image of many employers, my own image suffered. My consolation, besides an indomitable sense of self-worth, is that I was not alone. In an increasingly manic corporate culture marked by “downsizing,” consolidations, and the weed-like propagation of big-box chain stores at the end of the twentieth century; and “multitasking,” stockholder favoritism, and the mega-scandals of WorldCom, Enron and many other companies just a few years into the twenty-first; it is the American employee who is suffering most from the consequences of these business anomalies — by way of fattened workloads, longer working days (in many cases without compatible increases in compensation), and, thanks to the At-Will Employment law, tenuous job security.
In a nation in which lobbying is an ugly word, it will probably take a mass lobby to overturn At-Will in favor of a Just-Cause law that abides At-Will’s three equitable exceptions: that is, a law that justifies employment termination only for good reason, such as documented sub-par performance or unlawful or unethical violation of employer policy. For this effort to succeed, I believe it must be managed by a coalition of employees and lawyers outside the courts — as time and again, courts have shown complacency before At-Will.
At the corporation at which I lost my last job — a position I managed to preserve for all of ten months — my typical workday well-surpassed the one mandated by the company handbook, and I received praise from peers and middle managers for my work and collaborative efforts. On the day before my dismissal, still laboring well past nightfall, I had to call out to the cleaning people, varmint-like from my little cubicle, to turn the lights back on.
Now, although I am earnestly devoted to growing an independent writing career, I sometimes imagine spending these days, instead, building that mass coalition to abolish the At-Will Employment law. For this, right now, is my American Dream.