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At-Will Employment.At-will employment is unique to the United States among western industrialized nations. It is a product of American common law. According to the at-will rule, also known as the American rule, your boss can fire you at any time for any reason or no reason at all. You can also quit at any time with or without justification. The at-will rule applies in forty-nine states. Montana is the only state that has abolished at-will employment. Montana has a version of what has come to be known as the Model Employment Termination Act or META. Under the META, the boss needs a performance based justification or an economic reason to fire you.The at-will rule covers about 75% of employees in the United States. Some scholars believe that the rule developed from a treatise written by Horace Wood in 1877 on master servant relations. However the rule was already in widespread use by the time of Woods treatise. There is reference to the at-will rule in case law from Louisiana from as early as 1808. Since Louisiana was not a territory until 1804, it must be assumed that the rule was imported from the law or custom of one of the more eastern states and that it originated very early on in the history of the republic. It is most likely that the rule developed from the need for cheap labor created by the dual pressures of the westward migration and the industrial revolution. As a result of the confluence of these forces labor was generally in short supply in the early nineteenth century. Under the older, English rule, which was applied in the colonies, it was presumed that the servant or employee was hired for a one year term. If the master or boss wanted to fire the employee before the term was up, he had to pay the balance of the term’s wages. Wages were likely to be high because of the predominant seller’s market.
Slavery (including indentured servitude) and the at-will rule probably developed to lower the cost of labor. At-will employment meant that the master could dismiss the servant without paying the balance of wages for a one year term.There are four basic exceptions to the at-will rule. Two of these define categories of employees who are outside the rule. Employees who have an express or implied contract for a specific period of employment or an express or implied contract that says that they can only be fired “for cause” are not covered by the at-will rule. “For cause” means that the employer needs a performance based justification that he can prove to an arbitrator in order to fire the worker. This may be called the contract exception to the at-will rule. The majority of workers covered by this exception belong to unions and work under a collective bargaining agreement. There is also a government exception to the at-will rule under which most government employees can only be fired for cause. Government and union workers make up about 25% of the working population. The other two exceptions describe circumstances in which the at will rule does not apply. One of these may be called the statutory exception. Federal and state statutes prohibit firing a worker for being a member of a protected class or engaging in a protected activity. For example there are federal and state statutes that prohibit an employer from firing a worker for being black. The protected classifications involved here would be race and color. There is also a “public policy” exception under which it may be illegal to fire a worker for performing a public duty or pursuing a right that belongs to him as an employee. For example it is illegal in many states to fire a worker for reporting illegal activity by his employer. This is known a whistle blowing and it may be considered a public duty. It may also be illegal to fire a worker for making a workers’ compensation claim. Making a workers’ compensation claim is a right that belongs to the employee as an employee. Unfortunately the statutory and public policy exceptions to the at will rule are not very effective in many cases. This is because these exceptions exist alongside the at-will rule itself. Under the at-will rule, any reason other than the prohibited one will suffice to make the termination legal. It is therefore easy to circumvent the exceptions under the present system. To make the exceptions truly enforceable it would be necessary to end at-will employment and require the employer to prove just cause.In addition, the economic forces that gave rise to the rule have not held sway since well before the Great Depression. A buyers’ market for labor been dominant for several generations. The simultaneous presence of a buyers’ market and the at-will rule has meant downward pressure on wages, working conditions, and employee rights. In 2006 France tried to introduce the application of at-will employment to
younger workers only to be met with staunch opposition from students and unions. Written by Glenn Solomon author of You Could Be Fired For Reading This Book (Berrett-Koehler, 2004)
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