Employment at Will: A Defense

The doctrine of Employment at Will (henceforth, EAW), is a much contested principle in American law, though the contestation itself is more a 20th century phenomenon. EAW is essentially a common-law doctrine, which reserves the right for any employer to hire employees or to terminate their contracts as they please, as long as there are no regulations or laws which govern such actions (Werhane and Radin, p. 113). Similarly, employees enjoy the right to leave their positions if they so choose, without any formal notice.

The increasing challenge to the EAW doctrine has come from two closely-related sources: firstly, legal interpretations of the principle in courts across the states of America, which have changed over time, and two statutory revolutions in the form of the National Labour Relations Act of 1935 and the Civil Rights Act of 1964 (Epstein, pp. 121-122); and secondly, a widely influential academic critique of the doctrine by Dr. Lawrence Blades in the Columbia Law Review in 1967 (Foulkes, 2005).

However, EAW still remains crucial to catering to the demands of free societies and the expanding horizons of the global economy; indeed, the arguments for EAW, typified by the freedom of contract, are more compelling – on their merits – than the opposing considerations, and remain critical from guarding against greater governmental regulation in private enterprise. At the very onset, it is prudent to review the concepts of EAW and its purported remedy, due process of law.

EAW extends the exercise of choice to both employers and employees in what they deem fit to be their best interests in continuing with a given contract; an employer may be unsatisfied with one’s performance and fire him/her (or may want to replace an individual by another whose demonstrated capabilities of carrying out the same tasks are greater); conversely, an employee may terminate a contract without notice if the same is no longer attractive, or if there be other (as in, better) opportunities elsewhere.

This is sometimes taken to understand EAW as giving employers a free hand in arbitrarily terminating contracts since, fundamentally, the principle does not require the exposition of any formal reasoning for firing employees. As a measure against such calamities, many propose the institution of due process in private companies; this would ensure a “means by which a person can appeal a decision in order to get an explanation of that action and an opportunity to argue against it” (Werhane and Radin, p. 114).

EAW, as discussed above, expressly protects both the employers and the employees in their freedom of entering into a contract which can be terminated from either end at any time. This essential freedom must be understood in the correct context to comprehend the nature and gravity of what EAW entails. For an employer, whether an individual or (more commonly) a company, the recruitment of any individual depends upon what particular skills they desire, and what functions they wish the prospective employee to perform.

Generally, an employment opportunity arises when an existing position is vacated, or a company expands its range of functions and services, or out of the economies of scale which the operations of a company may result in. In all such cases, employers hire individuals to execute particular tasks and demand a certain level of proficiency from their employees. It is essential, for any company to remain competitive, that their employees are efficient.

Thus, if an employee consistently fails to live up to the expectations of his/her position, the EAW doctrine ensures that the company has a form of redress at its disposal: the termination of the contract. To reiterate, it make little sense for any employer to continue to use the services of any person whose work is unproductive, since it defeats the very purpose of the given employment.