When we are dealing with the employment relationship between employers and employees, ethical issues are most likely to emerge. Especially, if a manager fires a worker without a proper reason, critics will follow this employer’s behavior. In Patricia Werhane’s paper, “Employment at Will and Due Process”, discusses two doctrines which are Employment at Will (EAW) and Due Process. It also addresses some justifications and objections for EAW, and shows Werhane’s supportive view to Due Process. In contrast, EAW is defended by Richard Epstein in his article “In Defense of the Contract at Will”. In my paper, I will attempt to develop my argument in favor of Employment at Will that could improve flexibility and efficiency of employment.
In Werhane’s paper, “Employment at Will and Due Process”, she indicates “the principle of EAW is a common-law doctrine that states that , in the absence of law or contract, employers have the right to hire, promote, demote, and fire whomever and whenever they please.” However, “Due process is 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.” From his view point, Due process should be extended to all employees since it is more ethical and fair to them. Nevertheless, the court rarely votes for a fired “at-will” employee unless an employer violates the public policy.
Werhane presents common reasons to justify EAW provided by its proponents, and then shows her objections to each justification. The first argument is about the proprietary rights of employers and firms. Employers thus might hire or fire whomever and whenever they wish based on these rights. It indicates employers do not violate the rights of persons, but dismiss labor from the activity of working. Therefore, labor and person need to be distinguished because only labor is controlled by employers rather than persons. Nevertheless, Werhane said the proprietary rights of employees should also be considered. In addition, persons can not be separated from labor which sometimes refers to the activity of working or productivity. So persons should be respected as ends and be offered reasons if firing them.
The second argument is EAW protects the rights of employees and employers equally and gives both parties the freedom of contract. It guarantees employers can hire and fire “at-will” workers while employees can join and quit the jobs anytime. On the other hand, Werhane does not agree with this argument. She believes that employees do not have equivalent prerogatives as employers when they are dealing with employment relation because managers have more power than employees. Thus the spirit of EAW will be damaged.
The third argument for EAW defends employees contract into the conditions voluntarily, and aware they are “at-will” workers. However, Werhane discusses that this voluntariness of contracts implies reciprocal obligations and mutual restrictions which must be reached to both parties. Otherwise, no one party can show its respect, loyalty and trust to the other.
The next justification for EAW shows an objection to due process which would harm the efficiency and productivity of corporations. It is also costly and time-consuming to require due process to satisfy employee rights. In addition, Ian Maitland defends this justification, and demonstrates workers prefer some benefits like money to basic rights. Werhane objects this argument by stating that due process is not necessary more costly or less efficient, and it gives employers a good reason to fire a poor employee. Also, employees sometimes prefer job security rather than money.
Finally, this article also indicates businesses are privately owned organizations in a free market and restricted by public institutions. So the public/private distinction was used to protect private property form public interference. However, the overlap between public and private institution...