Employment-at-will (EAW) is a principle that allows employees and employers to terminate the employment relationship with any reason or no reason in cases where no matters of union, legal statute, public policy or contract reign.1
Since its inception, EAW as a principle has allowed employers to terminations without remedy, even in cases against public policy.2 Modern developments to this principle have caused employers to work within common law to combat potential litigation by removing the representation of continued employment, and factoring the ease of future dismissal in hiring decisions.3 Companies have also “qualified their EAW prerogatives with restrictions… and developed grievance procedures… for employee complaint and redress.“4
People are coming to the conclusion that EAW as it has been practiced for years is no longer applicable to modern society. Although no collective agreement has been made in whole to adopt any changes, it is no doubt a pressing issue that will grow in relevance.
In the two articles that form the basis of this discussion, Richard Epstein defends at-will contracts on grounds of fairness and utility, while Patricia Werhane and Tara Radin defend due process on grounds of human rights and the blurring distinction between private and public spheres of modern society. In turn, I will be defending the claim that due process should have a role in all employment relationships by challenging the application of intrinsic fairness and effects upon utility. I conclude that government intervention should not be barred from employment relationships, and in fact is necessary to protect parties from an asymmetrical balance of power and reputational loss.
1. Conditional Relationships
Fairness, not unlike all other virtues, has an influence on our calculation of utility. As a guiding principle of individual liberty, “Fairness means treating people equitably, without bias or partiality.”5 By extension, Epstein asserts that the law should view the rights of our employment relationships with similar discretion for our private relationships – to be able to set goals for ourselves and choose an action for attaining them.6 He is correct to argue that employment contracts are as important to day-to-day life as are our rights in marriage, religion, and speech, and should therefore be respected. In this part of the essay, however, we will consider the limitations imposed by fairness on the freedom to contract by challenging his application of fairness. I will discuss why different treatment of these rights is necessary by appealing to human expectations of fairness, and conclude that it does not follow that employment relationships should be free from government intervention. For our purposes, we will be referring our relationships in marriage, religion, and speech as “private” relationships to specifically target Epstein’s claims.
A key difference between private relationships and employment contracts is highlighted by the conditional nature of employment. As Werhane/Radin point out, individual performance is merit-based, both in terms of productivity and commitment and loyalty to the employer.7 The latter is of ethical relevance to us. In most environments, there is an expectation that employees and employers, as moral agents, will treat one another with respect. As Werhane/Radin suggests, “there is an implied reciprocal obligation on behalf of both parties.”8
In those private relationships discussed by Epstein, we have an expectation that the relationship will exist indefinitely. Excluding obvious violations of public policy and customs such as hate speech, murder, and abuse, private relationships have no obvious limits to measure the fulfillment of our responsibilities.
In employment contracts, there is an understanding that the relationship should depend on the employee/employer’s performance. For this reason, the nature of employment relationships means that there is no expectation...
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