Imagine being accused of a crime you did not commit, a crime so serious that the penalty was capital punishment. Naturally, with your life at stake, you would want the best attorney possible, someone who would stand with you and fight for justice. Among other things, your attorney would tell you that our criminal justice system required the prosecutor to prove you had committed the crime.
Now, imagine a system where no one had to prove you were guilty and where no proof you could offer could save you. Millions of Americans enter that system just by being an employee. In the United States, employers can legally fire employees without cause, and no amount of evidence can save that employee's job. This is "employment at will," a system created by judges in the 19th century, a system that lets employees be fired for a good reason, a bad reason or no reason.
Even though this system has been in place for over a century, many American employees do not understand how fragile their hold on their jobs is. Court decisions discuss at-will employment as being a contract that both employer and employee have agreed to. However, nothing could be farther from the truth.
Roughly 80 to 90 percent of employees in a study by Washington University School of Law associate professor Pauline Kim believed that they could be fired only if their employer had cause.
Some call being fired "industrial capital punishment," and that is no exaggeration. An employee who is fired loses income and benefits and will most likely have trouble finding a comparable job - or any job.
American employees do not understand how much they need protections such as tenure, grievance procedures and union representation because they don't realize how easily they can lose their jobs.
The at-will system is not necessarily good for employers either. Recruiting, hiring and training an employee is expensive in time and money. That investment is lost when employers mistakenly fire someone who is doing a good job. Employers also lose if they fire someone who, with coaching, could become a good employee. Just-cause employment and a grievance procedure give employers incentives to stop, investigate and think before making a mistake. Just cause also creates incentives for employers to give employees notice of what they are accused of doing and an opportunity to reform themselves.
So why is at-will employment our default system?
First, judicial decisions make it virtually impossible to have any other rule by making at-will the default rule in almost all states, and by making it impossible to contract outside of at-will parameters unless the job is for a fixed term of months or years.
Second, there are many myths out there. One is that an employer cannot be sued under at-will employment. On the contrary, court dockets are full of cases filed by at-will employees. Even if an employee's case is dismissed before trial on appeal, the employer will bear large costs.
These days, many people blame tenure and unions for a wide range of problems, including failing schools and our depressed economy. Would people hold those views if they understood more about how just-cause employment and grievance processes actually function?
Tenure and a grievance process do not mean employees can never be laid off or fired. All these systems require is that an employer have cause when terminating employment. Just cause for firing a worker includes business necessity - for example, when an employer needs fewer workers - as well as employee misconduct. Grievance procedures provide an informal, inexpensive process that can be used to resolve a wide range of workplace problems.
Just cause, representation and a fair process are rights most people would want - and, as Kim's studies show, most people mistakenly think they already have them.