By: Kelsey Whalen

Every state, with the exception of Montana, has an employment at-will presumption. Employment at-will means an employee can be terminated at any time for any reason (except an illegal reason) or for no reason at all. Employees may also quit at any time without providing notice. Additionally, laws have been implemented that provide employees with more protection which include anti-discrimination laws, whistleblowing laws, fair labor laws, as well as other federal and state statutes and common law protections. However, despite the laws created to provide employees more protection, at-will employment provides employers with much greater power in the employment relationship, leaving employees in a vulnerable position, lacking almost any bargaining power.

I. Contractual Employment Relationships

It is important to note at-will employment is a presumption. This means an employer and employee can contract around this doctrine, affording either party more protections or safeguards. Employers are typically willing to contract around this presumption with high-level employees because those employees tend to offer more specialized skills, acquire knowledge of confidential information, and would be more difficult to replace. This allows high-level employees to contract for protections, such as just-cause termination, a fixed-term contract, or a severance upon early termination. These employees also tend to have more bargaining power for their compensation and benefits. While many high-level employees have the leverage to take their skills elsewhere, many lower level or at-will employees do not have this luxury.

II. Lack of Employment Protection

Oftentimes, individuals living in poverty are thought to be analogous to those who are unemployed. However, very few adults between the ages 18 and 64, living in poverty, are actually unemployed or looking for work. Further, the people living in poverty at the highest rate continue to be American Indian/Alaska Native, African American, and Hispanic individuals. When looking specifically at those labeled as the “working poor,” African American or Hispanic individuals “continue to be about twice as likely as Whites and Asians to be among the working poor.” Women are also more likely to be among the working poor than men. Not surprisingly, the working poor are lower-level employees, holding much less bargaining power in terms of their employment. This means the working poor tend to have less security in their job while also relying heavily on their income.

Not only do the working poor have the least amount of security in their employment, they are also most likely to be the victims of an employer’s illegal activity. Their vulnerabilities and low bargaining power enable employers to have full control over the employment of the working poor. This includes keeping these employees at-will, providing them low salaries, and offering little benefits, such as health insurance. The demographics of the working poor also put them at a higher risk of discriminatory behavior, but their position financially makes them the least able to receive the protections the law provides.

While low-level workers are unlikely to be able to contract for protections or benefits, employment law does provide some degree of protection. Federal anti-discrimination laws protect employees, but in order to activate these protections workers must exercise their rights to enforce these laws. This means an employee often has to complain about discrimination to the employer in order to prevail in a lawsuit or be entitled to remedies. Low-level employees often cannot risk reporting discrimination due to the threat of retaliation. The strong reliance on income can cause low level employees to become bound to their employers. Even when an employee feels compelled to exercise their rights, hiring a lawyer to represent them, whether they still have a job or not, often is not an option.

While there are state and government agencies, such as the Attorney General’s Office or the Equal Employment Opportunity Commission (“EEOC”), where employees can pursue discrimination claims against their employer, this is often a long process. The EEOC often dismisses an employee’s claim, leaving them without a remedy. While the EEOC will still provide the employee with the right to sue, many employees cannot afford an attorney to pursue these claims.

III. Solutions for more employment protection

There are numerous ways to provide low level employees more protection in the employment context. First, more states could get rid of the at-will presumption and require just-cause termination, similar to Montana. At-will employment is specific to the U.S.; most other countries, for example, have indefinite employment. Indefinite employment requires an employer to follow certain legal procedures if they want to terminate an employee. Once the legal procedures are followed, the employer must provide the employee with a severance pay unless they have good cause for the employee’s termination. Transitioning to a just-cause or an indefinite employment system will greatly increase protection for low-level employees who are unable to contract for these protections. 

Second, the federal government should provide more funding to the EEOC to better investigate and pursue employee discrimination claims. Many low-level employees who are subject to discrimination cannot afford an attorney to protect them from retaliation or seek damages from the employer. Therefore, many employees rely on the EEOC to investigate their claims, free of charge. However, because the EEOC is inadequately funded it is unable to fully investigate or pursue claims of discrimination, and it often takes a long period of time to reach a determination. While the EEOC states the average time for an investigation is ten (10) months, some employees actually wait years to receive a determination due to the backlog. Providing additional funding to the EEOC could help with this issue because giving the agency more resources should either speed up the time it takes to investigate a claim and/or allow for a more thorough examination of the employee’s claim. Additionally, better EEOC enforcement, including more in-depth investigations and quicker outcomes, will hold more employers accountable for their discriminatory actions. If employers are held more accountable for illegal activity, I believe they are more likely to treat their employees fairly and promote a better work culture.