By: Kyle Minardi
“I don’t have to give a reason to fire you.” These were the words that Yeral Martinez heard from his manager as he arrived to work one morning. In the days prior, Yeral had been working at restaurant in Manhattan, when he injured his back unloading boxes. Instead of leaving to seek medical attention, however, he was forced to work the remainder of his shift. A couple of days later, still in pain, he called in to work to ask for time off using his sick or vacation time and was told it would be fine. However, his manager the next day apparently did not feel that way. He was told not only that he’d been fired, but that his work did not even need to explain why he’d been fired.
But Yeral’s manager was right. Not only did they not have to give a reason, but they also didn’t have to have one in the first place. They could have fired him because it was a Tuesday. They could have fired him because it was cloudy outside. They could have fired him for any reason they pleased, because Yeral’s employment was “at will.”
What is “at will” employment?
“At will” employment describes the terms under which an employee may be fired from their position by an employer. Under this concept, an employer may fire an employee for almost any reason, or for no reason at all. The employer does not need to provide the employee or anyone else a legitimate motive for firing an employee. The employee’s status and job exist solely at the will of the employer.
Of course, even under an at-will regime, there are some mechanisms in place which protect workers from unjust firings. Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act all prohibit an employer from terminated employees for discriminatory reasons based on protected classes such as race, gender, disability status, and age. Additionally, a few states imply a covenant of good faith and fair dealing into their contracts (including those for employment), which may provide redress for firings which are clearly arbitrary.
These protections, though important, do not provide a safety net for employees who are fired for reasons not explicitly illegal. Almost every state in the United States, with the lone exception of Montana, operates under a presumption that employment is at-will.
Why is at will employment a problem?
At will employment creates an environment where workers can lose their jobs for reasons far beyond their control. This fear is not unfounded; a 2020 survey by Data for Progress polled workers across the nation and found that almost half of those surveyed reported at one time being fired for no reason, or an arbitrary/bad reason. This data also indicated that Black and Latinx workers experienced higher rates of such firings, and experiences longer periods between jobs after a firing than their white counterparts. In New York’s fast-food industry, sixty five percent of workers who had been fired or laid off did not receive a reason for why they were fired.
Losing a job suddenly can have serious financial and mental health ramifications for workers who lose their employment. According to the Federal Reserve, forty seven percent of US adults would not have the cash reserves to cover an unexpected $400 expense, a problem which could easily arise if a worker suddenly loses income. Additionally, displaced workers may have to resort to lesser quality work or less consistent/part time work. On top of the impact to short term finances and long-term economic prospects, such job loss can cause significant stress and increase symptoms of depression and anxiety.
To avoid the risk of being fired or disciplined, workers have at least occasionally taken on tasks not required by their job or engaged in potentially dangerous behavior. A sizeable number of employees have themselves or knew a coworker who had at least on a few occasions worked extra hours without pay, postponed medical care, endured verbal abuse, or came to work sick or injured. In an at-will situation, refusing or failing to engage in such risky or unnecessary conduct could result in termination, without any legal recourse.
What is the solution?
Recent legislative activity this past year at the state and municipal level indicate that an alternative to at-will employment is worth discussion. That alternative is “Just Cause” employment. As its name implies, just cause employment requires that an employer have a legitimate reason to terminate an employee. Generally, this limits termination to situations in which the employee has failed to adequately perform their work duties, or when economic circumstances require a business to terminate an employee.
In January of this year, the New York City Council passed two ordinances specifically applying this standard to its fast-food workers. The ordinances prohibit terminating, reducing hours, or constructively discharging a fast-food employee unless except for an employee’s “failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast-food employer’s legitimate business interests” or for a “bona fide economic reason.” This latter term is further defined as the “full or partial closing of operations… to the business in response to the reduction in volume of production, sales, or profits.” This ordinance, however only applied to a particular industry.
Although Montana is the only state which currently has a just cause requirement in force, labor activists in Illinois have attempted to expand that list. A few months after New York passed its ordinances, a bill was introduced in the Illinois Legislature offering similar protections. The proposed Illinois Employee Security Act would protect employees regardless of industry and allows for termination only for an employee’s failure to perform their duties, for egregious misconduct, or bona fide economic reasons. However, no action has been taken in either chamber since April, indicating that the bill may have died in committee. Regardless, it is a sign of positive action in this area.
Just Case Employment Benefits
Just Cause employment provides significant protections to workers who may rely on job and income stability from arbitrary firings, but this policy has other benefits for politicians and employers. Just cause employment protections enjoy popular support; a 2020 Data for Progress poll indicated that sixty seven percent of polled individuals at least somewhat agree with just cause protections. A separate poll found that contested congressional districts, that support goes up to seventy one percent, including sixty one percent among Republican voters and seventy five percent among Democrat voters. Though not universal, this seems to be an issue which has legitimate, bipartisan support.
Employers may also benefit from a just cause framework over an at-will employment scheme. Some have argued that arbitrary firings are disruptive, costly in terms of training new employees, and hinders honest and open communication in the workplace due to fears of retaliation. In addition to creating a divisive, fear-based environment, at will employment might also protect poor managers, as employees may worry that raising concerns will cost them their jobs. Just Cause may remove the (near) carte blanche employers have in their employment agreements, but it could create more efficient work environments that workers want to engage with.
It is also important to reiterate that Just Cause employment in no way limits an employer’s ability to fire a worker who has abandoned their work or does not perform their duties appropriately. Neither the New York ordinances nor the Illinois bill would prohibit employers from taking justified disciplinary actions toward employees who fail to do their duties, nor would they require an employer to retain employees if that employer cannot afford to pay them. What it does do is prevent employees from losing their job at random or through little or no fault of their own.
Conclusion
At-will employment forces workers to endure conditions and adopt behaviors they should not be required to accept. A better, more popular alternative exists for employees and employers alike, and it is not without precedent. Just Cause employment protections should be a priority goal at both the state and local level for labor activists and policy makers alike. Just Cause employment provides a simple, common-sense solution to the problem of arbitrary firings.
Kyle is a 3L at the Sandra Day O’Connor College of Law at Arizona State University. He graduated from Belmont University’s College of Theology and Christian Ministry with a B.A. in Faith a Social Justice, along with minors in Sociology and Business Administration. His legal interests include employment and environmental law, and in his free time he enjoys cooking, as well as watching college football or Star Trek.
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