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Employment Law: Employment at Will

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1.) Discuss the evolution of the "employment at will" Doctrine in the United States and what it means within the employment law context today?

2.) Discuss the steps an employer can take to minimize its exposure to possible employment litigation? Provide references.

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1.) Discuss the evolution of the "employment at will" Doctrine in the United States and what it means within the employment law context today?

As pointed out by Muhl (2001), many workers in the United States believe that satisfactory job performance should be rewarded with, among other benefits, job security. However, this expectation that employees will not be fired if they perform their jobs well has eroded in recent decades in the face of an increased incidence of mass layoffs, reductions in companies' workforces, and job turnover. http://www.bls.gov/opub/mlr/2001/01/art1full.pdf In the United State, however, employees without a written employment contract generally can be fired for good cause, bad cause, or no cause at all; judicial exceptions to the rule seek to prevent wrongful terminations. In the legal sense, this is referred to employment-at-will doctrine.

History of employment-at-will doctrine...

In legal terms, since the last half of the 19th century, employment in each of the United States has been "at will," or terminable by either the employer or employee for any reason whatsoever. The employment-at-will doctrine avows that, when an employee does not have a written employment contract and the term of employment is of indefinite duration, the employer can terminate the employee for good cause, bad cause, or no cause at all. Muhl (2001) summarized the history of the employment-at-will doctrine as follows:

· Traditionally and as recently as the early 1900s, courts viewed the relationship between employer and employee as being on equal footing in terms of bargaining power. Thus, the employment-at-will doctrine reflected the belief that people should be free to enter into employment contracts of a specified duration, but that no obligations attached to either employer or employee if a person was hired without such a contract. Because employees were able to resign from positions they no longer cared to occupy, employers also were permitted to discharge employees at their whim.

· The Industrial Revolution planted the seeds for the erosion of the employment-at-will doctrine. When employees began forming unions, the collective bargaining agreements they subsequently negotiated with employers frequently had provisions in them that required just cause for adverse employment actions, as well as procedures for arbitrating employee grievances.

· The 1960s marked the beginning of Federal legislative protections (including Title VII of the 1964 Civil Rights Act) from wrongful discharge based on race, religion, sex, age, and national origin. 3 These protections reflected the changing view of the relationship between employer and employee. Rather than seeing the relationship as being on equal footing, courts and legislatures slowly began to recognize that employers frequently have structural and economic advantages when negotiating with potential or current employees. The recognition of employment as being central to a person's livelihood and well-being, coupled with the fear of being unable to protect a person's livelihood from unjust termination, led to the development of common-law, or judicial, exceptions to the employment-at-will doctrine beginning in the late 1950s.

· The bulk of the development of these exceptions did not take place until the 1980s, but as we enter the new millennium, the employment-at-will doctrine has been significantly eroded by statutory and common-law protections against wrongful discharge http://www.bls.gov/opub/mlr/2001/01/art1full.pdf.

Today it means that an employer cannot exercise the freedoms once afforded her or him under the employment-at-will doctrine, and that all employers need to consider and follow the employment laws and regulations closely or else risk coming before the court (e.g., employment litigation). Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. Examples of federal statutes include:

· Equal Pay Act of 1963 (relating to discrimination on the basis of sex in payment of wages);
· Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);
· Age ...

Solution Summary

Discusses the evolution of the "employment at will" doctrine in the United States and what it means within the employment law context today. It also discusses the steps an employer can take to minimize its exposure to possible employment litigation. References are provided.