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Employment at will in the US

A recent op-ed in the New York Times advocates for the imposition of just cause employment to be passed as part of any employment reform legislation. I explain the concepts of employment-at-will and its opposite, just cause employment, to prospective clients all the time so I wanted to take the opportunity to explain it here in the wake of this op-ed.

The default employment relationship in Massachusetts, and generally across the US, is "at will." (This is generally not so in many other places outside the US.) At will means, by default, you can be fired at the employer's will. From the employee's perspective, it means you can leave at anytime.

But, but, but, you say? Yes, there are buts.

First, there are ways of contracting around this system -- by personal employment contract, for one, or through a collective bargaining agreement between a union and an employer, for another. But these are not terribly common these days; the op-ed notes, for example, that union membership is currently at 6% in the private workforce.

To understand at will employment, I ask clients to picture a vast landscape -- a wide open vista. That's the employment at will relationship.

But employees have certain rights, don't they? What is this Family and Medical Leave Act (FMLA)? Or, don't they have some sort of right to be free from sexual harassment and retaliation?

For sure, in certain cases.

Back to that vast landscape, across it are pockets of rights. These are largely things that Congress or Beacon Hill have decided should be illegal. They give rise to certain protections for workers who fall within those pockets. But because the pockets are carved out of the vast landscape, they are inherently limited.

So, to take the FMLA as just one example. That pocket applies if you work for a large enough employer (50 or more employees within a 75 mile radius); have worked there long enough (have put in 1,250 hours in the past twelve months); and have, or a certain family member has, a "serious medical condition," which I'm not going to begin to go into here. (Other eligibility factors also apply.)

The FMLA, thus, is one pocket, but its application is circumscribed.

A just cause system system instead would impose a type of grid on the vast landscape. It would change the nature of the entire employment relationship by only permitting employers to fire someone for legitimate cause.

So, instead of pushing out the woman who filed the sexual harassment complaint and not giving much of a reason (or providing her a false reason) under the at-will system, the just cause "grid" would require the provision of a legitimate cause for termination.

Now, would just cause stop altogether the ne'er-do-wells from committing ne'er-do-well acts? No. Employers could still act badly and illegally.

But the imposition of the grid changes the game. By forcing employers to come up with a reason for the termination, it puts far more pressure on employers to act less capriciously than they now have incentive to act. That in turn protects employees and their jobs.

The op-ed doesn't quite get into this level of detail so I wanted to provide it here, as so many individuals are confused -- understandably -- about how employment laws operate.

One last thing: many people reach out to an employment lawyer -- online with a few sentences, or by phone thinking it's a quick call -- assuming that they can get a quick answer to a question that is usually something like "is that illegal?"

They are surprised to find it often requires a lot of detail to be able to opine on the legality of the act. My sense is the reason they are surprised is because employees intuitively believe the employment law system is a grid. Thus, the lawyer can provide a quick answer to a quick question that at its base is "did it cross the line?"

To use the FMLA example set out above, if the presenting issue relates to family leave or medical leave, a lawyer instead needs to dig into the individual's circumstances to see if the FMLA even applies. Sometimes it can be fairly clear from the beginning; other times it requires a lot of digging to figure out out many employees work within a 75 mile radius alone (just to start).

In short, where our employment law system is a vast landscape with certain limited pockets, you have to dig into the details to see if one of the pockets applies.

The imposition of a system of just cause termination could also begin to change that, possibly making it that much easier for individuals to assert claims. That too would be a tremendous benefit.

Doorways Employment Law specializes in employment law counseling, strategic advice and representation to individuals and businesses across Massachusetts. Contact Doorways Employment Law for an employment law consultation.

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