That the exceptions are narrow and place heavy burdens on the employee, stem from the immense benefits the system confers onto employers. When employees can be fired for any reason, they are replaceable, allowing employers to undercut in other areas as they hold the threat of termination in their hands. Employers, a vocal and powerful group, have greater influence and ability to ensure protect their interests in courts and legislation that workers often lack outside of organized contexts.

How would you demonstrate that? Employers from small to large throughout the economy plainly do not think so.

At-will employment emerged, in part, from the Lochner era where notions of economic liberties and freedom of contract reigned.

I don't understand this statement. What was the prior condition from which the latter 19th century supposedly diverged? Where in the antebellum US was the employer's control of the job regulated? Even if we leave out the large enslaved and indentured workforces from which the worker had not even the right to quit, where is the moment at which the employer's will did not dominate all employment relations here?

Courts have long since moved away from such notions of economic liberties in light of changing circumstances, allowing preference for market regulations to protect workers or other interests instead. However, the relic of at-will employment remains preventing workers from having strong job security, particularly in a weakened union context.

But there is no example of any US jurisdiction adopting such a rule at all, let alone without legislation.

Why no link?

“[t]he continued vitality of the common law depends upon its ability to reflect contemporary community values and ethics.” Court have a duty to ensure that the common law embraces fairness in the way that people see it. The majority of the public supports changes to at-will employment and most workers believe the current system affords them more protections than it does. Courts are able to usher in this change in light of economic realities and should not abdicate their duty to do so.

This is a clear and lucid draft. It's also pure fantasy. The effect is achieved by paying not one word of attention to any ideas or arguments other than its own. When every business' interests, from Amazon to the corner store, are completely disregarded, one can somehow imagine state supreme court justices adopting an equally one-sided view of the issues and a similarly capacious sense of their own "responsibility." So the best route to improvement is to put the next draft in touch with both sides of the discussion. Understanding a labor market, as I wrote you earlier in another context, involves thinking like employers as well as workers.

Ending At-Will Employment Through Judicial Authority

-- By LydiaMurray - 20 Apr 2022

Introduction

The concept of at-will employment represents an out-dated mode of thinking on employment relationships that is no longer applicable in modern contexts. At-will employment emerged, in part, from the Lochner era where notions of economic liberties and freedom of contract reigned. Courts have long since moved away from such notions of economic liberties in light of changing circumstances, allowing preference for market regulations to protect workers or other interests instead. However, the relic of at-will employment remains preventing workers from having strong job security, particularly in a weakened union context.

At-will employment is a common law doctrine (in all states except Montana) that allows employers (and employees) to terminate an employment contract for any or no reason. There are some exceptions to the at-will rule, however they do not sufficiently protect workers to justify its continued use. As a primarily judge-made doctrine, courts in most jurisdictions have the power to change the law to an updated model like just-cause termination. A system like just-cause would require employers to have a justifiable reason for terminating an employee, meaning employee’s livelihoods would no longer rest entirely on the whims of their employers.

Judicially Created Exceptions to At-Will

Overtime, courts in most jurisdictions have created carve outs to the default at-will rule. Some critics argue that these reforms erode the benefits of the at-will system, but from the perspective of the worker the changes do not go far enough.

Most jurisdictions recognized exceptions for public policy, implied contract, good faith and fair dealing, promissory estoppel, illegal discrimination, and retaliation. However, in practice courts have construed these exceptions narrowly. For instance, with the most common exception of public policy, courts often find unlawful firing only where a clear legal right has been violated or where there are outrageous violations of public policy. With other common exceptions like implied contract (wherein an oral or other assurances of job security can be taken as implied contract), courts typically disregard language suggesting permanent employment as unrealistic and impose a strong presumption of at-will. Employers can also easily get around implied contracts with explicit language in written contracts embracing at-will. Even anti-discrimination protections only go so far as to protect against fairly explicit firings based on protected characteristics, with the burden of proof on the employee to show that the firing was for that reason.

The general presumption in favor of at-will employment additionally places the burden on the employee to prove that their termination was impermissible, despite most employees likely lacking the necessary time or resources to pursue such litigation. In such a context, the narrow exceptions do little to protect workers from unjust termination.

Policy Justifications

The benefits of ending at-will employment are immense. Fundamentally, worker’s deserve stability in income and employment situations. However, in addition to a recognition of that right, ending at-will employment would likely also improve the working conditions across the board.

Providing better job security to workers could improve workplace safety, as workers would not have to fear retaliation (which they would have to prove if they sued) for reporting unsafe conditions. It would strengthen civil rights protections by shifting the burden off the employee to prove discrimination. And otherwise allow employees to freely advocate for improved conditions without fear of retaliation.

Employees inherently face unequal bargaining power in employment contracts, as they depend on work for their livelihood whereas an employer can fairly easily find another employee willing to take an at-will contract. Therefore, the change must come from the state, as employees lack the power (outside of unions) to enact such changes themselves. Particularly, courts should adopt mandatory rules of just-cause or other interpretations of employment contracts.

Analogy to Tenancy Revolution

In response to decades of increased urbanization and the lack of rights for tenants in face of inequality in bargaining power, courts created new interpretations and doctrines to protect tenant’s rights. Regulations later followed, but the courts made many of the first key moves in adopting new protections for tenants.

Tenants faced similar situations as the modern worker in which they lacked any real bargaining power against the landlords while simultaneously relying on them for housing, as barriers to home-purchasing locked many out of the market.

In light of this, courts, using their discretion and law-making abilities, changed centuries-old common law doctrine in the transition from the independent to dependent covenants model, embracing a contractual framework for leases that imposed relational liability on landlords. Courts also introduced new doctrines for tenant protection such as the implied warranty of habitability and the landlord's duty to mitigate damages. This judge-made revolution empowered tenants and provided them with rights long needed under the circumstances.

While courts are often squeamish about openly embracing the construction of new law, when the circumstances demand it they can and should take judicial notice of the changing social environment and act when the legislature fails to do so. Particularly, with at-will employment, courts are already operating under a common law doctrine, providing them with the ultimate discretion on when and how to change it.

As Judge Wright wrote in the landmark case in the tenancy revolution Javins v. First National Realty Corp., “[t]he continued vitality of the common law depends upon its ability to reflect contemporary community values and ethics.” Court have a duty to ensure that the common law embraces fairness in the way that people see it. The majority of the public supports changes to at-will employment and most workers believe the current system affords them more protections than it does. Courts are able to usher in this change in light of economic realities and should not abdicate their duty to do so.

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