Employment is a part of the foundation of American adulthood. In the nineteenth century, particularly for the working poor, peoples spent almost all their waking hours working. The conditions were bleak, with hundred-hour weeks, children working as soon as they were capable,1 and millions of Black Americans enslaved.2. Yet, many pushed forward in search of a brighter future. The progress has not been smooth or simple, but civil rights workers have masterfully used the legal system to gain meaningful progress for workers rights.
This progress is not yet complete. The average American now works a forty-four-hour workweek,3 meaning that over a quarter of their week is spent in the office. Jobs dictate who people spend most of their days with, playing a big role in a person’s social life and dictating their economic stability. However, one of the biggest problems still facing American workings is is at-will employment.4 At-will employment leaves employees without stability in their lives. Like building a house on a sand foundation, the livelihoods of many American workers can be eroded with only a moment’s notice. Although this is the norm in the United States, most of the rest of the post-industrial world uses some configuration of for-cause employment.5
For-cause employment is an arrangement that allows employers to terminate their employees only when there is a sufficient reason to do so, such as poor employee performance, misconduct, or economic necessity.6 A common argument against jurisdictions adopting a system of for-cause employment is that it undermines the American principal of freedom to contract.7 This concern is not an adequate justification for maintaining an at-will system. if American jurisdictions were to switch to a just-cause employment presumption, companies would still be free to hire and arrange the terms of employment as they see fit. All they would lose would be the ability to fire an employee for no reason at all. This shift would ask employers to think through what duties and roles their employees are required to fulfill prior to hiring them. For-cause employment leads to clearer terms of employment which is good for employers and employees. Experts suggest that giving team members clearly defined goals and guidelines increases productivity and success.8
One tool that American Workers haved used to gain access to for-cause employment is collective bargaining through union participation. Access to unions and union participation have long been synonymous with being an American Worker.9 Unions get their power directly from their ability to engage in collective bargaining. Therefore, anything that allows individual workers to benefit from the unions while not financially supporting them is harmful to unions and therefore workers.10
Although the working conditions that unions have helped establish are wildly popular, financially supporting unions is not. Because of this, many unions require membership in order to work at a particular company. This ensures that no person benefits from the union while not taking on their share of the burden. However, the Supreme Court this past year decided against this principal holding in Janus v. AFCME that Illinois’ attempt to prevent nonmembers from benefiting from the union did not override their right to use their money as speech.11 This decision has the potential to harm workers in many ways, most of which are related to the undermining of unions. Unions were formed in the first place to overcome the some of the horrors that can come from unchecked capitalism.12 One of the great successes of unions has been an increase in for-cause employment – the Janus decision threatens that success.
Marguerite Ward, A Brief History of the 8-Hour Workday, Which Changed How Americans Work, CNBC (May 3, 2017), https://www.cnbc.com/2017/05/03/how-the-8-hour-workday-changed-how-americans-work.html. ↩
Slavery in America, History (Jan. 31, 2019), https://www.history.com/topics/black-history/slavery. ↩
Ward, supra note 1 ↩
The At-Will Presumption and Exceptions to The Rule, Nat’l Con. St. Legislatures (Mar. 30, 2019), http://www.ncsl.org/research/labor-and-employment/at-will-employment-overview.aspx. ↩
Peter Linzer, The Decline of Assent: At-Will Employment as a Case Study of the Breakdown of Private Law Theory,20 Ga. L. Rev. 323, 325-26 (1986); see generally Lochner v. New York, 198 U.S. 45 (1905). ↩
Rebecca Knight, How to Boost Your Team’s Productivity, Harv. Bus. Rev. (Jan. 29, 2016), https://hbr.org/2016/01/how-to-boost-your-teams-productivity. ↩
National Labor Relations Act., 49 Stat. 449; Charles Borchert, Just Cause: A Union Guide to Winning Discipline Cases, Lab. Notes (Oct. 10, 2012), https://www.labornotes.org/blogs/2012/10/just-cause-union-guide-winning-discipline-cases. ↩
Collective bargaining requires a critical mass of workers to participate to be effective. Collective Bargaining, AFL-CIO (Apr. 8, 2019), https://aflcio.org/what-unions-do/empower-workers/collective-bargaining. ↩
See Janus v. AFSCME, 138 S. Ct. 2448 (2018). ↩
Ward, supra note 1. ↩