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At-Will Employment and The Inequality of Bargaining Power in the Job Market
joshofalltrades
Class TraitorSmoke-filled roomRegistered User regular
Class TraitorSmoke-filled roomRegistered User regular
You're a company/person with some strong opinions on deregulating and the free market. You perceive the ability of the individual worker to abandon your company without giving a reason or notice as unfair to you, because you can not similarly dismiss them so abruptly. ...Or can you?
Enter at-will employment!
From Wiki:
Obviously this is a double-edged sword. From the perspective of a business owner, most are of the opinion that they should be free to employ who they wish, and that messing with at-will employment is tantamount to allowing the government to have greater control over their hiring and firing practices than they themselves do.
Hogwash, I say! Poppycock!
The protections for business owners are overly broad and if an employer is concerned that they will need a reason to fire somebody because their performance is good but they don't like the employee's face or whatever, perhaps they should make more careful selections in their interview process. Because at-will employment leads to situations like:
- Employee handbooks becoming meaningless. Complying with guidelines gives an employee zero protection against being fired. An employer may even fire someone in direct violation of the policies they themselves give to their workers.
- It's legally perfectly OK for employers (in some states) to lie to attract prospective employees. Say you have a house in Washington, and you receive a job offer in New York. They want you to sell your house and move to NYC, and promise you a salary for doing so. So you sell your house and move, but then oops, they are refusing to give you the job now. Under at-will employment, there's no expectation of holding a job for even a fleeting moment, and the job therefore has no value to be vindicated through a lawsuit. You would never have given up your home and salary if you knew a company's true intentions, yet here you are holding your dick in your hand.
- Situations can arise where an employer asks you to violate the law or a code of ethics as a requirement for continued employment. Refusing to violate the law is protected against as an exception against firing, but there's two problems. First is the "no cause at all" part of at-will employment. An employer is not required to give a reason for your dismissal, so good luck showing a court that they fired you for the reason you say they did. Which brings me to the second problem: the burden of proving the request for illegal or immoral conduct is on you, not your employer. Unless you have a recording device in your pocket on at all times, it's highly unlikely you even have sufficient evidence to bring your case to trial. And even if you did...
- Companies are bigger than you are. The whole idea behind at-will employment is to protect businesses, not workers. Thing is, corporations don't need this protection because there's several disparities between a worker and a business.
This is a relatively new concep-oh shit no it isn't.
As there is a disparity in purchasing power (a big corporation can hire fancy, expensive lawyers over a long time period, whereas an individual may have difficulty retaining even basic legal counsel), financial reserves (suing an employer is not going to harm them much in comparison even if you win your wrongful termination case, which is statistically unlikely), dependency (a company needs you far less than you need employment), etc., it makes sense to give more power to individual workers with regard to retaining the employment which was agreed upon at the time of hiring.
This topic is tangentially related to unions, which form (at least partially) in an effort to decrease these disparities, but I'd like this thread to avoid getting into the real meat and politics of unions except as a possible direct solution to this particular facet of the conversation.
My opinion: at-will employment is more of the same "invisible hand of the free market" bullshit and it would be in our best interests to protect workers from getting fired for literally no reason or bad reasons. Corporations should be required to show that there is a good reason for terminating an employee. We can debate in this thread what a "good reason" is.
Enter at-will employment!
From Wiki:
At will employment is generally described as follows: "any hiring is presumed to be 'at will'; that is, the employer is free to discharge individuals 'for good cause, or bad cause, or no cause at all,' and the employee is equally free to quit, strike, or otherwise cease work." In an October 2000 decision largely reaffirming employers' rights under the at-will doctrine, the Supreme Court of California explained:
“ [A]n employer may terminate its employees at will, for any or no reason ... the employer may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment ... The mere existence of an employment relationship affords no expectation, protectable by law, that employment will continue, or will end only on certain conditions, unless the parties have actually adopted such terms.”
At-will employment disclaimers are a staple of employee handbooks in the United States. It is common for employers to define what at-will employment means, explain that an employee’s at-will status cannot be changed except in a writing signed by the company president (or chief executive), and require that an employee sign an acknowledgment of his or her at-will status.
Obviously this is a double-edged sword. From the perspective of a business owner, most are of the opinion that they should be free to employ who they wish, and that messing with at-will employment is tantamount to allowing the government to have greater control over their hiring and firing practices than they themselves do.
Hogwash, I say! Poppycock!
The protections for business owners are overly broad and if an employer is concerned that they will need a reason to fire somebody because their performance is good but they don't like the employee's face or whatever, perhaps they should make more careful selections in their interview process. Because at-will employment leads to situations like:
- Employee handbooks becoming meaningless. Complying with guidelines gives an employee zero protection against being fired. An employer may even fire someone in direct violation of the policies they themselves give to their workers.
- It's legally perfectly OK for employers (in some states) to lie to attract prospective employees. Say you have a house in Washington, and you receive a job offer in New York. They want you to sell your house and move to NYC, and promise you a salary for doing so. So you sell your house and move, but then oops, they are refusing to give you the job now. Under at-will employment, there's no expectation of holding a job for even a fleeting moment, and the job therefore has no value to be vindicated through a lawsuit. You would never have given up your home and salary if you knew a company's true intentions, yet here you are holding your dick in your hand.
- Situations can arise where an employer asks you to violate the law or a code of ethics as a requirement for continued employment. Refusing to violate the law is protected against as an exception against firing, but there's two problems. First is the "no cause at all" part of at-will employment. An employer is not required to give a reason for your dismissal, so good luck showing a court that they fired you for the reason you say they did. Which brings me to the second problem: the burden of proving the request for illegal or immoral conduct is on you, not your employer. Unless you have a recording device in your pocket on at all times, it's highly unlikely you even have sufficient evidence to bring your case to trial. And even if you did...
- Companies are bigger than you are. The whole idea behind at-will employment is to protect businesses, not workers. Thing is, corporations don't need this protection because there's several disparities between a worker and a business.
This is a relatively new concep-oh shit no it isn't.
It is not, however, difficult to foresee which of the two parties must, upon all ordinary occasions, have the advantage in the dispute, and force the other into a compliance with their terms. The masters, being fewer in number, can combine much more easily; and the law, besides, authorizes, or at least does not prohibit their combinations, while it prohibits those of the workmen. We have no acts of parliament against combining to lower the price of work; but many against combining to raise it. In all such disputes the masters can hold out much longer. A landlord, a farmer, a master manufacturer, a merchant, though they did not employ a single workman, could generally live a year or two upon the stocks which they have already acquired. Many workmen could not subsist a week, few could subsist a month, and scarce any a year without employment. In the long run the workman may be as necessary to his master as his master is to him; but the necessity is not so immediate.
As there is a disparity in purchasing power (a big corporation can hire fancy, expensive lawyers over a long time period, whereas an individual may have difficulty retaining even basic legal counsel), financial reserves (suing an employer is not going to harm them much in comparison even if you win your wrongful termination case, which is statistically unlikely), dependency (a company needs you far less than you need employment), etc., it makes sense to give more power to individual workers with regard to retaining the employment which was agreed upon at the time of hiring.
This topic is tangentially related to unions, which form (at least partially) in an effort to decrease these disparities, but I'd like this thread to avoid getting into the real meat and politics of unions except as a possible direct solution to this particular facet of the conversation.
My opinion: at-will employment is more of the same "invisible hand of the free market" bullshit and it would be in our best interests to protect workers from getting fired for literally no reason or bad reasons. Corporations should be required to show that there is a good reason for terminating an employee. We can debate in this thread what a "good reason" is.
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The moving across the country and selling your house seems like you'd have a contract which would give you some ammunition against them. Laborers don't typically do that kind of stuff, and you see it in places where you wouldn't expect to find unions, even if unions were everywhere.
Certainly in the UK and NZ termination of employment contracts require notice to be served or paid.
Severance isn't a thing in the US.
At least not unless you're already making $100k+
And even if you do have a severance agreement, you will probably have to sue your former employer to get that money.
fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
that's right we're on a fucked up cruise / God is dead but at least we have booze
bad things happen, no one knows why / the sun burns out and everyone dies
By default, no, they don't even have to offer you a contract if you don't ask for it.
Ahahahaha...sorry.
'murica.
Ironically, wildcat strikes and secondary action are illegal.
Generally this is handled with some form of severance.
I'm not sure there are any systems where employers are forced to employ people. You just have to pay them or give them some specific amount of notice.
The idea being that people shouldn't have to lose their income stream with no warning.
fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
that's right we're on a fucked up cruise / God is dead but at least we have booze
bad things happen, no one knows why / the sun burns out and everyone dies
Those aren't really impediments to layoffs (I've been laid off in a non-at-will state.)
However, those situations you outlined are actually valid lawsuits in even at-will states. The house moving is a contract, because you're not dumb enough to move across country on a verbal agreement there is a paper trail, and in this country when you are promised something in writing you either get it or get compensated. And the employee handbook, if it goes over why you could be fired and doesn't explicitly say you can be fired for any reason at all due to At-Will employment it can be used as evidence of a contract between you and the employer about acceptable reasons to be fired. You can very easily enter contracts with your employer that invalidates At-Will laws, which is why I am very pro-union because they can even the bargaining power of the peon to match or even exceed the employer to essentially force him into an agreement that outlines explicit reasons for firing, but that's for a different thread.
I'd also rather fix the social saftey net so if an asshole employer does decide to fire with no cause the employee wont have to worry at all about paying the bills while looking for work, but that's also a different thread.
Seniority - and seniority based wage scales are a decent way of protecting the worker from arbitrary vs. necessary job loss.
A LIFO system means that the workers who are likely to lose their jobs are the lowest paid workers, and unnecessarily cutting jobs is only going to create a larger workload (and usually more overtime) for the higher paid senior workers. Unless demand or workload has decreased to the point that the current workforce is unnecessary and those lower paid / less senior workers aren't being utilized, cutting staff is only shooting yourself in the foot.
Adding in stronger protections like a notice / severance period tends to also makes cutting jobs a more meaningful decision from an employer. Personally, I've always thought it was odd that as an employee, I'm expected to give two weeks notice and could possibly suffer in future employment opportunities if I don't give notice - but an employer can pretty much show up with a box and have me at the curb in five minutes with no meaningful repercussions.
EDIT - of course, seniority systems are more of a kludge than an actual solution - at least in this respect.
Non-at-will doesn't mean this, though.
It generally means the employer needs to pay out severance if they fire someone without cause.
And being at will means the employer does get to discriminate when firing, despite any laws to the contrary. Good look proving that they were discriminating against you. There's no burden on the employer's side.
fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
that's right we're on a fucked up cruise / God is dead but at least we have booze
bad things happen, no one knows why / the sun burns out and everyone dies
So you can still fire someone for having a stupid face as long as you give them severance and notice?
Then you give them their 1-12 month notice (depending on contract and laws and all that jazz) and they quit working after that. Or an employee gives you an 1-12 month notice etc etc. Unions can complicate this of course, but that seems to be a discussion for another thread (in short though, if you are actually seeing less revenue or need less people you can usually come up with a way to fire people anyway).
As a swede, at will employment sounds absolutely insane. How are people supposed to plan anything at all if they can be fired whenever? Having a notice of a few months from both sides help the individual and the company to anticipate and adapt to new circumstances as needed. This is of course more important for the individual, which is why they often get a longer notice. And if you and your employer are amicable, you can usually work something out for quitting faster in case of an emergency.
I can. If it's cutting into a company's profit margin to keep an employee, I don't think it's the best reason in the whole world, but it's a far better reason than, "I don't like your face." At least it's a decision being made with the idea of a corporation in mind; businesses exist to make money, and if a person is costing a company money, it makes sense to let that person go.
But with at-will employment, there's nothing that says you have to give that employee notice, or severance, or anything. Non-union employees are quite literally at the mercy of their employers' whims and it's a bad place for them to be. If we had laws on the books that said something to the effect of, "You can fire an employee for no reason at all, but you have to pay them a salary for X amount of time after notifying them" and "If you have a 'good' reason to fire an employee (i.e. theft, no-call no-show, etc.) you have no obligation to pay any kind of severance", I'd be a lot more comfortable with the idea that a manager can just tell you to step into their office because you're fucking fired, that's why.
It makes no sense to me that there is no obligation for an employer to have to provide a reason for firing an employee, even if that reason is that the employee has chronic acne.
Well, if I'm an asshole employer and I couldn't fire them, I'd just start cutting their hours until they left on their own. Then at least that way I wouldn't have to pay for unemployment for them too
By law when either party terminates the contract notice, as agreed in the contract, is served, which usually means one remains in post. Then there are statutory rules that apply to impose minimum terms if the contract doesn't.
There may be entitlement to additional monies as compensation in addition to notice pay in some situations, usually long service.
Yes because as if its not hard enough to enter the workforce in a meaningful way for millennials.
Seniority is a god damn nightmare, it is directly opposing any kind of meritocracy. It is the 'All animals are equal, some are just more equal' of US unions.
Most places, even now, count pulling hours the same as laying someone off.
I know in WA state at least I could claim unemployment if say, my hours were cut down to less than full time and then I quit.
fuck up once and you break your thumb / if you're happy at all then you're god damn dumb
that's right we're on a fucked up cruise / God is dead but at least we have booze
bad things happen, no one knows why / the sun burns out and everyone dies
Well, generally companies don't go around firing people all willy-nilly. It's really bad for morale and all that to just can people.
There is usually some process for termination - if a person is being terminated for performance or discipline issues, as long as the issues aren't major (i.e. shitting in the fridge) most companies have a warning / occurrence process so it's not out of the blue. When companies do major job cuts, the non-shitty companies usually give notice anywhere from a few weeks to a few months before they cut people to give them time to transfer / change jobs.
Companies that don't do that usually are ones that are on the way down fast, because not doing that is one of the best ways to have all your quality employees jump ship and be left with just the dregs. Circuit City is a pretty good example of a company that shot themselves in the foot and put themselves out of business by cutting jobs like that.
In other cases, there is unemployment insurance that helps cushion the job loss. Not great, but it's better than nothing.
Of course, most of the time you're screwed if you lose your job and don't have substantial savings. Stuff like tapping into retirement accounts is pretty common. Quite a few households are two-income, so having one spouse making something and the other collecting unemployment can get someone by for a little while....then there's always debt.
Going back to school is another common way to deal with job loss. You take out student loans so you can get retraining for other jobs, and take out extra for living expenses. Generally though, it sucks and you are pretty screwed when you lose your job - especially if it's part of a big round of cuts where your local area just got a couple hundred / thousand unemployed people in the same job sector as you.
Still better than the race to the bottom 'meritocracy' you're advocating.
The system we've got now is working oh so well for milennials.
Besides, there is plenty of room for meritocracy in a seniority system. For example, once upon a time a line worker could be promoted to a foreman or would be eligible to apply for a skilled trades position based on merit regardless of seniority.
Its basically a regime with contractual rules, overarching universal and service based protections, with specialist courts and loose conciliation and mediation requirements. NZ is pretty similar but with much stronger mediation requirements.
Trade union rules don't really cover most employment relations as they only really protect unionised staff in normal disputes or negotiation and most private employers are small and don't have unionised staff.
"Meritocracy" is an absolutely bullshit concept (trust me, nobody in their right mind would want to live in a true meritocracy) that is used to justify all sorts of discriminatory fuckmuppetry (see: Silicon Valley).
Companies below a certain size are also allowed exemptions to this, the assumption being that the agility is more important. One of the reasons it is viewed as less important for larger companies is a not-so-subtle expectation that the companies will shoulder part of the cost for retraining personnel. The idea being that firing someone, have them incur student debt (/let the taxpayers fund the education), and then rehiring should be discouraged, where as retraining existing employees should be encouraged. It's a form of sharing the social responsibility for ensuring that the labour force is able to meet the demands of the labour market.
That is often how it works here.
Probation usually is a contractual device where normal rules do not apply, then once complete, procedures and cause must be given. The problem is that wrongful termination usually won't generate significant loss and therefore compensation and so the cost or effort of pursuing the action may not be worth it.
In NZ/UK there is a distinction between short service and long service 3/13/24 months). So if dismissed within the period no reason is needed except if by contract, outside the period then reason must be supplied by reference to statutory definitions. This runs separately to contract
Why would it be a bad idea to require corporations to document their reasoning for terminating an employee? I mean, sure, if an employer wants you gone there are all kinds of tricks they can do, and they can certainly flat-out lie about their reasons, but at least in that case an employee would have something to argue against in court if there's a lie that can be revealed as such. Right now there's not even an opportunity to argue anything in almost every termination case because there's literally nothing to argue against. A company is completely legally within its rights to fire you because you wore Crocs on your day off.
Merit needs to be recognized and seniority needs to be afforded some respect (and have some sort of legal protection) because sooner or later all of us will stop climbing the ladder. We'll reach as far as our connections or our abilities will take us and even though we may give an exemplary effort and perform that job well someday your job will be handed to someone who will do it for two thirds of the salary and you'll be on the street all the same as if you had decided to tell the boss to go fuck him/herself.
Come Overwatch with meeeee
Googling around, it looks like this is where at-will employment got its start.
https://casetext.com/case/union-labor-hosp-v-vance-lumber-co#.U8bP8kCfmho
“Precisely as may the employee cease labor at his whim or pleasure, and, whatever be his reason, good, bad, or indifferent, leave no one a legal right to complain; so, upon the other hand, may the employee discharge, and whatever be his reason, good, bad, or indifferent, no one has suffered a legal wrong ... He who does what the law allows cannot be a wrongdoer whatever his motive."
Which is, as I will continue to argue probably throughout this thread, shitty, in large part because of, again, the disparity that exists in bargaining power.
Here's some recommended reading on the history and context of at-will employment:
If you can't measure someone's output, then meritocracy can't be used in that position.
If you have an assembly line and someone assembles widgets every day, and they do 10% more than everyone else, maybe they deserve a raise or a bonus. But if you're using the average to pay people less if they perform less, then no, that's bad.
Sometimes there's a slow day.
Also if you're purposefully affecting output, that could be an issue. But the way around that would be measuring against coworkers during the same period of time rather than a "best average ever done ever during the height of economic boom" I imagine they'd try.
I'd trust myself to be fair and impartial, I wouldn't trust pretty much anyone else though. People are scumbags when it suits them.
Yes, but the legal and monetary protections afforded to the employees in this case would act to remove incentives for wrongful firing. It'd make employers have to actually consider whether letting someone go for X reason is worth it. Right now, the issue is that there's literally nothing that is even giving corporations pause.
EDIT: Though it's definitely worth noting, though, that if those who worked in at-will states actually exercised their rights in this manner, there are a lot of companies out there that would really feel it.
In the end, leaning to far one way or the other is bad.
And companies should have some leeway in who they keep on. But I think when you're at the point where I can fire you for having a different political opinion than me but sack you for "sloppy work" or a "bad attitude" or some nonsense you've gone too far.
I would also conjecture; however, that we have never existed outside of that paradigm in anything other than edge cases and flukes, even with unions.
I would agree with this, but the current state of capitalism has definitely led to these attitudes being utilized in a way the American workforce hasn't seen in quite a long time, and this time with less much less of a balacing force (in this case, the government) willing to step in to at least try to balance the scales. I sincerely doubt we'll see a push for strengthening unions anytime soon, based on the political climate and the floundering death rate of the baby boomers.
Imma stop you right here.
An assembly line is pretty much the quintessential example of where merit pay makes no sense. You can not do better on an assembly line. The line is going to have a throughput that is the production rate of the slowest station. If I can bang out a gizmo in 5 seconds flat it is irrelevant if I'm fed gizmos only every six seconds.
What assembly lines could operate on is Fuck Up Penalties. If you're supposed to give me a gizmo every six seconds but you average twelve then everybody has a bad day.
The issue is the psychology of the set up. If I say "You do good I'll give you cash!" everybody is cool with this. If I say "Fuck up again and you're getting docked" well, that specifically is illegal, but any kind of negative is going to go badly. In the realm of pure geekery we can say there shouldn't be a difference between a reward from baseline for above average and a reduction in baseline for below average but in the realm of actual people it just doesn't work well.
...and of course even in these environment good people can do better. When I was a supervisor in a similar scenario I could handle the work of two different people at once when giving breaks. Now that wasn't really directly recognized (and I did it for half an hour most times, not the same as an 8 hour shift) but it was indirectly recognized as there was a reason I was a supervisor rather than an operator.
There are areas where you can measure (reject rate for one) though they get a bit tricky because in my industry it's more about catching mistakes by the machine rather than you failing to do something properly.
As far as at will goes....I got to hear some senior management talking about how they expect somebody getting a new job to be told to walk away right then regardless of two weeks notice. It wasn't really about our company practices, just the general way things are done, but still super cheery and positive to hear guys.
Workers should get more protections, and I think they probably will over time, all I was saying was that the world we're talking about hasn't ever existed yet. It's still something To Be.
Unions got out PR'd, especially among the working class.
I never hear about good things Unions do and routinely hear shit about stupid things Unions do. I KNOW they do lots of good things, I just never hear about it.