Wrongful Discharge Law in the Land of Employment-at-will: A US Perspective on Unjust Dismissal

Abstract

Fifty years after the United Kingdom adopted the principle of fairness in dismissals, the United States remains a global outlier in its continuing adherence to the presumption of ‘employment-at-will’ (EAW). In 49 out of 50 states, absent an agreement ensuring job security, employees can be fired without notice at any time and without any reason. The original version of EAW was stark indeed: Employers could terminate employment ‘for good cause, for no cause, or even for cause morally wrong, without thereby being guilty of a legal wrong’. For several decades in the early twentieth century, that principle was elevated to constitutional status as a near-sacrosanct dimension of the ‘liberty of contract’. In that benighted era, the Supreme Court held it unconstitutional—that is, ‘not within the functions of government’—for either Congress or the state legislatures to constrain employers’ right to hire and fire at will. In striking down a statute prohibiting the discharge of an employee based on union membership, the Court could not have been more clear: Absent a contract