Workers’ Rights: Legislating Away At-Will Employment

 The long and brutal fight for workers’ rights extended for many decades, finally reaching a point where workers could organize and negotiate with companies on working conditions, wages, and other benefits, and have the terms contractually formalized.  One of the most desired features was the requirement that a worker could only be fired for “just cause,” not on the whim of the company.  

Times changed and workers’ rights eroded.  Few people today work under union contracts.  Few people like to think of themselves as belonging to a “worker class” even though they work for hourly wages and expect to continue to do so indefinitely.  The traditional union-negotiated contract approach may no longer apply to the current workforce, but the current workforce still recognizes that intolerable working conditions continue, and they impact each worker’s life.  Progress has been accomplished in other ways when it became clear to the general public that a wrong needed to be righted.  One of the most effective practices is to push for legislation that would apply to classes of workers in general, not just those employed by a particular company or industry.  Progress has been made in setting higher minimum wages at local and state levels, for example.  However, that old fear that one could be fired arbitrarily persists.  But that also could be changing. 

Josh Eidelson updates us on recent legislation coming out of New York City in an article for Bloomberg Businessweek: Most Americans Can Be Fired for No Reason at Any Time, But a New Law in New York Could Change That.  He begins with the story of Melody Walker who after a year working at a Chipotle with no negative feedback was suddenly told she was fired.  Her boss told her she didn’t smile the way he wanted her to smile. 

“This is how the U.S. works under at-will employment, a legal standard that allows companies to fire people for almost any reason—and sometimes for no reason at all. Unlike in other wealthy countries, where bosses generally have to provide just cause for termination, at-will positions account for most U.S. jobs. This probably includes your job, dear reader. Most white-collar and professional workers aren’t any more legally protected from their bosses’ whims than Walker was. Google software engineers, Wells Fargo & Co. bankers, and Mayo Clinic surgeons work at will. So do humble Bloomberg reporters. The only Americans with a higher standard of protection tend to be limited to the C-suite, the public sector, the nation’s dwindling unionized workplaces, and—because of a complex, decades-old compromise—Montana.”

Walker couldn’t do anything about being fired, but she wasn’t exactly powerless. 

“In 2018, a few months after Chipotle fired her, Walker began working with union organizers and local officials on a groundbreaking two-law package that will make New York City a little more like Europe. The laws, which take effect on July 5, ban at-will employment among the city’s fast-food businesses, meaning that from now on, Chipotle and its peers will have to provide just cause to fire one of their roughly 70,000 workers in the five boroughs. The standard requires employers to show workers have engaged in misconduct or failed to satisfactorily perform their duties.” 

“Workers who haven’t done anything egregious will be guaranteed a system of warnings and consistent, proportionate disciplinary actions before they can be let go. To prevent retaliatory firings under the guise of broader layoffs, companies will have to privilege seniority while shrinking their payrolls and must offer laid-off workers their jobs back before hiring new people. Workers who believe they’ve been unfairly fired will be able to pursue arbitration, complain to the city’s Department of Consumer and Worker Protection, or file a lawsuit in state court, where a judge could award punitive damages.”

Restaurant owners certainly view this legislation as intrusive on their rights as business owners and will argue that economic efficiency will be diminished, and everyone will suffer.  But will anyone care? 

“The restaurant lobby’s similar challenges to the state’s fast-food minimum wage and other labor protections were defeated in court.”

“In recent polls, 47% of Americans said they had at some point been fired for a bad reason or for no reason. Few of those surveyed knew precisely how much discretion employers have—that they can reward workers for supporting particular politicians or fire workers over tweets they don’t like. Two-thirds of respondents said they’d support a just-cause policy, including a majority of Republicans.”

New York City’s law is not a unique initiative.

“The New York legislation resembles a law that Philadelphia passed in 2019 to protect its roughly 1,000 parking attendants. Similar, pan-industry efforts are gearing up in Seattle and at the state level in Illinois and New Jersey. Senator Bernie Sanders wants to make just cause the national standard…” 

As long as the Republican Party is determined to support bosses’ rights over workers’ rights, national just-cause legislation isn’t in the near future.  However, President Biden does have some options. 

“…the Biden administration, which in April mandated a minimum wage of $15 an hour for federal contractors and created a task force charged with ensuring the federal government acts as a ‘model employer’.”

Such executive actions can have far-reaching consequences.

“…progressive groups are pushing President Joe Biden to issue an executive order that would mandate just-cause protections for federal contractors. Millions of Americans work under federal contracts, and tens of millions—about one-fifth of the national labor pool—work for companies that have them.”

At one time, the higher wages earned by union workers had the effect of forcing other employers to compete for workers by pushing their own wages up closer to the union level.  In a situation where low-wage workers are in demand, which seems to be the case today, a standard for federal workers conceivably could grow to become more a national standard.

Eidelson provides an appropriate perspective.

“A national just-cause standard, or even a majority just-cause U.S. workforce, would usher in an historic shift of negotiating power away from bosses to employees. Strong enforcement would empower workers to organize with far less fear of reprisals and stands to make the employer-employee relationship feel a bit more like a contract and a bit less like feudal serfdom.”

We must recognize, applaud, and encourage progress whenever we find it.

You can learn a little about a lot of things or you can learn a lot about a very few things. Guess which is the most fun.