[10.4.] Employment at Will vs. Due Process.
Recall the third sense of the phrase “right to work.” In this sense, it refers to a right that a person has, once she is hired, to hold her job with some degree of security and not to be fired without good cause.
We will now ask: do people have this other sort of moral right to work?
The two basic positions in this debate are called employment-at-will, according to which there is no such right to work, and due process, according to which there is such a right to work.
[10.4.1.] The “Employment at Will” Doctrine.
employment-at-will [EAW] (df.): “when an explicit agreement of contractually binding terms of employment is absent, the employment relationship exists only so long as both parties will it to continue. That is, either party is free to end the relationship at his or her will. Moreover, the relationship may be terminated at any time and for any reason.”
United States employment law has traditionally been governed by this doctrine.
One of the most widely quoted expressions of this doctrine comes from a case heard before the Tennessee Supreme Court: Payne v. Western & Atlantic R.R. Co. (1884). The majority opinion in the case reads in part:
Railroad corporations have in this matter the same right enjoyed by manufacturers, merchants, lawyers and farmers. All may dismiss their employees at will, be they many or few, for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong. (quoted in part at 120 / 129; emphasis added)
Georgia is an EAW state: “Georgia recognizes the doctrine of employment at will. Employment at will means that in the absence of a written contract of employment for a defined duration, an employer can terminate an employee for good cause, bad cause or no cause at all, so long as it is not an illegal cause.”
As that last clause indicates, the doctrine of EAW is not absolute. If it were absolute—if employers had the legal right, in the absence of a binding contract, to fire any employee for any reason, even for immoral reasons, “then the concept of employee rights [would be], at least in the legal sense, meaningless.” (120 / 129) For example, if the legal doctrine of EAW were absolute, then an employer could fire a (non-contracted) employee for refusing to be sexually harassed, or refusing to work for less than the minimum wage, or for any other reason. Absolute EAW is incompatible with employee rights secured by law, e.g., the right not to be sexually harassed or to be paid a minimum wage.
In the last century, legislatures and courts have introduced a series of exceptions to the legal doctrine of EAW, by making it illegal for employers to fire employees for any of the following reasons:
· supporting unionization (the Wagner Act of 1935)
· “race, color, religion, sex or national origin” (Title VII of the Civil Rights Act of 1964). [The Act allows for exceptions when a person’s race, etc. is an actual condition for being able to perform a specific job, e.g., it is legal for a company that makes women’s clothing to hire only women to model their products, or for a movie studio producing a biopic of Johnny Cash to hire only a white man to play that role.]
· requesting a safety inspection of one’s workplace (the Occupational Safety and Health Act of 1970)
· having a physical disability that does not impair your ability to do your job (the Americans with Disabilities Act of 1990)
Despite these restrictions on EAW, the idea remains in the legal background, in that “[t]he legal burden of proof rests with employees who believe that they have been [illegally] fired.” (121 / 130) Under EAW, an employee who has been fired and wishes to challenge her dismissal must demonstrate that she has been let go for an illegal reason.
So, if you are working under an EAW agreement, you can be dismissed for any reason, so long as it is not an illegal reason.
[10.4.2.] Due Process (General).
A very different way of thinking about the right to keep one’s job comes under the heading “due process.” Before we see what that idea is when applied to employment in particular, we need to examine what due process is, in general.
DesJardins describes the general idea of due process as follows:
due process (general df.): “limitations that offer protection against arbitrary uses of authority … The philosophical idea that underlies this legal concept is that even legitimate authority cannot be used in just any manner.” (122 / 130)
Due process for individual citizens is secured in the second clause of U.S. Constitution’s 14th amendment (1868):
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (emphasis added)
(The due process clause of this amendment has been cited in Supreme Court rulings, including Roe v. Wade, in order to protect the rights guaranteed in the Bill of Rights against infringement by the individual states.)
[10.4.3.] Due Process in the Workplace.
Applied within the workplace, due process reverses EAW...
Due process with regard to employment means that an employer can fire an employee only for just cause, and the burden of proof lies with the employer.
Due process can be secured in the workplace with (a) an explicit statement of just cause conditions, and (b) due process procedures:
just cause conditions (df.): conditions on which it would be morally just for an employer to fire an employee, e.g., “incompetent job performance, intoxication, inordinate absenteeism, theft, fraud, and economic necessity” (122 / 131).
due process procedures (df.): procedures an employer must take before firing an employee, designed to help ensure against unjust dismissal. DesJardins lists the following steps that might be included in a due process procedure (122 / 131):
· prior warning
· written performance standards
· probationary periods
· appeals processes
· opportunities to respond to allegations
Many employers in Georgia use due process procedures, even though Georgia is an EAW state.
[10.4.4.] An Argument For Due Process.
Why think that employees have a right to due process? DesJardins describes a Kantian argument based on (a) the distinction between power and authority and (b) “the fundamental ethical concepts of respect and fairness” (123):
Power might be defined simply as the ability to impose one’s will on another. Authority exists when that power is justified or legitimate. … Imposing one’s will on another without justification is ethically wrong since it is to treat that other as a mere means to one’s own ends. It violates the autonomy of that individual, and it denies him or her the respect that each is due as an autonomous person. Institutions, such as the criminal justice system or the workplace, that allow people to impose their will upon others without justification are fundamentally unfair and unjust. Due process demands nothing more than that the exercise of power be justified. ... Without due process in the workplace, society is sanctioning an institution that allows individuals to exercise the power they have over others without restraint. (123 / 131)
[10.4.5.] Arguments Against Due Process, and Responses.
DesJardins also describes four arguments against the doctrine of due process, arguments from freedom, fairness, property rights, and efficiency.
1. freedom: “…due process involves an illegitimate restriction on the freedom of individuals to establish the conditions of their own work. … Employees who desire due process protection should be free to bargain for it and should be willing to give up something, presumably wages, in return. Employees who prefer higher wages should be free to forgo the job security that due process provides. A competitive labor market will eventually find an equilibrium point where each employee gets as much job security and wages as he or she decides.” (123 / 132, emphasis added)
2. fairness: Non-contracted employees must be allowed to quit at any time and for any reason; restricting their right to do so would be tantamount to slavery. But “since employees are given the freedom to quit without just cause, fairness demands that employers have the equal freedom to fire without just cause.” (124 / 132)
Patricia Werhane has defended the idea of due process against the arguments from freedom and fairness by pointing out that in general, employees have much less power than employers. In particular, being fired hurts an employee more than the employer is harmed when an employee quits, because
· it is typically harder for the employee to find a new job than it is for the employer to find a new employee; and
· having been fired can hurt the employee’s chances of finding new work, while an employer’s reputation is rarely harmed by its having fired employees.
She uses this idea against the freedom and fairness arguments as follows:
Against the freedom argument: this imbalance of power puts the employee at an unfair disadvantage when it comes to bargaining for favorable employment conditions, so it is unjust for the employee to have to bargain for due process conditions.
Against the fairness argument: this inequality of power makes it fair for the employer to be prohibited from firing the employee at will while the employee is free to leave whenever she wants.
3. property rights: “due process is an illegitimate restriction on the property rights of business owners.” (123 / 132) The owner of a company owns the salary she pays her employees; that money is her property to give and take as she pleases. So restrictions on her ability to take a job back once it has been given constitute an unjustified restriction on her property rights.
Werhane has two responses to the argument (as described by DesJardins):
a. “…property rights in the workplace do not include ownership of employees. While employers have rights over material possessions, they do not have similar rights over employees. Humans are not resources that one can dispose of at will.” (124 / 132, emphasis added) [This is an odd response. On a charitable interpretation of the property rights argument, the property in question is not the employee herself, but the salary that the employer would have to pay the employee were her employment continued.]
b. “…property rights are not absolute and can be legitimately restricted by other ethical considerations. Due process is the simple requirement that due consideration be given to such factors by articulating the ethical restrictions on the use of one’s property.” (124 / 132)
4. efficiency: “Due process requirements will interfere with the efficient functioning of business, will prevent both employers and employees from getting what they most prefer, and will only function to protect unqualified and unproductive workers.” (124 / 132-33)
DesJardins responds to this argument in three ways:
a. An attempt to criticize due process (and thus to defend EAW) on the basis of efficiency is ultimately a utilitarian argument. But there are some things more morally important than utility, viz. (at least some) personal rights, like the “rights to autonomy, respect, and fairness.” (124 / 133) If we were to view utility (understood in terms of happiness, well-being, or preference-satisfaction) as more important than these rights, then we would have to say that slavery and child labor are morally permissible if it turns out that they increase utility. But obviously we don’t want to accept that conclusion; so (at least some) personal rights trump utility and efficiency. [So DesJardins concludes that a deontological approach to the EAW vs. Due Process debate is superior to a utilitarian approach.]
b. It is false that well-formed due process requirements will lower efficiency, since “lack of productivity and qualifications are exactly the types of reasons that would provide a just cause for dismissing an employee.” (124 / 133) [of the three, this seems the strongest to me]
c. Due process requirements might even increase efficiency: “[T]here is significant evidence that workers who are provided with job security and due process can be more productive than those without. Decent and ethical treatment can be a more effective management tool than threats and control.” (125-26 / 133)
If (b) and (c) are accurate, then due process in the workplace is justified on a utilitarian view and not just on a deontological approach.
Stopping point for Friday November 19. For next time, read DesJardins pp.132-37 (we are skipping sections 6.5 and 6.6).
 Joseph DesJardins and John MacCall, Contemporary Issues in Business Ethics, 5th ed., Wadsworth, 2005, p.114, emphasis added.
 “What Georgia Employers Need to Know,” Georgia Secretary of State < http://sos.georgia.gov/firststop/georgia_employers.htm >, retrieved November 18, 2010; emphasis added. Nearly all states are EAW states, in that they recognize the legal right of an employer to dismiss a (non-contracted) employee even in the absence of good cause, so long as the reason for doing so is not illegal. The sole exception is Montana, which recognizes a legal EAW doctrine only for employees working during a probationary period. Once that period has ended, an employee cannot be fired in the absence of a good cause. (Donald C. Robinson, “The First Decade of Judicial Interpretation of the Montana Wrongful Discharge from Employment Act (WDEA),” 57 Montana Law Review, 1996.) Still, Georgia recognizes fewer exceptions to EAW than many other states. In particular, Georgia does not recognize the three major exceptions to EAW: public policy exceptions, implied contract exceptions, and covenant of good faith and fair dealings exceptions. Only Florida, Louisiana and Rhode Island are like Georgia in this regard. (Charles J. Muhl, “The Employment-at-Will Doctrine: Three Major Exceptions,” Monthly Labor Review, January 2001, 3-11, URL = < http://www.bls.gov/opub/mlr/2001/01/art1full.pdf >, retrieved November 18, 2010)
 DesJardins and MacCall, p.115.
 Civil Rights Act of 1964, FindUSLaw.com, URL = < http://finduslaw.com/civil_rights_act_of_1964_cra_title_vii_equal_employment_opportunities_42_us_code_chapter_21. >, retrieved November 18, 2010. The Civil Rights Act of 1964 defines “religion” as follows:
(j) The term “religion”‘ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.
… it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
Courts have recognized three types of prohibited religious discrimination:
1. disparate treatment: simple refusal to hire or promote someone because of religion; not all such refusal would actually violate the relevant laws (e.g., a synagogue could refuse to hire a gentile as a rabbi)
2. disparate impact: a policy that does not mention religion but that still has a different impact on some workers because of their religion, e.g., a rule against women wearing headscarves
3. hostile work environment: employer allows an environment that is hostile to people who practice a given religion; a single verbal argument probably would not count, but continuing harassment or severe threats would.
 “OSH Act of 1970,” United States Department of Labor, URL = < http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=OSHACT >, retrieved November 18, 2010.
 DesJardins (105) describes three other exceptions to EAW stemming from court rulings are discussed at DesJardins 105: (a) public policy, (b) implied contract, and (c) “implied covenant of good faith.”
 http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html, retrieved November 18, 2010.
 Werhane is the Wicklander Chair of Business Ethics in the Department of Philosophy and Executive Director of the Institute for Business and Professional Ethics at DePaul University (http://las.depaul.edu/philosophy/People/Faculty/Patricia_Werhane.asp). This material is from her article “Individual Rights in Business,” in Just Business: New Essays in Business Ethics, ed. Tom Regan (New York: Random House, 1984), pp.107-126.
This page last updated 11/19/2010.
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