“Termination at Will,” by Andrew J. Schatkin

It is the general rule that most employment relationships in the United States, with the exception of union protection of civil service workers, is “at will.” This means that an employee, certainly in the private sector, can be discharged for any reason at all as long as the reason for the discharge is non-discriminatory.

The basic rule in New York State is that there is adherence to the traditional “Common Law Rule” in this respect, which holds that employment for an indefinite period of time is “at will” and may be freely terminated by either party at any time with or without cause or notice. The exception to this rule is an employee who belongs to a union or who is a civil service employee or who works under some sort of employment contract.

There are two additional exceptions to this rule, first of which is the situation when the firing violates public policy such as a discharge for exposing an employer’s illegal activities. This is known as the “Public Policy Exception.” The other exception to the “at will” rule occurs when an employer fails to act in accordance with the policies set forth in the employee handbook. The leading case articulating the “at will” rule in the State of New York is Murphy v. American Home Products. In that case, the New York State Court of Appeals stated in no uncertain terms that the courts of the State of New York do not recognize the tort of an abusive or wrongful discharge of an at will employee and that to do so would alter the long-settled rule that where an employment is for an indefinite term it is presumed to be a hiring at will which can and will be freely terminated at any time for any reason, or even for no reason at all. After a long discussion, the court determined to adhere to the traditional “at will” rule stating that the tort of wrongful discharge should await legislative action. Many cases have followed this rule.

In this essay, I question the wisdom and validity of the at will employment rule. The reason for the rule is that the private sector must have latitude to discharge employees who are either unsatisfactory in their work or who present personal behavioral difficulties. The problem is that, as we all know, a job is necessary for the working person to support himself and his family if he has one. If employees are continually discharged perhaps on a personal basis by reason of a like or dislike by the employer, the result is that the employee is doomed not to have any quality or secure employment or benefits. The at will employment rule has its good side in that the employers possess at the ability to establish work and work force positions. On the other hand, the employee is in a powerless position. If he displeases the employer, or even speaks or looks at the employer in a way that causes the employer difficulty, the employee may be discharged.

In the United States, the system is that at the present time jobs are not permanent and that when employees are discharged for no reason at all or for the wrong reason, they are left in a revolving door situation where they must go from job to job. This may be beneficial to the employer since he can discharge on a regular basis employees who are perhaps older and replace them with younger workers at a cheaper and lower wage scale and salary.

I argue now against the present “at will” employment rule. A society in which no one keeps his job or even can get or has or can obtain a job with benefits and security makes for an intolerable system. The workers having no rights are in constant fear of losing their jobs. The result will be that families will not be supported nor homes maintained. Without job security and pensions the, worker is living on an economic precipice.

Our present system is unsatisfactory. I say that the government should provide some sort of basis for job security and provide that workers can only be fired for provable cause and just cause and that some sort of legal mechanism be established to enforce this.

There are good things about the “at will” rule and there are good reasons for it. To allow private businesses to succeed and make a profit, they must have the right to fire. On the other hand, where no one keeps a job and jobs are lost continually, the situation is ultimately stressful and the result is that although there may be temporary profits for the private sector in this system, eventually it will bring about a disastrous situation where the working class population will not be able to survive, causing the destruction of the entire system.

I suggest legal protection and a rule that jobs can be secured and kept and that discharge be only for just and provable cause, not based on personality or differences on a personal basis. I suggest that there be specialized tribunals to handle employment disputes regulated by law.

In short, a measure of government intervention, if not legislation, will be needed to guarantee some sort of equal balance of power between employer and employee in the workplace assuring that the employer can conduct a profitable business and that the employees will have some job rights and protections other than are allowed at the present time.

See Murphy v. American Home Products 58, NY 2d 293, 448 NAE 2d 86, 461 NYSupp. 2d 383 (2001).