The Principle of Employment at Will - Assignment Example

1. What is the principle of employment at will Why do you think the law has upheld it so long What are the two aspects of due process What is the current legal situation with respect to due process at work The principle of employment at will is a common law doctrine that states that an employer has the right to hire, fire, promote, or demote an employee, for whatever reason and whenever the employer wishes. When employees are not specifically covered by union agreement, legal statute, public policy or contract, an employer may legally take employment action on an employee. Unlike public sector employees, most workers in the private sector are "at will" employees who have no right to appeal employment decisions. However, at the same time, "at will" employees enjoy rights parallel to employer prerogatives. They may also quit their jobs for any reason whatsoever, including no reason at all, without giving any notice to their employer. The law has upheld employment at will because it promotes business productivity and efficiency. Besides, there are already existing laws, such as those covering freedom to contract, union agreement, public policy, and the resort to courts, which can be used by employees to address their appeal regarding any violation of rights. Governments are naturally supportive of the growth and prosperity of private business because they contribute to the economy and the general welfare of the citizenry. Due process is a means by which a person can appeal a decision in order to get an explanation of that action and an opportunity to argue against it. The two aspects of due process are procedural and substantive. Procedural due process is the right to a hearing, trial, grievance procedure, or appeal when a decision is made concerning one's self. Substantive due process is the demand for rationality and fairness for good reason for decisions. Currently, the legal situation with respect to due process at work is only available to public-sector employees who have guaranteed rights, including due process, and are protected from demotion, transfer or firing without cause. Since no form of due process is required prior to employment decisions for private-sector employees, their only right to demand an appeal is through the court system. Moreover, unless there is a public policy violation, the law has traditionally protected employers from employee retaliation during court actions. 2. Examine and critically assess each of the five justifications for EAW, as stated on page 308. Which of these arguments is the strongest How persuasive are Werhane and Radin's rejoinders to them Are there arguments to EAW that the authors have overlooked or not answered adequately There are five justifications for EAW. First is that the proprietary rights of employers guarantee that they may employ or dismiss whomever and whenever they wish. Employees provide a resource, in this case, manpower resources, much like other company resources, which have been deemed necessary by the employer to effectively conduct the business. Therefore, when the employer feels that an employee resource is no longer required, the employee may be dismissed. Second, EAW defends employer and employee rights equally, in particular, the right to freedom of contract, because an employee voluntarily contracts to be hired and can quit at any time. The employer's right to hire and fire is balanced by the employee's right to accept or reject employment. If any restriction will be imposed on the employer regarding EAW, a similar restriction should be imposed on the employee. If an employee will be protected from being fired, the employer must be similarly protected from having any employee quit employment. Limiting EAW practices or requiring due process would both be coercive Third, in choosing to take a job, an employee voluntarily commits himself/herself to certain responsibilities and company loyalty, including the knowledge that he/she is an "at will" employee. It is of the employee's free will that he/she accepts an employment contract which defines terms and conditions of employment that are all acceptable to the employee, including the fact of it being an "at will" type of employment. If there was anything unacceptable to the employee, then he/or she is free to reject the employment. Fourth, extending due process rights in the workplace often interferes with the efficiency and productivity of the business organization. EAW is practical because it helps ensure productivity and efficiency in organizations. Without EAW, unproductive workers, those who are no longer needed or who are troublemakers will be allowed to keep their jobs. And even if employers were allowed to dismiss employees, the requirement of due process would be time consuming, costly, distracting to other employees and would likely affect general productivity and the morale of other employees. Fifth, legislation and/or regulation of employment relationships further undermine and already over-regulated economy. Legislation and regulation usually result in time-consuming bureaucratic procedures which involve costs. Legislation and regulation of employment relationships would add another burden to private business which may hamper efficiency and productivity. The government would more likely institute actions encouraging the growth and prosperity of businesses as these are good for the economy and the general welfare of the country and its citizens. The strongest of these arguments is the fifth argument. Legislation and/or regulation are better done without because of the costs involved in terms of compliance to laws as well as in ensuring and monitoring compliance. If there are other means of protecting rights for employees, such as those provided in already existing laws, such as the contract law, public policy, and resorting to courts, then it would be better that these are used rather than creating new laws. Additionally, the increasing practice of companies for instituting grievance procedures is an indication that even in the absence of legislation, businesses will naturally formulate procedures to address problems related to employment actions. On the first argument, Werhane and Radin rejoin that employees are human beings and should be treated like pieces of property at the disposal of the employer. As a human being, an employee deserves to be treated with respect, which should include the right to know the reasons why an employment action is being taken against him/her. The authors do not preclude the employer's right to take employment action, but merely proposes that reasons for the action should be made known to the employee before the action is taken. On the second argument, the authors rejoin that arbitrary treatment of employees provides employers with prerogatives which are not available to employees, and which may affect a fired employee's future prospects for employment since the employee has no avenue for defense or appeal. Arbitrary treatment, according to the authors, violate the spirit of EAW. On the third argument, the authors rejoin that employment contracts are one-sided and not mutually obligatory between the employer and employee. The employer contracts to reward or compensate employee performance with an underlying expectation of loyalty, trust and respect. The employee contracts to accept the employment but there is no obligation on the part of the employer to treat the employee with loyalty, trust and respect. For the contract to be free and non-coercive, the authors counter that contracts should be equally obligatory and mutually restrictive. On the fourth argument, the authors rejoin that the notion that due process is costly or reduces efficiency is undocumented even by companies with grievance procedures, which therefore, defeats the argument. Moreover, unlike decisions on employment action, other managerial decisions require due process, either procedural or substantive, and both these aspects do not demand benevolence, lifetime employment nor prevent dismissals. The authors have no rejoinder for the fifth argument. Werhane and Radin have overlooked the fifth argument totally but have addressed the other arguments adequately. 3. The authors contend that due process is both "consistent with, and a moral requirement of, EAW." Assess both aspects of this assertion. Werhane and Radin contend that due process is consistent with EAW. According to them procedural due process is part of the obligations of freedom of contract. This doctrine holds that parties capable of entering into a contract and giving their consent to its terms should not be hampered by the state, unless due to protection of health, welfare, and morals of the community or to prevent criminal activities (Hoffer, 2008). Indeed, the authors contention is true that due process is consistent with EAW, which is based on freedom of contract. This may well be the reason for the increasing voluntary institution of companies of grievance procedures to provide a means for due process in their organizations, as well as provide the employer with a justification for the employment action being taken. The authors also contend that due process is a moral requirement of EAW. In this case, they say that substantive due process conforms with the ideal of managerial rationality which is implied by the consistent application of the common law principle of EAW. This contention is also true. Employers would have the moral obligation to inform and even explain the reasons for employment actions it takes, not only because employees are human beings who deserve to know, but also to keep the peace within the organization. 4. How is the public/private distinction relevant to the debate over EAW and due process Why do the authors believe that the distinction is blurred Do you agree Should constitutional rights be extended to private-sector employees Due process is guaranteed for public-sector employees. According to Supreme Court decisions, a state worker who is a permanent employee has a property interest in his employment. The employee is entitled to his/her job because his/her productivity contributes to his/her place of employment. He/she is therefore entitled to due process before being terminated, especially if the termination would prevent him/her from getting employment in another government office. Private-sector employees do have similar rights. The distinction between public and private stems from traditional Western thinking which separates the public sphere and the private sphere of a person's life. The public sphere covers the part bound by government regulation while the private sphere covers the part outside these bounds. This distinction is relevant to the debate over EAW and due process because of the conflicting arguments regarding whether employment in private business is part of an employee's private life or public life. If private employment is within the public sphere, then there should regulation pertaining to EAW and due process. Otherwise, if private employment is part of the private sphere, then there should be no government intrusion into private property. The authors believe that the distinction is blurred because it is unclear where private property and ownership end and where public property and ownership begin. There are also many variations in the status of businesses such as there are privately-owned corporations, government-owned or controlled corporations, regulated public utilities, publicly held and privately held corporations. The foregoing, as well as government actions contrary to due process in government corporations, and Supreme Court rulings interfering with private property have blurred the distinction between public and private. I agree that indeed, the distinction is blurred and eroded. I believe that the right to due process must be extended to private-sector employees. They must have the right to know why employment action is being taken on them before it is taken, whether this be promotion or demotion, transfer or dismissal. But the right of the employee to due process should not remove the right of the employer to take employment action, whenever and for whatever reason. I believe due process will determine if the employer is about to take an irresponsible arbitrary action which may be the cause for legal action of an employee. Either way, due process will provide both employer and employee positive inputs for future actions.. References Hoffer, P. (2008). Freedom of contract. Retrieved 21 November 2008, from http://www.answers.com/topic/freedom-of-contract Werhane, P.H. & Radin, T.J. (1995). Employment at will and due process. In Ethical issues in business: A philosophical approach, 5th ed. 1996 (eds. Donaldson & Werhane). Prentice Hall. Read More