Philosophy 318: Professional Ethics
Theodore Gracyk

Outline of Werhane and Radin

Among non-government jobs, 60 % of American employees have " employment at will" (EAW) status. 

In the U.S., government employment involves a high standard of DUE PROCESS. Loss of job, or even change of job status, must be for "cause" -- the employer must be able to provide a good reason for it. EAW is the doctrine that employers do not have to employ any protective process in altering or terminating employment, and do not have to share their reasons with employees.

Some employees enter into explicit contracts about terms and conditions of employment, but this article does not go into detail about these cases. Courts have also upheld the presence of "implied" contracts in many cases.

Furthermore, certain types of "whistleblowers" are legally protected.

FOR THE MOST PART, however, private-sector American workers have no job protection. They are subject to ARBITRARY firings (meaning that there is no good reason, or no good reason that is shared with the employee).

What justifies EAW? Why isn't all employment a "contract" between employee and employer that obligates the employer to offer "cause?"

1. The Propriety Argument

The employer is buying the employee's time and labor. No one buying products is obligated to keep buying them unless they have an implicit or explicit contract to continue buying it. So, in the absence of a contract, employers can stop buying an employee's time and labor whenever they wish to do so.

RESPONSE: This argument assumes that we can distinguish the person from the person's labor and time. But we cannot, so it wrongly treats people as things to be bought and sold.

People are owed reasons for the things we do to their lives. So EAW is immoral. (Be careful. This does not mean employers cannot fire employees. It means they cannot do so with good reasons that they reveal.)

2. Equality Argument

EAW treats employers and employees as equals. With EAW, workers can walk away from a job without cause, so it is only fair that employers can terminate without cause.

To FORCE all employment into a contract is to deprive people of the right to enter into only those contracts they choose to accept. EAW leaves everyone free to enter into contracts when they mutually do so, but it forces no one to do so.

RESPONSE: The argument ignores a very real power difference between the parties. In practice, employees need good relationships with past employers in order to get any other employment, so employers have a coercive power over employees that has no counterpart in the other direction.

3. Implicit Contract Argument

Every case of EAW employment is an implicit contract. The employee is always hired with the understanding that the employer can terminate, etc., for any reason at any time, and the employee is free to leave at any time. Unless the two parties arrive at some other agreement, they've freely entered into a contract. 

GRACYK COMMENT: Here is another version: By accepting a job under EAW conditions, an employee freely waives her/his rights to due process.

RESPONSE: In practice, there are no obligations placed on employers by this "contract" beyond paying the worker for time worked. But if there are no other duties placed on the employer, there isn't any real contract here.

4. Efficiency Argument

EAW makes the workplace more productive. It allows employers to adjust rapidly to both internal and external situations. Due process slows everything down, and forces employers to pay for employees they do not want or do not need.

5. Overregulation Argument

Basically the same as the efficiency argument, but this version emphasizes that increased due process is bad because it makes the workplace less productive. Why? Because due process means greater regulation, more rules, etc., which intrude on the abilities of employers to make rapid changes when the need arises.

Maitland's version: If we get rid of EAW, it will increase costs. If some employers have EAW and some don't, then those that don't are more competitive, and can take a part of their savings and hire workers with more cash. Most workers prefer cash to benefits and job security. This gives the EAW workplace more profit than the non-EAW workplace, AND it be a workplace that workers prefer (because they get more choices from having more money). So EAW is better than non-EAW.

RESPONSE to 4 and 5:

Some people might prefer cash to job security. Some don't. We can't set up our standard by saying we know what most people prefer. Also, these arguments assume that the "cost" of due process is high. But there is no reason to think that the presence of due process is a serious burden on employers. Arguments 4 and 5 confuse due process with permanent job security. But that's a different issue.

SUMMARY: EAW protects arbitrariness in the treatment of employees. But employees are people, and deserve both respect and consistent treatment. So they are owed due process. So EAW is immoral.

GRACYK COMMENT: Basically, EAW is being rejected because the good produced is minimal while at the same time it is in conflict with elements of autonomy and justice.


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            Last updated July 27, 2008