For legal geeks like me, one of the starting places for understanding the modern state of workers’ rights is a classic 1967 Columbia Law Review article by University of Kansas law professor Lawrence Blades, “Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power.” He opened his article with these words:
It is a widely accepted proposition that large corporations now pose a threat to individual freedom comparable to that which would be posed if governmental power were unchecked. The proposition need not, however, be limited to the mammoth business corporation, for the freedom of the individual is threatened whenever he becomes dependent upon a private entity possessing greater power than himself. Foremost among the relationships of which this generality is true is that of employer and employee.
Blades noted that the underlying assumptions supporting the dominant rule of at-will employment — which allows an employer to terminate an employee for any reason or no reason at all — were no longer applicable:
Such a philosophy of the employer’s dominion over his employee may have fit the rustic simplicity of the days when the farmer or small entrepreneur, who may or may not have employed others, was the epitome of American individualism. But the philosophy is incompatible with these days of large, impersonal, corporate employers; it does not comport with the need to preserve individual freedom in today’s job-oriented, industrial society.
He would go on to argue that at-will employment should be supplanted by legal rights that protect workers against wrongful discharge.
Blades’s article is considered a seminal commentary on the increasingly lopsided allocation of power in the modern employment relationship. Although he may not have fully anticipated the growth of the service sector and the non-profit sector and the significance of employment discrimination law, his success is in how he foresaw the expansion of private economic power and shaped the thinking of employment law scholars and other legal stakeholders.
Although courts and legislatures have fashioned myriad exceptions to at-will employment since then, most American workers remain employed on this basis and generally can be fired for any reason that doesn’t violate employment discrimination laws, a variety of whistleblower and anti-retaliation provisions, and a handful of other protections.
Among the more common forms of employee mistreatment, workplace bullying remains the most frequently neglected by American employment law. And because supervisors and bosses are the most frequent perpetrators of bullying behaviors (at least in the U.S.), Blades’s concerns about the imbalance of power in the American workforce are especially applicable.
When a worker is bullied by a boss, all too often the abuse falls outside of existing worker protections. However, if an employee complains about workplace bullying or attempts to stand up to an abusive supervisor, the rule of at-will employment permits the employer to discharge her in summary fashion.
This is why I wrote the Healthy Workplace Bill, which gives severely bullied workers a legal claim for damages, creates legal incentives for employers to act preventively and responsively toward bullying behaviors, and protect those who report or file a legal action in response to workplace bullying. It’s also why I wholeheartedly support Freedom from Workplace Bullies Week (Oct. 16-22), which serves to educate the public about workplace bullying and what we can do to stop it.
Full citation: Lawrence E. Blades, “Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power,” 67 Columbia Law Review 1404 (1967). (Although I am unable to provide copies to readers, the article is available via subscription databases such as JSTOR, Westlaw, and Lexis/Nexis.)