“On Limiting the Abusive Exercise of Employer Power”

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of at-will employment — which allows an employer to terminate an employee for any reason or no reason at all — were no longer applicable: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.

Fast forward

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.

Workplace bullying

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.)

3 responses

  1. I hadn’t realized you wrote the bill; what a contribution to have made to society! Granted, so many people contribute, even though measuring the results of our efforts is generally impossible. Once in a while, though, we can, and the insights gleaned can be astonishing. You might want to look at “From a single hashtag, a protest circled the world”, Monday’s feature by Ben Berkowitz, an Amsterdam-based Reuters correspondent. Ben charts the formative communiques that grew into the “Occupy” movement: http://www.reuters.com/article/2011/10/17/us-wallstreet-protests-social-idUSTRE79G6E420111017?feedType=RSS&feedName=everything&virtualBrandChannel=11563

  2. This, “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.” is one of the main reasons I believe “employment at will” is the main vehicle that fuels workplace discrimination.

    Many employers understand or count on two things;

    1) I can fire an employee for any reason or no reason (while hiding discrimination in the process)

    2) Over 90 percent of job applicants and employees have little or no knowledge of even the most Basic Employee Rights much less how to protect them.

    J.D. Eastman of “Defending Your Employee Rights” says, “Without Knowing the Law and What Your Rights Are, there is no Law and You Have No Rights”.

    Correct me if I’m wrong but isn’t the U.S. the only “western industrialized” nation that desperately and doggedly clings to “At Will” employment? Hmmmm…..I wonder why? That of course is a rhetorical question.

    The day “employment at will” is abolished I believe there will be a dramatic decrease in employee rights abuse across the board.

  3. I think we’re long over due for this subject being discussed more in the media. Abusive employers need to be exposed and “At Will” needs to be defined and then fixed so that it is, at the very least, reasonable. “At Will” promotes and fully supports and even encourages bullying, a hostile work environment, discrimination, fear mongering, manipulation, and intimidation. It’s wrong and it needs to stop. We need reasonable balance and protection. With AT WILL it’s the unleashing of all regulation and human rights in the work place. I highly recommend a campaign for this subject to be more transparent and openly discussed. There needs to be some sort of a media blitz done on this and industry’s in the USA who are out of control need to be exposed. Even if we can’t get mass media involved there are radio and Facebook blogs that most certainly will speak up.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: