- Interview by
- Melanie Kruvelis
In the United States, we often take for granted the immense power our employers have over us. Consider, for instance, the fact that your boss could fire you tomorrow for absolutely no reason. Didn’t get a hearing to defend yourself? What about an opportunity to come up with a plan to improve your job performance? Doesn’t matter — for most workers in the United States, none of that is required. Your boss isn’t even legally required to explain why you’ve been let go.
This near-total lack of protection from unfair firings has a name: the at-will employment doctrine. This doctrine doesn’t come from some old dusty law on the books that voters could mobilize around. Instead, the rule that governs the most important economic relationship of our lives comes from a nineteenth-century lawyer who lied.
The short version of the story: in his 1877 treatise called “Master and Servant,” lawyer Horace Wood gave four examples that prove that bosses legitimately can fire workers for no reason. Those examples, as it turns out, were made up. But no matter. Judges across the country used his reasoning, and to this day, the at-will doctrine remains precedent.
Earlier this month, New York City Council member and Democratic Socialists of America (DSA) member Tiffany Cabán introduced legislation that curbs this power bosses have over their workers. The Secure Jobs Act requires employers to actually have a reason for firing a worker — or “just cause” for their termination.
Cabán’s bill expands just-cause rights that New York City’s fast-food workers recently won to workers across all of the city’s sectors. Instead of firing employees on the spot, employers would be required to give advance notice of a worker’s termination and a written explanation of their firing. Workers who are wrongfully terminated — say, for asserting their health and safety rights in the workplace — would have an opportunity to be reinstated. The bill also limits employers’ ability to use technology to surveil workers on and off the clock, along with other worker protections.
Jacobin contributor Melanie Kruvelis spoke with William Herbert, distinguished lecturer at Hunter College and an expert on New York labor law, to discuss the significance of Cabán’s legislation and what its passage would mean for New York City’s workers.
Whether we’re talking about the National Labor Relations Act (NLRA) or local labor legislation, labor law in the United States is fundamentally about regulating the balance of power between bosses and workers. So, let’s start with the basics: What is at-will employment? And between bosses and workers, who has the power under at-will?
The at-will employment doctrine was developed in the nineteenth century, as part of the common-law legal system in the United States. Under the at-will doctrine, an employer can fire a worker for any reason or no reason, period. The doctrine grants employers a tremendous amount of power over workers and the ability to discharge or otherwise discipline them for any reason or no reason at all.
The at-will doctrine remains the default rule when it comes to employment, particularly in the private sector. One of the few checks on this power are laws prohibiting discrimination, which generally require proof that the employer was unlawfully motivated based on race, gender, or other specific protected classes.
There is obvious unfairness when a worker is fired for no reason, without any notice, any investigation, or any hearing. Under the at-will doctrine, employers have the right to proceed in that manner. The only legal recourse for the worker is to file a claim that the employer was motivated by an unlawful discriminatory or retaliatory reason. However, proving unlawful motivation is difficult, and being successful often requires hiring an experienced and knowledgeable employment lawyer. The time and cost required for that can be out of reach for many workers.
The power dynamic created by the at-will doctrine places real limits on the willingness of workers to assert workplace rights they have out of fear of being terminated. Think about during the pandemic: the fear of raising issues about health and safety, out of fear the employer can fire someone for raising those or other workplace issues. This fear exists despite the fact that the Occupational Safety and Health Act and other laws were enacted to protect worker health and safety.
Just-cause legislation aims to change this balance of power. Can you explain what just-cause protections are? Do these protections exist in other cities, states, or countries? How would passing this legislation change the balance of power for workers in New York City?
The just-cause doctrine is the antithesis of at-will employment. Simply put, it mandates the core value of due process in the workplace. Under just cause, before an employer can take adverse action against an employee, employees must be given notice, an opportunity to be heard, and a fair investigation into the nature of the alleged misconduct. It also mandates progressive discipline, meaning that a penalty should match the severity of the alleged misconduct, and take into account an employee’s work record.
In New York, as well as in the rest of the country, most workers in the private sector do not have just-cause protections against termination. Just cause creates a platform of job security by providing workers with protections against unfair types of adverse actions from employers. That sense of job security would also allow them to feel more comfortable and have less fear about asserting rights they already have from other federal and state laws. Extending the just-cause standard to more workplaces will increase the likelihood of workers asserting existing workplace protections and assisting government agencies in enforcing those protections.
The concept of just-cause discipline was first instituted in the late-nineteenth century. In 1897, President William McKinley issued a civil service regulation requiring just cause prior to a federal worker being disciplined. Since then, just cause has been codified in statutes and union contracts for public sector workers across the country. Only one state, Montana, applies just-cause for all workers statewide. Unionized workers in the private sector also have won just-cause provisions in collective bargaining agreements.
New York City recently enacted just-cause protections for the city’s fast-food workers. What did that legislation do? What’s been the impact of these expanded workplace protections for fast-food workers?
In December 2020, the New York City Council passed a law codifying a just-cause standard for the city’s fast-food workers. Under the law, a fast-food worker must be given a written explanation by the employer within five days identifying the specific reasons for the termination. In addition, the employer has to demonstrate that the employee knew or should have known of the work rule violated, that the employee received adequate training, and that progressive discipline was applied reasonably and equitably.
The fast-food worker bill also includes procedures for the resolution of just-cause disputes in arbitration, an administrative proceeding, or in litigation. The issue of arbitration is interesting, because on a national level, employers have been mandating arbitration over employee statutory claims, like Title VII of the Civil Rights Act and wage and hour disputes.
Under the New York City fast-food statute, on the other hand, the employer can be required to go to arbitration over questions of just-cause. This is a very major step forward in the labor law: not only mandating a just-cause standard but also obligating an employer to go to arbitration and having the burden of demonstrating it had just cause to discipline.
Overall, the existence of the just-cause provision provides fast-food workers with much greater security in their job position.
You’ve written about a “historical decline” in job-security protections across the United States that has whittled away rights in the workplace since the 1980s. Can you talk about the historical context for this legislation?
First of all, the United States is an outlier among industrialized countries concerning job security. Workers in other Western countries have far greater job-security protections than workers in the US under the at-will employment doctrine.
The growth in job insecurity in the United States emanates from a number of factors including the decline in union density over the decades, the “fissured workplace” as described by David Weil, and corporate insistence on short-term profits.
There’s also a lack of discussion in the press over questions of job security and just cause. Frequently, the only time you read or hear stories about just cause is in the sports section. This is because most disciplinary cases against professional athletes are resolved by arbitrators who must determine whether a particular team had just cause to discipline a particular player.
You’ve written about the “perfect storm” created by the rise in technological tools like social media and the decline of job-security protections in US labor law. How does social media and free speech relate to the fight for just-cause protections?
The lack of just-cause protections places a worker in a very vulnerable position for comments made on social media, particularly for those working in the private sector. It also means workers have to be far more careful in terms of what they do and say at work.
In the United States, citizens have a right to free speech under the First Amendment. But when it comes to the workplace, free speech rights of workers are much more constrained. The First Amendment does not place a check on what a private sector employer can do in response to worker speech. Even in the public sector, the courts balance the rights of public workers to speak out on issues of public concern against the interests of public employers to provide public services.
Social media posts can generate adverse action by an employer — even if the comments are not directly related to work. That underscores the importance of having a just-cause statute on the local, state, or federal level.
Cabán’s bill would also limit employers’ ability to use technology to surveil and track workers. How are employers in New York City currently able to track workers? What does this mean for workers’ privacy, and how does this bill propose changing that?
During the last forty years of deregulation and neoliberalism, there has been tremendous growth in the development and use of computer-based technologies in the workplace that enable employers to engage in surveillance — whether that’s surveilling workers’ online activities or their physical locations. While we do have some legislation that prohibits intercepting and monitoring electronic communications, such as the Electronic Communications Protection Act of 1986, that statute contains a very large exception: it allows employers to surveil and monitor employees’ emails, as long as the employer communicates that policy to their workers.
Then, there’s the question of technologies that enable the tracking of worker location inside and outside the workplace. In the past two decades, technological products have been developed that make it easier for employers to track workers’ movements. Biometric and radio-frequency identification (RFID) tools are used to monitor and track worker movement into and around workplaces. In trucking and delivery jobs, employers are using GPS technology to monitor worker movement throughout the day. They can track where workers go during their breaks — for instance, if a worker meets colleagues at a coffee shop to talk about issues in the workplace.
The issues are not new, but the sophistication and ubiquity of the technologies are. Some of the more extreme forms of location tracking are being done by Amazon, which tracks warehouse workers by the minute with its “time off task” system, surveils drivers electronically and visually using its Driveri system, and uses technology to map out union activities.
While groups like the American Association of Geographers have published a framework for regulating locational tracking in the workplace and elsewhere, there has been very little done on the federal, state, or local level to enact restrictions on the use of locational technologies by employers. California has enacted meaningful legislation on data collection and use, but it mostly focuses on protections for consumers, not for workers. So, it’s quite significant that Councilmember Cabán’s bill is seeking to regulate not just electronic surveillance by employers but also locational surveillance.
This proposed legislation is coming at a time when New York City mayor Eric Adams is cutting thousands of city jobs and weakening the city’s ability to enforce legislation. What should workers and labor advocates keep in mind about enforcement capacity when fighting to expand these workplace rights?
There has been recent coverage of resource challenges at the National Labor Relations Board (NLRB), where Congress has been unwilling to fund sufficient agency staffing. The same issue exists at municipal and state agencies, where there is not enough staffing to timely investigate and adjudicate complaints about wage and hour violations, employment discrimination, and other workplace protections.
We need to recognize the importance of making sure that local and state agencies responsible for enforcing labor and employment laws are fully funded so that they are able to effectuate the rights granted under the law. Expanding labor rights is critically important, especially now, but it’s equally important that we make sure that local and state budgets allocate sufficient resources to make sure the government is capable of enforcing those crucial workplace rights.