The debate over at-will employment has been raging for years,14 but it is not the primary purpose of this Article to rehash the debate over the value of employment at-will. Instead of taking sides, I find fault with both at-will employment and the just cause standard. Accordingly, the main purpose of this Article is to provide the perfect compromise between at-will employment and the just cause standard.
Under a proposed statute (which I have named the "Employment Termination Equity Act (ETEA)"), employers would be free to terminate without the burden of proving just cause, allowing them to get rid of unproductive or poorly performing employees with limited risk of litigation. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions are egregious enough to prohibit, my goal was two-fold: (1) to prohibit termination decisions that have previously been unremedied despite the morass of exceptions to at-will employment and (2) to provide some overlap protection with current statutes by using a procedural process that will be more easily accessible by employees. Yet, in the true spirit of compromise, the ETEA will provide fewer types of remedies than employment discrimination statutes and will force plaintiffs to choose between suit under the ETEA and other statutory remedies.
Part II of this Article will give the reader a brief overview of the state of the law, including the current status of the at-will employment rule and the many exceptions that have eroded the employment at-will presumption. Part III will discuss why both the at-will presumption and the just cause standard are problematic and why a compromise between the two is necessary. Part IV will detail the substantive and procedural provisions in my proposed statutory solution. I will explain which terminations should be prohibited and why. More importantly, I will reveal the procedural nuances in the statute that help to make it a true compromise statute. Finally, Part V will address the anticipated challenges to this proposal.
As a compromise proposal, either no one wins or everyone wins, depending on one's level of optimism. Many believe that the measure of a good compromise is when it leaves everyone unhappy. But my goal is to convince the reader to view this proposal in an optimistic light -- as a massive improvement over the status quo and hopefully as the perfect compromise.
Nicole B. Porter,
The Perfect Compromise: Bridging the Gap Between At-Will Employment and Just Cause,
87 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol87/iss1/2