Business Law Assignment 3

Employment

-

at

-

Will in the United States

What often surprises Europeans who visit U.S. workplaces or study U.S. employment and labor law is the

fact that the worker in the U.S.

—

compared to France, Germany, and Italy

—

lacks many of the protections

from layoffs and firings that can be found in Weste

rn Europe. Indeed, the U.S. concept of employment

-

at

-

will, whereby either an employee or employer can terminate the working relationship at any time for

virtually any reason, is unique to U.S. employment law, and has deep and lasting ramifications upon how

the employer

-

employee relationship evolves and develops.

The concept of employment

-

at

-

will emerged as a defense against involuntary servitude

—

in other words,

preventing someone from being forced to work against his or her will. This gives U.S. workers max

imum

flexibility to choose their workplaces, chart their career paths, and pursue better and more lucrative job

opportunities when they arise. However, employment

-

at

-

will also carries severe downsides for the

employee. There are few, if any, protections fo

r workers from being let go during an economic downturn,

posing significant risks for workers in economic sectors that are extraordinarily cyclical, such as

manufacturing. In addition, the absence of any incentive for employers to keep workers during econo

mic

downturns has probably led to an increased trend toward outsourcing, downsizing, and streamlining

operations. Finally, the employment

-

at

-

will relationship also leaves the employer

-

employee relationship in a

constant state of uncertainty. An employee hi

red today may leave next year, next month, or next week.

Because of that, it is difficult for employers to predictably manage and forecast their workforce.

Supporters argue that U.S. companies are more flexible and nimble than their European counterparts

b

ecause they can hire and fire depending upon cyclical economic cycles. An argument can be made that the

symmetry of employment

-

at

-

will, which grants equal rights to employers and employees to terminate the

working relationship, presents an equilibrium of p

ower that may not exist in Europe, where employees may

hold stronger rights than corporations. However you stand on this issue, one thing is certain; employment

-

at

-

will is a very strong underlying force in U.S. employment law, and has been consistently uph

eld in the

courts.

Combating Employment Discrimination

Employment discrimination is another major theme in business law. The employment

-

at

-

will legal concept

does not allow an employer to terminate the U.S. worker for just any reason. Arbitrary and caprici

ous firings

based upon race, religion, gender, sexual orientation, or disability, are prohibited. Employees can

—

and

have

—

successfully sued employers for firing based on those discriminatory criteria.

However, it is not easy to prove discrimination in the w

orkplace. Proving the intent of an employer in an

alleged discriminatory firing of an employee is extraordinarily difficult. Many worker discrimination suits are

settled prior to litigation, and when cases do go to litigation the plaintiffs' success rate i

s fairly low. Workers

seeking to bring a suit on discriminatory grounds need to have a plethora of evidence, and must be able to

document that discrimination in a way that is persuasive and compelling.

Employment-at-Will in the United States

What often surprises Europeans who visit U.S. workplaces or study U.S. employment and labor law is the

fact that the worker in the U.S.—compared to France, Germany, and Italy—lacks many of the protections

from layoffs and firings that can be found in Western Europe. Indeed, the U.S. concept of employment-at-

will, whereby either an employee or employer can terminate the working relationship at any time for

virtually any reason, is unique to U.S. employment law, and has deep and lasting ramifications upon how

the employer-employee relationship evolves and develops.

The concept of employment-at-will emerged as a defense against involuntary servitude—in other words,

preventing someone from being forced to work against his or her will. This gives U.S. workers maximum

flexibility to choose their workplaces, chart their career paths, and pursue better and more lucrative job

opportunities when they arise. However, employment-at-will also carries severe downsides for the

employee. There are few, if any, protections for workers from being let go during an economic downturn,

posing significant risks for workers in economic sectors that are extraordinarily cyclical, such as

manufacturing. In addition, the absence of any incentive for employers to keep workers during economic

downturns has probably led to an increased trend toward outsourcing, downsizing, and streamlining

operations. Finally, the employment-at-will relationship also leaves the employer-employee relationship in a

constant state of uncertainty. An employee hired today may leave next year, next month, or next week.

Because of that, it is difficult for employers to predictably manage and forecast their workforce.

Supporters argue that U.S. companies are more flexible and nimble than their European counterparts

because they can hire and fire depending upon cyclical economic cycles. An argument can be made that the

symmetry of employment-at-will, which grants equal rights to employers and employees to terminate the

working relationship, presents an equilibrium of power that may not exist in Europe, where employees may

hold stronger rights than corporations. However you stand on this issue, one thing is certain; employment-

at-will is a very strong underlying force in U.S. employment law, and has been consistently upheld in the

courts.

Combating Employment Discrimination

Employment discrimination is another major theme in business law. The employment-at-will legal concept

does not allow an employer to terminate the U.S. worker for just any reason. Arbitrary and capricious firings

based upon race, religion, gender, sexual orientation, or disability, are prohibited. Employees can—and

have—successfully sued employers for firing based on those discriminatory criteria.

However, it is not easy to prove discrimination in the workplace. Proving the intent of an employer in an

alleged discriminatory firing of an employee is extraordinarily difficult. Many worker discrimination suits are

settled prior to litigation, and when cases do go to litigation the plaintiffs' success rate is fairly low. Workers

seeking to bring a suit on discriminatory grounds need to have a plethora of evidence, and must be able to

document that discrimination in a way that is persuasive and compelling.