Tech companies have recently made headlines for laying off hundreds, if not thousands, of employees. Twitter was first, cutting hundreds of staff on the night of Nov. 3, and Meta followed suit, announcing it would cut more than 11,000. In late November, DoorDash announced it would lay off 1,250 people.
While some workers affected by these latest cuts could be protected by the federal WARN law, under which those considered part of a mass layoff must receive 60 days written notice along with their regular pay and benefits. during this period, some cannot.
In fact, under the U.S. work-at-will system, workers have very few protections to help them both keep their jobs and cushion the blow – financially, emotionally – if they do. lose. The United States is one of the few countries in the world to have such a system.
Here’s how at-will employment works, why it’s the de facto system in America, and how other countries manage their workforces.
“You can be fired for any reason or no reason at all”
In a broad sense, employment at will “means you can be fired for any reason or no reason at all,” says Najah Farley, senior counsel for the National Employment Law Project.
You can get fired “because the boss is having a bad day,” says Arick Fudali, partner and general counsel at civil rights firm Bloom Firm, for example. “Because he’s in a bad mood. Because you didn’t laugh at his joke.” None of these would necessarily qualify as unlawful dismissal, however unfair it may seem.
“Likewise, you can quit smoking for any reason,” he says.
Montana is the only state in the United States that is not technically at-will, and employers there must have “good cause” for termination, according to its Labor Department. In 2021, however, changes were made to Montana’s wrongful dismissal law, giving employers more leeway in this area.
“Your boss can’t flirt with you and then fire you”
There are several exceptions under which employees cannot be terminated. Here are four of the most critical:
- Discrimination: Your employer cannot fire you for being part of a protected class. According to the US Equal Employment Opportunity Commission. Above all, they also cannot fire you or let you go to complain about discrimination that was not directed at you.
- Sexual harassment: Your employer can’t fire you or let you go for pushing back or making a complaint of sexual harassment, either to you or someone else, even if that complaint turns out to be unfounded. “A boss can’t make you a sexual offer in exchange for your work and then fire you because you refused. Your boss can’t fire you because you’re indifferent to sexual harassment. Your boss can ‘I won’t flirt with you and then fire you because you didn’t respond,” Fudali says.
- Union membership: Many workers who belong to a union are also an exception to the employment-at-will system. “They negotiate the contract and that puts them in a justified job,” says Farley. This means that an employer must have an explicit reason to fire them or let them go.
Separation is not required by law
Another element of the United States’ employment-at-will system is that under its auspices, once an employee is terminated, their former employer does not owe them severance pay or any other similar provision.
“If you arrive at work at 9 a.m. and they fire you at 10 a.m., they’re supposed to pay you for your hour,” plus any overtime worked before that, Farley says. But, for the most part, that’s all they owe you legally, no matter how long you’ve been there or what kind of contributions you’ve made.
Here are several cases in which a company would owe a severance package to a former employee:
- Under the WARN Actthose who are part of what is categorized as a mass layoff or plant closure should receive written notice of layoff 60 days before and the continuation of their wages and benefits during this period, even if they do not have more to come to their workplace.
- Members of some unions may also be entitled to severance pay, depending on what that union has negotiated with the employer.
- Some individual contracts may also provide for severance pay. “If your contract says, ‘If you’re fired in the first six months, you get that amount of money,’ you get that amount of money,” Fudali says. Often senior managers have such contracts.
Employment at will is rare in the world
Most of the countries in the world do not have an at-will employment system. When it comes to many OECD countries, for example, “there are many more steps an employer would have to go through to fire a worker,” says Brookings Institution fellow Annelies Goger.
In Japan, for example, the possibility of dismissing an employee is very restricted and, in some cases, considered a last resort after cutting the salaries of high-ranking officers, ending employment in the company and encouraging retirement. anticipated, in accordance with international labor law. L&E Global firm.
In New Zealand, except in cases of serious misconduct, an employer must give an employee notice of their impending dismissal, according to the government, which states that 2 to 4 weeks’ notice “is often considered fair”. The employer must remunerate the employee until the end of his notice.
“You have to take care of yourself and if you succeed, you succeed”
Why, then, is this the de facto doctrine in the United States?
In part, the system is the result of “the very strong influence that corporations have historically had on policy and legislation,” says Ludmila Praslova, professor of psychology at Vanguard University in Southern California. This gives companies a great deal of freedom, and they have successfully lobbied to keep it.
“I believe a lot of the reason we put so much emphasis on at-will employment here is because of the history of racial discrimination and slavery,” Farley says. It’s a centuries-old tradition of devaluing work and workers that impacts employers’ attitudes even today, she says.
Finally, the strong individualistic culture of the United States comes into play. “You have to take care of yourself and if you succeed, you succeed, if you don’t, you don’t,” says Praslova about how which this individualism plays with. “There’s not a lot of protection for people within that philosophy.”
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