Employment at Will - Successful Companies

When you look at successful companies in the world there are many similarities that are shared. One in particular is having a strong and healthy relationship between employers and employees. There are many factors that can influence this relationship, and businesses must do anything they can to strengthen it. I believe companies can strengthen the employer-employee relationship by implementing due process over Employment at Will (EAW) in the workplace. In this essay I will look at Patricia Werhane's and Richard Epstein's papers and ultimately come to the conclusion that due process not only makes ethical sense, but it is also more beneficial to corporations in the long-run because the employer-employee relationship is strengthened.

It is important that you understand how Werhane and Epstein define EAW and due process, so this is where I would first like to start off. EAW is the principle that "in the absence of law or contract...employers may dismiss their employees at will...for good cause, for no cause, or even for causes morally wrong " and will not be found guilty by law. EAW also gives employees the right to quit or leave their jobs for any or no reason, and without having to give their employers notice. The basic idea of EAW is that employment is voluntary and unknown for both parties. The employee voluntary offers their labour, and the employer voluntary offers work. So they may take back what they offer at any anytime without giving a reason.

Due process is a "means by which a person can appeal a decision in order to get an explanation of that action and opportunity to argue against it. " There are two definitions of due process, procedural and substantive. Procedural due process refers to more legal and judicial practices, where either party has a right to an appeal, hearing and/or trial about a decision made that to them is felt to be unjust. Substantive due process refers more to the rationality of human beings, and how we deserve good and fair reasons for why a decision has been made. Like EAW, due process applies to both employers and employees because employees must give a reason and advanced notice when they decide to leave a firm. The idea here is that human being's are not robots and cannot quit or be fired without a reason for why it has happened. We as humans need reasons.

There is an ethical dilemma occurring between these two doctrines and it is most notable when we look at that the United States. Currently sixty percent of all employees are at will employees, which means forty percent of American employees receive due process In Canada, we are less confused in choosing a strategy because all employers and employees follow due process. I believe that the United States should follow suit, and have due process for all of the workforce. Now I would like to support my thesis by first looking in depth into Werhane's paper, then Epstein's paper.

Werhane starts off her paper by first informing the reader that EAW has had many positive developments that address some of issues with at will employment. For example, Werhane states that according to the Wall Street Journal, courts have been deciding in favour of the employee sixty-seven percent of the time, when it comes to wrongful discharge lawsuits. However she fails to mention that the majority of these cases have nothing really to do with issues of the principle of EAW, but rather violations of 'public policy' . She then goes on to say that due to the fears of legal repercussions of employers, it has resulted in "a more careful spelling out of employment contracts, the development of elaborate grievance procedures, and in general less arbitrariness in employee treatment" . With that being said, Werhane believes there are still many crucial issues with EAW that are not being satisfied with these positive developments.

Patricia Werhane sets up the main part of her paper by identifying five central arguments that typically are used to justify EAW. I will be discussing the first four of the five arguments. The first argument has to do with property rights, which states that when employers let employee's go, they are not denying rights, but simply getting rid of labour. The key idea here is that EAW separates the employee from their labour because since labour creates productivity (property of the employer), the employer only hires the labour of the employee to get the productivity. Werhane objects this argument by saying that you cannot separate a person from their labour because the activity of working (labour) is useless without the person. Evidently, when an employer hires an employee they are not just hiring their labour, but they are also hiring the person. It does not make sense to separate an employee from their labour. The second argument for EAW that Werhane identifies talks about the freedom of contract and how an employee voluntarily agrees to the contract stipulated by the employer, therefore employer and employee rights are equal. Werhane mentions that though this does present a good point, it is not true because of the fact that employers tend to have more power than employees. The third argument of EAW discusses the idea that when employees voluntarily agree to the freedom of contract, they also agree to certain responsibilities, such as loyalty, trust and respect. Werhane counters this argument by simply saying that these responsibilities must go both ways. Therefore if an employer expects loyalty and respect they must, in return, act the same towards the employee . The fourth argument for EAW that Werhane refers to is the belief that offering due process will make an organization less efficient and unproductive because due process can be thought of as an expensive and time consuming. It is also often said that due process makes it easier for lazy and troublemaking employees to keep their jobs. Ian Maitland, a defender of EAW, gives another point to this argument. He believes that if an employer were to implement due process, they would not be "accurately reflecting workers preferences for wages over contractually guaranteed protections against dismissal. " Maitland is suggesting that because of the costs of having due process in the workplace the employer would have to lower employees' salaries. Werhane objects this argument by stating that it incorrectly assumes three things. The first incorrect assumption is that due process is expensive and reduces efficiency. Werhane says that there is no documented proof of this