Employment at Will Vs. Due Process

Ryan Cantrell

Employment at Will vs. Due Process

        Employment at will and due process are both terms used in the workplace to describe how much freedom employees and employers have when an employment contract is signed. Employment at will is described by Patricia Werhane and Tara Radin as the right of employers to “hire, fire, demote, or promote whomever and whenever they please” (Werhane and Radin 2013). To summarize their points, employment at will gives the employers all the power to move their employees around whenever they please without providing justification for it. There are many arguments for and against this policy. A common objection to the idea of employment at will is that employees should possess the right to due process.

Due process is described as “a means by which a person can appeal a decision in order to get an explanation of that action and an opportunity to argue against it” (Werhane and Radin 2013). To summarize Werhane and Radin once again, due process is the right for an employee to receive a valid explanation for the termination of their employment contract and the right to appeal it. There are two types of due process. The first, procedural due process, guarantees the employee a chance to go to trial with the employer and appeal the decision. The second, substantive due process, guarantees the employee a chance to receive a reasonable explanation as to why they were terminated or demoted (Werhane and Radin 2013). Many people believe employees should have the right to both forms of due process and many people believe they don’t have the right to either. The purpose of this paper is to provide multiple arguments for at will employment, objections to the arguments, and an opinion on the more acceptable policy in the workplace.

Arguments in Favor of Employment at Will

        A common argument in favor of at will employment is that owners have certain proprietary rights that can be exercised whenever they please (Werhane and Radin 2013). Proprietary rights are the rights that come along with ownership status. Many owners believe that these proprietary rights give them the ability to employ anyone they want for any reason they want. In return for offering an employee a job for a specified amount of money, owners believe that they own that employee and the labor that they provide. For example, Company X hires Employee A to work 40 hours per work at a salary of $55,000 per year. The owner of Company X, based on his or her proprietary rights, is exchanging money for the labor that the employee provides rather than the employee. As a result, deciding to dismiss the employee from the organization is actually a matter of dismissing the labor that the employee does for the company instead of the employee.

        Another common argument in favor of employment at will is that an employment contract defines employee rights and employer rights equally. In the same way that employers can choose to hire, fire, promote, or demote employees at any point in time regardless of the reason, employees have the power to quit their jobs whenever they please. This argument can also be extended to include that providing every employee with the right to due process would only be fair if employers were extended the same rights. For example, if Company X from the previous example was experiencing a major decrease in revenue over consecutive periods, management may decide to lay off multiple workers to cut down on their salaries and wages expenses. If Employee A is one of the many who gets laid off, they might fight for the right to bring the case to trial. In the opposite way, if Employee A quits their job with Company X because they think they are being treated unfairly, should Company X have the same right to bring the case to trial? Some people believe that the answer to this question should be yes because an employee/employer contract should treat both parties equally and the same rights should be provided to both sides.

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