at will employment tech worker

Tech Layoffs: How are They Allowed to Do This?!

At Will Employment

Colonized by Puritans, who viewed hard labor as their righteous duty, and reasonable rest as a sin, the United States was destined from the beginning to have a unique relationship with paid labor. The infant stages of the country took place in the nursery of industrialization, fed by the works of Adam Smith and other philosophers who pushed for business interests over workers’ rights. Furthermore, the use of slavery and indentured servitude has plagued the nation since its beginning. All these influences came together during the formation of the country’s initial labor laws and treatises, resulting (perhaps by mistake) in a societal acceptance of the concept of at-will employment.

The at-will employment presumption, the law of all states except Montana, allows employers to fire workers on a whim, void of any justification. The law presumes that all employees are at-will, even if the employees themselves never explicitly agreed to be at-will.

There are few exceptions to the at-will presumption. Most notably, employers are not permitted to fire employees for certain discriminatory reasons, or in retaliation for whistleblowing or similar legally protected activities. One of the more popular ways to avoid at-will employment, though, is for the employee to have a contract with the employer that only permits the employer to fire them “for cause”. In such a contract, the employee is typically insulated from an employer’s unjust or sudden firing, but can still be let go as a result of the employee’s bad behavior or an instance of economic downturn.

Why Does the At-Will Employment Presumption Matter?

The tech industry has recently had a rash of lay-offs. These heartbreaking stories of thousands of tech workers callously fired over mass email by petulant billionaires, losing their jobs, healthcare, and safety all at once, have touched the hearts of American workers. At-will tech workers remain vulnerable to continuations of this kind of behavior by employers, because those employers don’t need a reason to fire anyone, and they’re certainly not required to give workers time to prepare or search for their next job.  

The at-will presumption affects workers that are under a “for cause” contract, too. At-will employment as the legal standard limits the negotiating power of the employee, often resulting in contracts that either do not protect the employee from unjust firing, or force the employee to sacrifice other benefits in favor of their job security.  

What Can You Do?

If you’re fired, and you believe that it was in violation of a contract between yourself and your employer, or if you believe that you were fired for discriminatory or retaliatory reasons, reach out to your attorney.

In the meantime, there are a few ways that you can increase your job security before you’re ever in a situation where you fear getting fired:

  1. Just as you might negotiate your salary and other benefits, you’re allowed to individually negotiate for a “for-cause” provision; you can do this when you’re first hired, or any time during your employment.  
  2. If you’re a member of a union, or otherwise engaging in collective bargaining, talk with your coworkers about demanding a “for-cause” provision in your employment contracts.  

You can also advocate for change by writing your representatives regarding your thoughts about the at-will employment presumption in your state. 

Contact us.

Written by Cecil Mattson, 2L of Texas A&M School of Law.

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