Document Type
Article
Publication Date
1988
Abstract
Roughly one-quarter of the workers in the United States are represented by unions, leaving three-quarters subject to the vicissitudes of the employment-at-will doctrine.' At-will employees, as a general matter, lack protection against dismissal without cause.2 That is, an employer may dismiss an "at will" employee without notice, "for good reason, bad reason or no reason at all," so long as the proffered reasons for dismissal do not violate random whistle-blowing provisions or federal and state anti-discrimination statutes.' The mirror image of the employer's right to dismiss at will is the right of an employee who was hired to perform work for an indefinite period of time to terminate the employment relationship for any reason at any time.
By contrast, union employees enjoy the benefit of the collective bargaining agreement which, in a written contract between the employer and the union, expressly creates mutual rights and obligations.' The collective agreement lays down nearly all of the terms and conditions of employment of the employees in the bargaining unit.6 One of the terms present in nearly all collective agreements is a term limiting the employer's power of discharge to cases in which just cause exists.7 Nonunionized employees, however, remain subject to the traditional doctrine of at-will employment.
State courts have recognized some exceptions to this doctrine in the past two decades.' For the most part, however, these are narrow exceptions, based on public policy concerns. Some observers have argued that the continuing judicial erosion of the employment-at-will doctrine will move closer the date of true statutory reform of dismissal law. The purpose of this Comment is to explore the feasibility of modeling either a federal or a uniform state statute governing dismissal law after statutes that now exist in a few states. 2 A look at other countries' statutory development may also be instructive. 3 France provides one such model.
Part One of this Comment focuses on the French approach to the dismissal law. Part Two of the Comment examines France's restrictions on the employer's right to dismiss through the development of the judicial doctrine of a bus de droit. I4 Part Two also analyzes the underlying purposes of the early dismissal legislation in France and explores the mechanics and judicial application of the French dismissal statute. Part Three examines the historical development of the employment-at-will doctrine in the United States and its judicial and legislative erosion. Part Four suggests a way to incorporate both the French model and the existing International Labor Organization unfair dismissal standards into our state statutory systems. The Comment concludes that adoption of unfair dismissal legislation on a state-by-state basis in the United States is not only timely and feasible but also desirable.
Recommended Citation
Madeleine M. Plasencia, Employment at Will: The French Experience as a Basis for Reform, 9 Comp. Lab. L.J. 294 (1988).