American Civil Liberties Union Briefer
UNJUST FIRINGS: TIME FOR A STATUTE
Dorothy Jamison was fired from the job she had held for ten years as a
supervisor in a Philadelphia nursing home after she called her employer two
hours late to say that she could not come to work because her brother, with
whom she lived, had just died. Other employees have been fired so the
employer could avoid paying contractually earned commissions; for
protesting the concentration of carcinogenic saccharin in children's
aspirin; for refusing to vote as their employer wished, and for a host of
other unjust reasons.
Most Americans believe that they can be fired only for a legitimate reason.
Unfortunately, this is not the case. Under an archaic 19th century
doctrine called "employment at will," employers have the right to fire
their employees at will at any time, for any reason or for no reason at
all. While courts have recently created some narrow exceptions to this
unfair doctrine, it is basically still operative.
Employers have not been reluctant to exercise their unqualified right to
fire employees. Therefore, employees who are not covered by collective
bargaining agreements or other employment contracts are never secure in
their jobs and can be dismissed without prior warning, no matter how
satisfactory their job performance might be.
The American Civil Liberties Union believes that working people should be
protected against arbitrary firings, and that they should only be fired for
How widespread is the problem of unjust firings?
The U.S. Bureau of Labor Statistics has estimated that, of the
approximately 80 million Americans employed in the private sector of the
nation's economy, 60 million are employed "at will." Two million at-will
employees are fired every year, and it is estimated that about ten percent
of those -- at least 150,000 workers -- are fired for no legitimate reason.
Why is this a civil liberties issue?
Free expression, equal protection, and due process are rights guaranteed to
all Americans by the First and Fourteenth Amendments to the United States
Constitution. Although the Constitution restrains governmental employers
from violating those rights, it does not restrain private employers. Yet
the impact on the lives of workers and their families of such unfair
practices as arbitrary firings is just as devastating when the employer is
private, even though the private employer's actions do not violate the
The ACLU opposes any corporate practice that arbitrarily deprives workers
of their basic rights.
What can be done to stop unjust firings?
The ACLU has proposed state and federal legislation that would prohibit
employers from terminating an employee without just cause, which means:
Dismissal would only be justified if the employee's conduct impaired his or
her job performance in a significant way; the employee's offense violated a
rule known to the employee, and the offense was serious enought to warrant
termination. Employers would still be free to fire incompetent workers, to
abolish obsolete positions or to dismiss workers because of business
Fired employees who felt wronged would be able to challenge their
employer's action before a panel of impartial arbitrators, who would have
the authority to require an employee's reinstatement with back pay if they
found a firing to be unjust. Employees would also have the option of
choosing court litigation.
Is arbitration better than litigation?
Definitely. On average, litigation is a years-long, extremely costly
process -- it can cost as much as $250,000. Arbitration is a faster and
cheaper alternative by far, with arbitrators taking, on average, only six
months or less to render a decision, at a cost of approximately $2,500.
Members of the American Arbitration Association and other similar
organizations form a national corps of neutral labor arbitrators. They
have extensive expertise in conducting fair hearings and process thousands
of cases each year.
Does union membership protect workers from unjust firings?
Yes. Collective bargaining agreements between labor unions and employers
provide that union employees can be fired only for just cause, and only
after a hearing by a neutral arbitrator. However, less than 20 percent of
American workers belong to unions today. The ACLU statute would extend to
non-union employees the same protection afforded union employees by the
arbitration clauses in collective bargaining agreements.
Aren't there already federal laws that protect the rights of workers?
Yes, a number of federal and state laws protect *some* rights of *some*
American workers. Title VII of the Civil Rights Act of 1964 prohibits
employment discrimination based on race, color, sex, religion or national
origin. The Federal Age Discrimination in Employment Act protects
employees against discrimination based on age, the Americans With
Disabilities Act protects disabled persons against discrimination and the
National Labor Relations Act protects workers' rights to join together and
protest working conditions, or to form labor unions.
Would compliance with an unjust discharge law be too burdensome for
employers, and if so wouldn't the profits and competitiveness of American
companies be adversely affected?
Some members of the business community fear that enactment of an unjust
discharge law would disrupt business operations. Legions of employees,
they say, would challenge their dismissals, resulting in reduced
productivity, competitiveness and profits. Some employers, however,
including some of the nation's most successful corporations, have
voluntarily adopted just cause standards with no adverse effects to their
businesses. These employers believe that treating employees with respect
boosts morale and productivity and, thus, enhances profits. And virtually
all of the world's industrialized nations -- including Germany and Japan,
our staunchest competitors -- have laws that require private employer to
adhere to just cause standards in dismissing employees. Clearly, the
interests of both labor and management are best served by fair employment
Doesn't unemployment insurance adequately compensate workers who lose their
No, unemployment compensation falls far short of meeting the needs of
workers who lose their jobs. For example, unemployment benefits have a
ceiling that varies from state to state; the payments amount to
significantly less than the lost wages, and the payments are of limited
duration. Although many people find new employment before their
unemployment compensation ends, their loss of seniority and the benefits
that accompany long-term employment is unrecoverable. Moreover,
unemployment compensation does not address the issue of fairness with
respect to arbitrary firings.
Wouldn't an unjust discharge law create a statutory right to a job?
No. The ACLU model statute does not require private industry -- or the
government -- to create jobs. It does not require employers to hire
unqualified persons, to keep incompetents on their payroll or to maintain
obsolete positions in order to save jobs. The purpose of the ACLU statute
is simply to establish a just cause standard for job firings and to
recognize, where collective bargaining agreements are absent, dismissed
employees' right to due process. Passage of this legislation would have no
impact at all on the business operations of employers whose workplace
practices are already fair and just.
Would this statute prohibit employers from laying off workers or closing
plants for economic reasons?
No. The ACLU statute specifically excludes economic terminations from the
definition of discharge.
In the past, unfairly treated workers have sued their employers, claiming
personal injury or breach of contract. Why aren't these traditional
avenues of relief enough?
Ideally, private sector workers who believe they have been discharged
unjustly should have access to, and be able to afford, a jury trial and the
full range of remedies provided by law. These would include, where
appropriate, compensatory and punitive damages. The reality, however, is
that at present more than 95 percent of such employees *get no relief at
all*. If enacted, the ACLU statute would ensure that fired private sector
workers have the right appeal the loss of their jobs to a neutral
arbitrator and, if they win, to receive an award of back pay, reinstatement
and restoration of benefits. This is not a perfect solution, but it would
be far better than what we have now.
Produced by The National Task Force on Civil Liberties in the Workplace
American Civil Liberties Union
Department of Public Education
132 West 43rd Street
New York, NY 10036
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