Cities strive to end another legacy of slavery – “at will” employment


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In the United States, most workers can be fired from their jobs for almost any reason or for no reason, due to a 150-year-old legal doctrine known as “at will” employment, which remains the law in 49 states. In an all-you-can-eat job, it’s perfectly legal for employers to fire workers without a fair process, notice, or just cause.

These unjust layoffs are remarkably frequent, jeopardizing the economic security of workers of all races, but especially that of people of color. One in two American workers (47% of workers overall, 50% of black workers and 52% of Latinx workers) have been unfairly or arbitrarily dismissed at some point in their lives.

While this is considered normal in the United States, it is not tolerated in most other industrialized countries. The difference between the United States and the majority of European nations, Japan, Mexico, Australia and other countries that prohibit unfair dismissals, is slavery – the original oppression of our nation and based on which many of today’s injustices have been built on.

Out of the soil of slavery

The at-will-employment doctrine – which states that employers can legally fire workers without warning or explanation – has never been passed or decided through a democratic legislative process. Instead, over the course of several decades, conservative justices across the country – possibly including the United States Supreme Court – have sided with railroads and other employment advocates. at will. They imposed the doctrine through court decisions in the decades following the adoption of the 13e Amendment, which prohibits slavery and most forms of servitude.

Retrace the doctrine at will the story reveals that it arose out of the soil of slavery and servitude and was cemented into the legal system as a product of industrialists ‘efforts to suppress workers’ organization.

After the passage of the 13th Amendment in 1865, employers sought new ways to exercise their power over workers, including formerly enslaved blacks and enslaved immigrant workers. Some freedmen have been fired for simply asking to be paid what they are owed, for example, while others have been fired for attempting to vote or for voting against the interests of their boss.

Railways – which until then relied on various easement systems for their work – were among the largest employers of this period and played a disproportionate role in the backlash against the 13Amendment and reconstruction efforts to empower workers.

Proponents of the OTC doctrine have formulated their arguments in relation to the 13amendment, arguing that if workers had the “right to resign” without restrictions, employers should have a “right to terminate” without reason or explanation. But like the historian of law Léa Vandervelde Explain, these arguments represented a perversion of congressional intent:

“All along [the Congressional discussions during Reconstruction] no one has explained that this constitutional anti-subordination protection – the right to resign – implied a reciprocal right allowing masters to fire workers at will … Yet, a decade later, the concept that these two rights were linked was used to prime vulnerable fundamental constitutional rights of workers into an assertion that the employer could fire employees at will.

Limit the power of workers

The OTC doctrine matured as a legal standard during the period of social unrest in the half century following the Civil War. Advantageous railroads and judges have sought to use doctrine to limit the growing power of organized railway workers, who have staged large multiracial worker uprisings across the country in the struggle to define what “free labor” means. Should mean in the post-war period. context of slavery.

The at will doctrine finally made its way to the Supreme Court. In Adair v. United States (1908) and Coppage v. Kansas (1915), the Court considered whether railways could dismiss workers for membership in pro-worker organizations. Both decisions were based on the false equivalence that a manager’s ability to terminate employees as he pleases is akin to an employee’s ability to resign as he pleases.

In these cases, we see how the practice of slavery and servitude has shaped the logic of conservative courts, forcing those who organize for better working conditions to fight an inherently biased and racist legal system. This is a prime example of how the legacy of slavery and its aftermath continued to ripple through generations of workers attempting to wield power at work.

Allow precariousness

A century and a half later, unlimited employment still functions as a tool to relieve workers’ responsibility, especially black and brown workers.

Many Americans understand that job insecurity is a side effect of “bad jobs,” such as the Amazon warehouse jobs that have received so much publicity. But the system at will is what allows this kind of precariousness and consecrates it for almost all jobs in the United States; it exacerbates the inordinate power that employers hold over workers at work and in our economy in general.

The effects of unlimited employment are manifold and harm all workers. But because it reinforces existing power imbalances, open-ended employment particularly harms those who have the least power in the labor market and are most often separated into dangerous and lower-paid jobs: workers on the job market. predominantly black and Latin.

Today, workers of color typically face higher rates of wage theft and unsafe workplaces. But because open-ended employment increases fears of retaliation, black and Latin workers are less likely to speak out about concerns or injustices in the workplace. Indeed, black workers are more than twice as likely as white workers for having seen possible retaliation from their employer. And while we now have laws designed to protect workers facing racism or abuse in the workplace, the current system undermines the enforcement of these laws, making workers of color more vulnerable to discrimination in the workplace.

Movement for change

Offer of “just cause” protections a solid alternative. Under the doctrine of justification, employers must demonstrate a real reason for termination, such as job performance or downsizing the company due to economic hardship. They are required to give employees fair warning, proper training and a chance to improve before they are fired. Employers must also apply disciplinary policies fairly and consistently, and they must pay severance pay to all dismissed workers.

These stipulations may seem like common sense or a basic consideration, but they are a considerable departure from at-will employment. As you might expect, just cause protections are extremely popular with voters. In a February 2021 survey, 71% of voters in the battlefield congressional constituencies – including 67% of Republican voters – supported the just cause laws.

For the first time in decades, we are seeing a momentum to replace at will employment with just cause protections, which has been particularly strong at the local level. Thanks to labor and community organizing led primarily by black and brown workers, Philadelphia and New York City recently enacted just cause legislation for targeted industries – for the car park and fast food industrial, respectively. And last spring, Illinois lawmakers – in partnership with worker centers and allies in the Coalition for Stable Jobs Now – introduced the Secure Jobs Act, a bill for just cause that extend protections to all state workers.

City by city and industry by industry, workers demand a better way of working and living. It’s time to replace jobs at will – and rectify the ugly history it bears – with a fairer system that puts power back in the hands of working people.

Rebecca Dixon is the Executive Director of National labor law project (NELP).

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