Bernie's Promise: The End of the Employment At-Will Doctrine?

Bernie Sanders recently announced that if elected President, he will end the employment “at-will” doctrine.  Unfortunately for Bernie, he is a little late to the party on this one.  According to the employment “at-will” doctrine, which is the law in the Commonwealth of Pennsylvania, both the employer and employee are permitted to terminate the employment relationship at any time, with or without cause and with or without notice.  According to Bernie, employers should be required to establish “just cause” to terminate the employment relationship.  If you agree with Bernie but are worried about his prospects of winning the election, fear not.  The employment “at-will” doctrine is already dead.

To all of the employers out there, let me ask this question:  when is the last time you terminated an employee for no reason?  It never happens.  There is always a reason.  In fact, because of the almost endless exceptions to the employment at-will doctrine (discrimination claims, retaliation claims, wrongful termination claims, public policy claims, etc.), employers essentially must always have a reason (and a good one at that) to terminate the employment relationship. 

Every employee in America belongs to a protected class—whether it is gender, race, national origin, or religion (yes, even those employees whose religion is that they don’t have one are likely protected).  Many other employees fall into the protected classes of age or disability (especially in light of the expansive definition of disability under the ADA Amendments Act of 2008).  While still others fall into the ever-expanding list of protected classes in different states and jurisdictions (e.g., genetic information, sexual orientation, transgender status, gender identity, use of a service or guide dog, etc.). Consequently, any time an employer terminates an employee, the employee can allege that the termination was discriminatory—i.e., based upon the employee’s membership in a protected class.  In response, in order to assert a defense to such claims, the employer will be required to establish that it had a “legitimate, non-discriminatory reason” for the termination.  In other words, the employer will have to establish that it had “just cause” to terminate the employee. 

While the employment at-will doctrine may sound like a powerful weapon for employers, in reality, the exceptions swallow the rule.  The truth of the matter is that the employment at-will doctrine is more Sasquatch than it is grizzly bear.  If Bernie wins the election in 2022, he can already cross off one of his campaign promises. 

For more information about this or any other labor and employment law issue, please contact us at info@hhe-law.com.  We hope to see you at our upcoming 2018-19 Employment Law Update Seminar on September 18.  To register, visit: https://www.hhe-law.com/seminars.