Many voters will be casting ballots on state propositions this November. Colorado seems to be trying to out-prop California, which, at times, seems to govern more by proposition than legislation.
Of especial interest are interest are propositions on workplace issues, such as outlawing at-will employment, right up there in importance with those on when life begins a/k/a stealth outlawing birth control propositions.
The American Constitution Society has been very active in publishing issue briefs and other pieces related to workplace issue. These are short but serious analyses of important policy issues. Here is what is up in just the most recent days.
crossposted from unbossed
Yesterday, an issue brief was published at the American Constitution Society's website directly related to this at-will employment. The author's brief summary of the study states:
I explore the history of the rule of at-will employment, the common-law and statutory exceptions to that rule, the grossly unfair results that flow from that rule and arguments for and against it. This issue is especially timely now, since the November ballot in Colorado will contain a proposed state constitutional amendment that would abolish the at-will employment rule in that state.
The United States is the only advanced industrial country that does not require employers to have just cause to terminate the employment of non-unionized employees. One of the arguments for retaining the at-will employment rule is an economic one, that requiring just cause would increase unemployment rates and reduce the rate of job growth.
I have examined the unemployment and job-growth rates for Montana, the only state with a just-cause statute. . . .
I have found that the Montana just-cause statute has had no discernable effect on that state’s unemployment or job-growth rates. Montana’s and Idaho’s unemployment rates rose in tandem with each other before and after Montana adopted the implied covenant, and Montana’s unemployment rate and the unemployment rates in surrounding states declined after it enacted the MWDA. The Montana unemployment rate, as of December 2007, was among the lowest in the nation.
The job-growth rates for Montana and surrounding states have followed the same trends. The rates for Montana and for those states – all of which have adopted the at-will employment rule – have moved in tandem with each other.
Based on my analysis, I have concluded that that unemployment and job-growth rates for Montana have been the result of larger economic trends, such as the impact of recessions on that state’s timber industry, bust and boom cycles in petroleum and natural gas exploration, and droughts. As I say in the Issue Brief, "twin bogeymen of higher unemployment and lower job-growth rates should not shape the public policy debate on the abolition of the doctrine of employment at will."
You can read the full issue brief here.
Another recent article on this issue - but not at the ACS blog - argues: Why At-Will Employment is Bad for Employers and Just Cause is Good for Them
Many employers believe that if they set up an at-will system and police it vigorously they will be safe from lawsuits. However, despite almost universal acceptance of at-will relationships in the United States, employment litigation is on the rise and is now a large percentage of cases on court dockets.
Dissatisfaction with at-will doctrine has led courts to develop common law contract and tort doctrines that are mere patches on an unstable system. They are viewed as exceptions to at-will and thus must fit within that system yet not destroy it. They are also similar to patches in that they are more a product of incrementalist legal development than logic.
Distortion of the law that leads to greater complexity and uncertainty are not the only costs created by at-will. In fact, its greatest costs may be its effect on employers in the management of their workplaces. In order to gauge its costs, we must start by asking what most employers gain from having an at-will system. The greatest benefit would be if most employers frequently wanted to fire their workers for a bad reason or for no reason. By now most bad reasons for firing workers have been made illegal, so an at-will regime is limited to firing workers for a good reason or no reason. It also seems unlikely that most employers want to fire their employees for no reason, because, by definition, this means firing good employees.
If these assumptions are correct, then employers are bearing the cost of exercising the vigilance necessary to keep and defend a system that is not useful and may not even be much used. What is the benefit to employers of this strategy? And what are the costs
And on workplace safety, an issue brief published on September 1, is Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the OSH Act
The press release for this piece states:
examines the need for stronger penalties for violators of the worker safety laws. Professor Uhlmann observes, "[a]pproximately 6000 workers are killed on the job each year – and thousands more suffer grievous injuries – yet penalties for worker safety violations remain appallingly small, and criminal prosecutions are almost non-existent." Professor Uhlmann explains that prosecution under the Occupational Safety and Health Act (the "OSH Act") is rare because the Act’s substantive criminal provisions are "limited to (1) willful violations of worker safety regulations that (2) result in worker death." Further, even when criminal provisions apply, the crime is only a Class B misdemeanor, which, according to the author, provides little incentive for prosecutors and law enforcement personnel who often have to reserve their limited resources for felonies. The author concludes by recommending that Congress pass legislation to strengthen the criminal provisions of the worker safety laws, which would allow our nation to "make good on the promise of a safe workplace made 30 years ago when Congress enacted the Occupational Safety and Health Act." As Professor Uhlmann reminds readers, "everyone deserves a safe place to work and the ability to come home to their families in good health each night."
More issue briefs may be found here, including other recent pieces on work issues. And the ACS blog has more, including stories related to the electoral political side of the
ballot.
There has never been a more important election in my life. Interesting too.