The Employment Termination Equity Act: Finding a Compromise Between Employment At-Will and Just CauseExpressO (2007)
AbstractMany scholars have criticized the harshness of the employment at-will presumption, whereby an employer can terminate an employee for good reason, bad reason, or no reason at all. Unlike other scholarship; however, this proposal adopts a novel approach to the problem of the at-will presumption. Instead of suggesting that the at-will presumption should be replaced with a just cause standard, this article suggests a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would be free to terminate unproductive or poorly performing employees, without having the difficult burden of proving just cause. However, certain enumerated reasons for termination would be unlawful. In determining which termination decisions should warrant protection, my goal was two-fold: (1) to make unlawful termination decisions that have previously fallen through the cracks of the morass of current employment laws and (2) to provide some overlap protection with statutes already on the books by using a procedural process that will be more easily accessible by employees. Yet, in the spirit of true compromise, ETEA will provide fewer types of remedies than other employment statutes or common law claims, and will force plaintiffs to choose between suit under this proposed termination statute and other statutory remedies. As with any compromise, lines had to be drawn and line-drawing never satisfies everyone. My goal in this article is to convince the reader to view my line drawing optimistically—as a necessary means of reaching compromise between employers and employees.
Publication DateAugust, 2007
Citation InformationNicole B. Porter. "The Employment Termination Equity Act: Finding a Compromise Between Employment At-Will and Just Cause" ExpressO (2007)
Available at: http://works.bepress.com/nicole_porter/1/