Employment at Will

ACLU Briefing Paper Number 12When the United States became a nation more than 200 years ago, theFounders formulated a Constitution that structured the new society asa majoritarian democracy. They later added a Bill of Rights toprotect individuals from the tyranny of the majority. But in the 18thcentury, when the Constitution and Bill of Rights were ratified, thegovernment was viewed as the only major threat to individual rights.The Founders could not have imagined back then that, one day,concentrations of corporate power would exist on a scale rivalling,and in some cases exceeding, governmental power.Today, most Americans are more vulnerable to having their rightsviolated by their employers than the early Americans were to havingtheir rights violated by the government. Yet because the Constitutiondoes not limit their authority, private employers are free to violatethe civil liberties of their employees. Nationwide, the AmericanCivil Liberties Union receives more complaints about abuses byemployers than about abuses by the government:* In California, a job applicant was denied a job because he refusedto answer questions about his sex life on a "psychological test." Atleast million job applicants are required to take such tests everyyear.* In Pennsylvania, an employee was fired because he pointed outserious safety defects in his employer's products At least 200,000Americans are unjustly fired every year.* In Indiana, an employee was fired because she smoked cigarettes inher own home. At least 6,000 American companies now attempt toregulate off-duty smoking and other private behavior.The ACLU believes that such abuses can only be prevented byextending, into the private workplace, the protections guaranteed inthe Bill of Rights. Certainly, we recognize that employers have everyright to expect workers to do their jobs. But employees are alsoentitled to the same freedoms on the job that they enjoy off the job.Here are the ACLU's answers to some questions frequently asked by thepublic about the rights of American employees.If the Constitution doesn't apply to the private workplace, whatdoes?The vast majority of American employees, of whom there are 100million in all, are governed by a doctrine called "employment atwill." This doctrine, a relic of 19th century anti-labor laws, givesemployers the unfettered right to fire workers at any time, for anyreason, whether grave or frivolous. Indeed, one can be fired for noreason at all. An estimated 200,000 employees at least, are unjustlyfired in the United States each year.It is the prevalence of the employment-at-will doctrine that empowersemployers to impose unwarranted urine tests and intrusive"personality" and "integrity" tests on their employees. The power tofire at will permits employers to suppress their employees right tofree speech.Are there any laws that protect employees' rights?There are federal and state laws that prohibit discrimination againstindividuals on the bases of race, religion, sex, national origin, ageand disability. However, these laws require only that employees betreated equally. Employers are, therefore, free to do whatever theywish to their employees as long as they do so in a non-discriminatorymanner.A few other federal and state laws provide some protection againstspecific abuses, such as urine testing, polygraph testing andretaliation against whistle blowers. But these laws are extremelylimited. The fundamental human rights of free expression, privacy anddue process are still largely unprotected in the American workplace.Does the employment-at-will doctrine apply to all employees?No. There are three broad categories of employees who are notgoverned by employment at-will:Government employees: Federal, state and local government workers areprotected by the Fifth and Fourteenth Amendments, which prohibit thegovernment from depriving any person of "life, liberty or property"without due process of law. These employees are considered to have aproperty interest in their jobs, and the right to due process placessignificant restrictions on arbitrary dismissals unrelated to job performance. Some additional protection is provided by federal,state and local civil service laws.Union members: Virtually all collective bargaining agreements betweenlabor unions and employers stipulate that unionized employees can befired only for just cause, and only after a hearing before a neutralarbitrator. However, less than 20 percent of American workers belongto unions today, since union membership has been declining for years.Contract employees: Senior executives, performers, athletes and someother well-situated employees, whose numbers are so small as to beinsignificant, work under individual employment contracts thatprovide protection against unjust dismissal.What can be done about the problem of unjust dismissals?The ACLU believes that the outmoded and unfair employment-at-willdoctrine should be abolished. Over the years, the many attempts madeto challenge employment at-will in the courts have produced a fewnarrow exceptions to the rule, but these exceptions have helped veryfew of the people unjustly fired from their jobs. The ACLU and otherorganizations advocating employee rights are actively promoting instate legislatures, model statutes that encompass the following basicprinciples:* Employees can be fired only for just cause.* "Just cause" means that: the employee's offense adversely affectedhis or her job performance; the rule or standard violated by theemployee was known to the employee; and the infraction was seriousenough to warrant termination.* Every employee faced with termination is entitled to a hearing thatincludes the right to confront witnesses, the right to presentevidence, the right to have adequate representation (either an attorney or other type of counsel), and the right to an impartialdecision maker.Can employers legally search their employees' lockers, desks andurine looking for contraband?The Fourth Amendment, which protects the privacy of citizens from"unreasonable searches and seizures," gives some protection to publicsector employees against their employers' prying eyes. In general, agovernment employer cannot search the person or belongings of anemployee in the absence of any suspicion that the particular employeehas done something illegal. With respect to urine testing for drugs,however, the U.S. Supreme Court has ruled that government employeescan be required to take such tests, even if the employer does notsuspect drug use, if the person's job is "safety sensitive," orinvolves carrying weapons or having access to classified information.

Private Sector employees, on the other hand, have virtually noprotection against even the most intrusive practices. In all but ahandful of states, an employee can be required to submit to a urinetest even where nothing about the employee's job performance orhistory suggests illegal drug use. If the employee refuses, he orshe can be terminated without legal recourse. Employees can besubjected to "sniff" searches by dogs and searches of their lockersdesks, purses, and even their cars if they park in the companyparking lot. Both job applicants and employees can be required toanswer extremely intrusive questions about their private lives andpersonal beliefs on "psychological," "personality" and "integrity"tests.The advent of computer technology has made possible even moresophisticated forms of spying in the workplace. More and moreemployees are being subjected to electronic surveillance throughvideo display terminals, observation by hidden cameras installed inwork areas and locker rooms, and monitored telephone calls. With fewexceptions, these increasingly widespread practices are legal.What can be done to protect the privacy rights of employees?The ACLU believes that both state and federal legislation should beenacted to extend privacy rights to private sector employeesIn recent years, some positive strides have been made. In 1988,Congress passed the Employee Polygraph Protection Act, which endeddecades of "lie detector" abuse in the private workplace. The Actoutlaws most random and pre-employment polygraph testing, which inpast years had led to an estimated 300,000 workers per year beingbranded liars.Several states--Connecticut, Iowa, Maine, Minnesota, Montana, RhodeIsland and Vermont--have enacted legislation that protects employeesfrom indiscriminate urine testing. Two states -- Massachusetts andRhode Island--restrict paper and pencil "honesty" tests. Connecticutis the only state that has a law prohibiting "electronicsurveillance, including video surveillance, of any area designed forthe health and comfort of employees or for safeguarding of theirpossessions."The ACLU has developed model statutes to protect employees fromunfair urine testing and electronic surveillance and is activelylobbying for their passage in state legislatures throughout thecountry. The ACLU is also urging Congress to amend the EmployeePolygraph Protection Act to cover so-called paper and pencil"integrity" tests.Can employers discriminate on the basis of employees' lifestyles?One of the emerging issues in the American workplace is the attemptby employers to control certain private habits and proclivities oftheir employees that have no relationship to job performance. Fatpeople are victims of lifestyle discrimination and a growing numberof companies are refusing to hire smokers--even those who smoke onlyin their homes. A few employers exclude people with high cholesterollevels, or high blood pressure, and those who engage in such riskyhobbies as scuba diving and hang gliding. Others impose lifestylerestrictions: One Oregon company bars workers who fail to participatein the company's exercise program from attending company picnics; aPennsylvania company prohibits its managers from riding motorcycles!The driving force behind this trend is economics. Employers concernedabout the escalating costs of employee health insurance areattempting to cut costs by firing and/or refusing to hire peoplewhose lifestyles appear to place them at risk of illness or injury.But if reducing health care costs is accepted as a legitimate reasonfor employers to regulate the off-the job conduct of their employees,then virtually every aspect of our private lives could be subject toemployer control. This would be Big Brotherism at its worst.What can be done to prevent lifestyle discrimination?The ACLU believes that, just as legislation has been needed toprevent other violations of civil liberties in the workplace,legislation is also necessary to prevent lifestyle discrimination.Just as federal, state and local laws exist to prohibit employmentdiscrimination based on race, gender, ethnicity, religion and, insome places, sexual orientation, new laws are needed to protectagainst discriminatory practices based on employees private lifestylepreferences and habits.At this writing, 15 states have enacted laws that restrain employersfrom prohibiting legal activities as a condition of employment. Forexample, Colorado law makes it "a discriminatory or unfair employmentpractice for an employer to terminate the employment of any employeedue to that employee's engaging in any lawful activity off thepremises of the employer during nonworking hours...." Other statesare considering bills that prohibit employment discrimination basedon off-duty smoking. The ACLU supports these efforts.Should employers ever have the right to discipline their employees?Absolutely. Employers have the right to expect an honest day's workfor a day's pay. They have the right to expect that their workerswill not be drunk, drugged, or too fatigued to perform their jobs.They have the right to set performance standards, and to expect thosestandards to be met. They also have the right to discipline anddismiss employees for just cause. Even if all the protective lawsdescribed in this briefing paper were passed in every state,employers would still retain the right to discipline and dismiss anyemployee whose job performance was lacking.But wouldn't recognition of liberties in the workplace damage theAmerican economy?There is no conflict between free enterprise and civil liberties inthe workplace. Free enterprise should not be taken to mean thatevery corporation is a sovereign republic unto itself, whose only lawis the whim of the current CEO. Employers must be free to decidewhat products to make (or stop making), what factories to operate andwhere to locate those factories, what prices to charge, and how manyworkers to hire. But they can make such decisions without tramplingon their employees' rights to free speech, privacy and due process.The fact is that employers in most other Western industrializednations, as well as in Japan, are required by law to respect therights of their employees. Nonetheless, those employers' businessessurvive and prosper. Moreover, several American employers includingsome of the nation's most successful corporations, already guaranteetheir employees' civil liberties without affecting the bottom line ofprofits. Those employers believe that respecting employees rightsboosts morale and, thus, raises corporate performance.It is ironic that the United States, with its long professed respectfor individual rights, has not yet extended Bill of Rightsprotections to the largest remaining group of forgotten citizens --American workers. It is time to right that wrong.-----from The American Civil Liberties Union132 West 43rd StreetNew York, N.Y. 10036(212) 944-9800