University of Georgia School of Law
In what follows, we critique at-will employment by focusing on the baselines that underlie the analysis. Our ultimate goal is to develop persuasive arguments to move courts and businesses to provide greater job security for workers. One possible reason the courts have been so reluctant to change employment law is that judges analyze job security issues from the standpoint of a series of baselines which have the effect of creating a presumption against job security that is almost impossible to overcome. These baseline assumptions effectively place the burden of proof on advocates of job security.
Judges fail to recognize that these baseline questions exist, the extent to which choice of a baseline may predetermine the outcome of policy analysis and legal reasoning, and the moral and political character of choices among alternative baselines. Moreover, prevailing baseline asumptions have the effect of privileging the status quo, especially the existing distribution of power in the marketplace. The failure to analyze and justify baselines therefore has a political import. Prevalent baselines make managerial power seem natural and inevitable while job security appears to be a meddlesome interference in the free market; rather than a correctable social problem, workers' insecurity is seen as a necessary cost of progress and freedom. Thus, judges who would otherwise be sympathetic with workers' claims feel unnecessarily constrained to rule against them. Alternative baselines implicate competing visions of the good society. To do justice to workers' claims to job security, we must confront directly the value choices involved in alternative baselines and the social visions they embody.
Jack M. Beermann & Joseph William Singer,
Baseline Questions in Legal Reasoning: The Example of Property in Jobs
Georgia Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2308