Job Security? It’s Just an Illusion : Employment: If your boss dislikes what you read, you could be sacked. The right to fire without valid reason flourishes.

Under a 19th-Century judge-made common-law doctrine formally described as “employment at will,” workers in the United States could be fired for any reason or no reason at all. Many scholars now believe that employment at will is a dead legal doctrine. They accurately point to 20th-Century state and federal laws limiting employer discretion to terminate employees, large jury awards for some terminated employees and growing numbers of court filings under state and federal laws prohibiting arbitrary discrimination.

It is also true that courts have made exceptions to judge-made employment-at-will doctrine. Outrageously arbitrary discharges that affect public policy--like the discharge of an employee for refusing to provide perjured testimony in the employer’s interests, are now illegal under California common law, for example. A few statutes ban similarly arbitrary discharges, but only when the public has an interest in the outcome. Thus, a California statute makes it unlawful to fire an employee for serving on a jury, because the public has an interest in making jury service minimally disruptive for jurors.

Yet, despite these statutory and judge-made exceptions, the law of employment at will still dominates the American work place. Its statutory and common law exceptions create no more than a contrary illusion.

The true measure of employer discretion to terminate employees at will is not the number of statutes and common-law decisions making exceptions to employment at will. It is what those statutes and exceptions cover.

Add up all the state and federal statutes banning discrimination on grounds of race, sex, religion, age, national origin and handicap. Include the federal law prohibiting discrimination because of union activity. Mix all of these statutes with judge-made exceptions to employment at will on public-policy grounds. Combined, they still ban no more than a tiny fraction of arbitrary reasons for which an employer may lawfully discharge employees.

For every private-sector employee fired for reasons made unlawful by a discrimination statute or a narrow exception to common-law employment at will, thousands may be discharged for arbitrary reasons not covered by statute or the common law. John Doe and Mary Poe, for example, could not be discharged for reasons of race or sex, but both could be lawfully fired by their corporate employers for reading a newspaper the employer did not like. They could collect no more than a few weeks of unemployment compensation. Poe and Doe could both be fired for theft of company property--even though they stole nothing. Except in Montana--the only state with a law making discharges “without just cause” illegal--no statute would cover their cases, nor would any exception to employment at will. So outside of Montana, no legal forum would be open for them to prove their innocence and recover their jobs.

If Poe and Doe were covered by collective-bargaining agreements, their union could take their cases to arbitration and probably win. But that possibility would govern today for only 11% of the private-sector work force, and that figure will shrink to around 6% by the year 2000 if many prominent economists are right.

Employment at will, long dead and buried in the world’s other industrial democracies, is alive and well in the United States. Its viability is enhanced by the illusion of its death.