"The Law of Termination" and Forums for Dispute Resolution
To prepare to write an article discussing the debate about litigation, self-regulation, or arbitration as the appropriate forum for resolving employment disputes, I've recently read a series of new articles.
Jeffrey M. Hirsch, The Law of Termination: Doing More With Less is an interesting, counter-intuitive, and somewhat provocative article.
Hirsch advocates replacing all state and federal laws governing termination with one federal law requiring that employees may not be terminated without just cause. He proposes this as a pragmatic solution to the problem employers have of keeping abreast of and complying with the multitude of laws governing termination.
The details of the proposal include the following. An employer would need to "provide reasonable notice to the employee [prior to termination] and allow time for the employee to rebut the reasoning or possibly remedy performance problems [that] may lead to termination." The burden would then be on the employee to show that termination was not "actually motivated by a reasonable business justification." A claim would be enforced in any court of competent jurisdiction, state or federal. Hirsch is open to suggestions about the details because his aim is simply to foster a more pragmatic system that "better enforce[s] the goals of the current system of termination rules . . . ."
I have the following thoughts about the article and Hirsch's proposal.
Hirsch extensively discusses and defends well his choice of enforcement by judges rather than arbitrators. He, however, discusses labor and employment courts and administrative agencies more briefly. It seems worthwhile to explore labor and employment courts more extensively even if they are not politically feasible because, as Hirsch recognizes, the proposed termination law is unlikely to be politically feasible anyhow. Additionally, an administrative agency might provide some of the benefits of arbitration without its detractions. I hope to write about administrative agencies as a forum for resolving employment disputes. While extended discussion of these forums may be beyond the scope of Hirsh's article, I will rely on his limited discussion of them as one valuable starting point for my thoughts on the topic.
I also wonder whether terminations based on discrimination on the basis of invidious categories should be lumped in with a just cause standard. The proposal to treat gender and race discrimination simply as one illegitimate business reason reaches the heart of the dispute over whether laws promoting race or gender neutrality can effectively eliminate discrimination against women and racial minorities. Because of the systemic nature of these violations, don't we want to discourage and punish this type of unlawful termination even more than other types of terminations that are not for just cause?
Additionally, I hope that Hirsch will reconsider the burden of proof he proposes. Perhaps placing the burden on the employer to prove the termination was actually motivated by a reasonable business justification makes more sense, even with the proposed notice requirement. The employer typically has better access than the employee to the information that proves that the given reason was the actual reason for termination.
I would also like to see more statistics or anectodal evidence supporting the argument that providing employees notice that they are not meeting expectations results in a situation where employees correct the inadequacies and remain employed. I have lingering doubts that mandating notice instead simply provides employers an opportunity to discover and document some valid reason for terminating an unwanted employee.
Finally, more extensive discussion of the number of employers that employ people in multiple states, for which this proposal would simplify matters, might be helpful to add in support of the proposal.