It's All Too Easy to Get Fired in America: In 49 of 50 States, You Can Be Fired for Any Reason
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Don’t get too comfy at your desk, your job might not be as secure as you think. Anecdotal reports from labor lawyers and a few polls show that most Americans believe their bosses must have a good reason to kick them to the curb. We labor under the illusion of what Harvard labor economist Richard Freeman calls, “there’s-got-to-be-a-law syndrome.” We don’t want to believe someone can be fired because her boss finds her sexually irresistible. In every other industrialized democracy, that couldn’t legally happen, but in 49 of the 50 states there is no law requiring a just or reasonable cause for employee termination.
Most Americans can be legally fired for almost any reason. Private sector workplace relationships tend to operate under the standard of employment-at-will, which means you can be fired for the color of your shirt, your political views, supporting your favorite sports team or for refusing to fetch your boss a cup of coffee. The Bill of Rights does not apply to your office.
The protections in place are limited. Title VII of the Civil Rights Act prohibits “employment discrimination based on race, color, religion, sex and national origin.” (But not sexual orientation: while 21 states have anti-discrimination laws on their books, it is legal under federal law to be fired for your sexual preferences or gender identity.) The National Labor Relations Act theoretically protects workers trying to form a union or engage in “other concerted activities for the purpose of…mutual aid or protection,” but the law is notoriously weak and its sanctions rarely deter employers. Any union contract worthy of the name will include a just-cause clause, protecting workers from arbitrary termination while leaving room for management to act in case of economic necessity or poor job performance. But 93.4 percent of private sector workers don’t have a union, and serve at the whim of their employers.
Unless they live in Montana.
In 1987 the legislature passed the Montana Wrongful Discharge Act, which states that (after a six-month probationary period) a worker can only be fired for a good reason, like “failure to satisfactorily perform job duties, disruption of the employer's operation, or other legitimate business reason.” That’s awfully similar to the laws protecting the workers of almost every other industrially developed democratic nation on the planet (as this management-side presentation warns); protections enjoyed by nations like the Netherlands -- where a McDonalds employee can win back pay after being fired for giving an off-duty co-worker an extra slice of cheese with her burger (the company was required to cover court costs, too).
How did Montana become a socialist hellscape? The same way most laws are passed: With the backing of the organized business community. In early 1982 the Montana Supreme Court decided that an implied covenant of “good faith and fair dealing” exists when an employer hires someone. Later rulings determined if an employer disregarded that tacit agreement, the spurned worker can sue to recover lost wages and benefits, along with compensatory and punitive damages. The court, in effect, killed employment-at-will in all but name, and workers started suing the hell out of the bosses. (Much of the historical and legal background on the law is found in Barry Roseman’s American Constitutional Society’s legal paper on the law and its effects on employment in Montana.)
“One of the reasons why the bill was necessary is that we did not have employment-at-will in Montana, even though the law said we did,” says Gary Spaeth, former Democratic legislator and lead sponsor of the 1987 law. “There were some outstanding judgments in the neighborhood of $200,000 to $400,000 that were passed down by juries. It was very inhibiting to how you operated your business in the state of Montana, creating almost a fear [of firing] among employers.”