A great terror faced by employees every day is getting fired. In these tough times, employees are being cleared away like fallen leaves. Those of us who work without the protection of a union (almost all of us) are subject to a (in my opinion, pernicious) legal doctrine: employment-at-will which says —more or less – that the boss can fire any of us for a good reason, a bad reason or no reason at all. (In theory, there are limits: age for discrimination, for example, is forbidden; but boy is it hard to prove!)

In my experience, the boss’s freedom to fire workers at whim is the most cherished of prerogatives (But see Ellen Dannin’s post arguing that bosses would be better off without it ). Although the ACLU is against it, the employment at will doctrine is alive and well especially here in New York.

New York State’s highest court, the Court of Appeals, recently reaffirmed the doctrine in the case of some financial service workers who said they’d been promised they wouldn’t be fired as a result of a merger; they relied on the promise; they were all fired. Tough noogie, said NY’s high court in Smalley vs.Drufus Co. Such false promises do not give employees a right to not be fired.

In only three employment setting are employees protected from arbitrary firing: a union (where terminations may occur only for “just cause,”) the civil service (where permanent employees have the right to contest terminations through a hearing process and in court) and in educational settings (where tenured teachers may not be termination without a showing of significant misconduct).

Arbitration, the late great Supreme Court Justice William O. Douglas said, was the common law of the shop. Most of us, however, work in essentially lawless settings. Isn’t it long past time to make bosses play fair? In a season in which NYS unions can expect an especially favorable hearing from the State Senate, abolition of the employment at will doctrine in NY would be a great advance. If bosses were required to treat their employees fairly, union organizing campaigns would be greatly facilitated. Will unions focus on this issue?