Meeting the Wrongful Discharge Challenge: Legislative Options for Small Business
梳理了雇佣自由原则的演变，分析小企业管理者应对不当解雇诉讼的替代方案，并讨论为小企业制定有效立法策略的关键问题。
The employment-at-will doctrine, which holds that employer can terminate employees for good reasons, bad reasons, or no reasons all, was long considered employer's property right. However, the employer-employee relationship has changed noticeably during the last 50 years. Joint determination of the relationship between employers and organized employees through collective bargaining is now protected right in the United States. Federal and state legislation also shields employees from many forms of discrimination. These protections have modified the century-long, laissez-faire presumption borne of the Industrial Revolution--that employment is terminable at Termination has been likened to economic capital punishment (Summers 1976), and the protection from unjust discharge has acquired the force of a moral and historical imperative (St. Antoine 1988). Within the last decade, most state courts have fashioned mechanisms that have constrained management's traditional at-will prerogatives. Unfortunately, there is little consistency from state to state regarding the legal rights of both employers and employees with respect to dismissal. The ensuing disarray of rulings prompted one judge to write that employment law has become an amorphous mass of confusion. This uncertain environment encourages increasing numbers of employees to bring lawsuits alleging wrongful termination (Odiorne and Brunello 1989). As result, employers are less willing to fire even the most unproductive workers. In other words, paranoia has replaced power (Fulmer and Casey 1990). In the midst of such confusion, small business employers may still cling tenaciously to employment-at-will tenets, unaware or undeterred by the risks associated with such action. But society's increasingly adverse reaction to the at-will doctrine warrants new legislation that strikes balance between managerial discretion and employees' reasonable expectations of job security. While some scholars have examined how the employment-at-will doctrine has affected the small business community (e.g., Holley and Wolters 1987; Holoviak, Weigle, and Bright 1984), no one has emphasized the legislative alternative. Since the small business sector has vested interest in helping to formulate legislation that modifies traditional management prerogatives, this article will (1) trace the erosion of the employment-at-will doctrine, (2) examine the alternative responses available to small business managers for coping with these developments, and (3) discuss the critical substantive and procedural issues involved in determining effective legislative strategy for the small business community. THE ERODING AT-WILL DOCTRINE In the absence of contract indicating the term or conditions of employment, employers traditionally have possessed the right to dismiss employees without having to provide reasons for that action (at will). Similarly, employees have the right to resign for any reason. In our nation's earlier stage of rapid industrial growth demand for employment was high; therefore, this unfettered right to fire employee arguably created negligible costs for employer and employee alike. Employers could easily find new employees, and employees easily find new jobs (Feinman 1976). The at-will principle still receives some support (e.g., Epstein 1984, Catler 1983, and Power 1983), and the presumption that employment (and termination) is at-will remains deeply imbedded in the domestic workplace. However, critics of the doctrine view the at-will rule as anachronistic, inconsistent with the realities of contemporary economic life, and harsh; and the courts have supported this latter view. Statutory Limitations Over the past several decades, number of federal statutes have restricted the presumed right of employers to dismiss employees will. The National Labor Relations Act of 1935, for example, not only established the legal right of employees to bargain collectively, but also invited just cause restraints on dismissal. …