The questions of what one’s rights are in the situation where your employment has been terminated is one of the most popular types of questions in employment law. Obviously, it is one of the areas of employment law which is most likely to generate conflict and hence it is regulated by a number of courts and tribunals at both federal and state level in the United States. Most employers want to be able to terminate an employee with the greatest degree of freedom as possible where it is necessary for the business to do so in the interests of the pursuit of profit. Maybe an employee is no longer required, maybe they are incompetent or have engaged in some form of misconduct. Whatever the reason, in such circumstances the employer wants to be able to terminate their employee with as much flexibility as possible. However, if an employee is essential to the survival of the organisation, the employer will want to make it complicated, difficult and costly for the employee to leave the organisation, especially if they might go to work for a competitor. In relation to termination of employment, often it is the goal of the employee to want to have as much freedom to move between jobs as possible as well as have some degree of job security in their jobs. This desire has led to the campaign by employee movements to restrict as much as possible the rights of employers to terminate their employment.
In almost all jurisdictions, the state intervenes to regulate the activity of the termination of employment. In most states of the United States, there are what is known as ‘at will’ employment contracts which means that the employee is basically in the employer’s service at the pleasure of the employer and there is no inherent right to a ‘job’. It is recognised that in the United States when compared with the rest of the world, there is a libertarian style of employment law which is particular to the United States because of its particular style of market capitalism which emphasises the need for the market forces of supply and demand to determine the characteristics of the labour market rather than a mandated rule or obligation imposed from above by the state.
Interestingly, the approach in the United States is in sharp contrast to what is generally accepted as the international view of employment law philosophy with regard to termination of employment found in the International Labour Organisation Termination of Employment Convention 1982. Article 4 of this convention says that employment shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Also, Article 8 of this convention requires that workers should be allowed to challenge the decision to terminate their employment.