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“Employment at Will and Due Process” by Patricia H. Werhane and Tara J. Radin: Article Critique Essay

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Updated: Sep 28th, 2021

We live in a legal society, so we have to obey its rules. Everybody has to face the problem of employment sooner or later because everybody has to earn money and develop personally. It is not always easy to find a job that would suit all the demands of a would-be employee. In most cases, people first think about salary and opportunities for promotion. But sometimes we may fail to take into account the importance of the sector we are going to work in.

The topic of this article Employment at Will and Due Process is the formal ethical treatment of firing and hiring employees. As Werhane and Radine state, employment at will (EAW) is the set of rules which determine when employers may dismiss the employees at will. It may be done “for good cause, for no cause, or even for causes morally wrong”. That is why the employees at will are always under the threat of being discharged. But on the other hand, it means that an employee is free to quit his job for any reason or for no reason at all. When an employee chooses to take a job he voluntarily takes certain responsibilities upon himself, and he is aware of the fact that he is an employee at will.

The authors of the article state that the majority of all employees (that is about 60%) belong to the private sector in the USA. That means that they can not appeal employment decisions and have no rights to administrative due process. “Due process is a means by which a person can appeal a decision in order to get an explanation of that action and an opportunity to argue against it”. As for the employees of the public sector they have guaranteed rights and are protected by constitutional guarantees. The public sector employees are protected from downgrading, transfer, or firing with no cause. “Due process is guaranteed for permanent full-time workers in the public sector of the economy, that is, for workers in local, state and national government positions”. So as we see how our citizens cannot protect their rights equally.

In the article, the series of arguments that defend the right to due process for all employees is presented. The authors also argue about the distinction of private and public sectors: “Our economic system is allegedly based on private property, but it is unclear where “private” property and ownership end and “public” property and ownership begin”. It is clear that it makes impossible the application of constitutional guarantees for “at-will” employees.

EAW is often defended on grounds of usage.

From a utilitarian perspective, hiring and firing “at-will” is deemed necessary in productive organizations to ensure maximum efficiency and productivity, the goals of such organizations. In the absence of EAW unproductive employees, workers who are no longer needed, and even troublemakers, would be able to keep their jobs”

The authors assert that this can slow production and may be harmful to other employees.

We know that the application of EAW is supposed to guarantee the protection of equal freedoms for employers and employees. “But the arbitrary treatment of employees extends prerogatives to managers”, and these prerogatives are not impartially available to employees.

In conclusion, Werhane and Radine give arguments against EAW. It is a well-known fact that every day lots of employees are fired for no reason. The authors of the article offer that the distinction between public and private sectors should be clearer. They also believe that constitutional guarantees should be extended so that to protect all the citizens. Businesses should be convinced that due process is absolutely necessary.

If due process is crucial to the political relationship between the individual and the state, why is it not central in relationships between employees and corporations since at least some of the companies in question are as large and powerful as small nations?

But from the authors’ point of view, this task is still to be completed.

So the question to solve is if the application of EAW is morally justifiable in our present economic situation. I think that if all employees are equally protected by law, EAW still can be practiced in the private sector. In such a case the distinction between private and public sectors wouldn’t be so important. If everybody knows that he can protect himself from any alleged violations and deprivation of his rights our society can really be considered to be legal. EAW may be applied because it keeps the critical balance between freedoms of employees and employers, but all the citizens must be equally protected by Constitution irrespectively of the sector they work in. I agree that this problem is not solved yet.

It is clear that every individual is free to protect his rights. In order to find moral grounds for personal freedom let’s consult the philosophy of libertarians. Libertarianism is a political philosophy, the main idea of which is that governmental power should be combined with optimum individual liberty. To libertarians, the prosperity of individual human beings is a guarantee of the prosperity of society as a whole. Liberty means being free in action, this includes freedom of speech and assembly, freedom of association, economic freedom, freedom of ownership, etc. It also promotes personal responsibility for people’s own bodies and property. Everybody’s free to do what he wants if only he does not break other person’s rights. That means that any initiation of force, any violence against another person is a violation of the central principle of liberty. As for self-defense, it does not provoke the force and that is why it is considered to be a reaction to the danger which is initiated by another person. Thus the main function of government is to protect individuals from violation of their rights. Society must allow individuals to enjoy economic and political liberty. To libertarians, these are the main factors for everybody’s happiness.

Though some scholars think that libertarianism has much in common with anarchism I do not agree with it. I think if the main principles of this philosophy were put into action many problems of our society would cease to exist. As for EAW application in modern economics, “at-will” employees would be able to feel free from moral violation from their management. The application of EAW correlates with the idea of economic freedom which is suggested by freedom of contract. “At will” employee is free to quit his job whenever he wants to, and nobody can force him to stay. So I think that the ideas of libertarianism are very helpful for all spheres of modern life, including the economy of our country.

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IvyPanda. (2021) '“Employment at Will and Due Process” by Patricia H. Werhane and Tara J. Radin: Article Critique'. 28 September.

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