Three Gifts Workers Should Stop Giving Their Employers – Part 2: The Gift of At Will Servitude

Generally speaking, workers are, in the absence of some agreement to the contrary, “at will”. I’ve written about what that means in some detail elsewhere. But, in fact, most people already know what this means: your employer can fire you, any time, without advance notice, for a good reason, a bad reason, or no reason at all (so long was it is not an illegal reason, such as race discrimination). In my view, a self-respecting person should be reluctant to agree to work under those conditions. Just because the law says you are at will in the absence of an agreement to the contrary doesn’t mean you shouldn’t insist your employer agree to the contrary, or, conversely, that you should give your employer the gift of working under those conditions. In the hiring process, consider proposing that you work a 90-day no-fault probationary period but that, if the employer is satisfied with your work at the end of that time, your employer agree not to fire you without good cause. Afraid to ask? OK. I get it. Do you want your children to be afraid to ask? And, if you ever have to decide whether to join a union, remember this: the most basic thing that a union does is to protect its members against arbitrary termination; its members are not “at will” employees.

I’m not proposing that the law be amended to switch the presumption about at will employment; I’m not saying that the government should step in and provide that employees can be fired (after a probationary period) only for good cause – yet. I’m suggesting that workers stand up for themselves and ask — at least ask. If the answer is “no”, you are free to give your employer the gift. Or not.

I do propose, though, that the law be amended to stop exerting pressure on applicants to give the gift of at will service to their employers. When workers are receiving unemployment benefits while they look for a job, the law provides that a worker will lose eligibility for unemployment benefits if “he or she, without good cause, refused to accept suitable employment when offered to him or her…” California Unemployment Insurance Code Section 1257(b). Refusing to accept a job on the ground that it is offered “at will” is not considered “good cause” under this subdivision; so, the law currently provides that an applicant will lose unemployment benefit eligibility if the applicant declines a job because the employer insists on receiving the gift of at will servitude. This provision ought to be amended to provide that employer insistence on at will servitude is good cause to decline a job offer; because it is.

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