Thursday, May 23, 2013
Normally here at Workplace Prof Blog, we at least like to pretend that we have some shame when it comes to self-promotion by getting fellow bloggers to post on each others' papers. I'm going to break this norm, however, because this post is as much a rquest for assistance as anything else. Sam Estreicher (NYU) and I have posted on SSRN our article, Comparative Unjust Dismissal Law: Reassessing American Exceptionalism, which will appear in the North Carolina Law Review.
I've copied the abstract below, but one aspect of the article that I want to focus on here is our attempt to give as rich a picture as we can on how unjust dismissal laws are actually operating in various countries. This attempt has involved, among other things, trying to find data on enforcement and talking to local experts. As you can see from our acknowledgements footnote, we've already received a tremendous amount of help from a large number of people--and hats off to all them once again for all their great assistance. However, we've had trouble finding good data for a lot of countries and, especially with an article this long, have no doubt messed something up or overlooked a relevant issue. So, our request is that if you have any suggestions, corrections, comments, or leads on useful data, please let me know (you can email me at firstname.lastname@example.org) so we can make the change before publication. To the abstract:
Commentators have long debated the merits of the United States’ "at-will" rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require "cause" for most dismissals.
Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.
This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.