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Employment Rights - Due Process: An Ethical and Effective Method

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Employment Rights

Due Process: An Ethical and Effective Method

A major controversy in modern society involves the rights of employees. There is an ongoing debate between the "Employment at Will" (EAW) and "Due Process" perspectives of employment, which are adequately discussed in the writings of Epstein and Werhane. The first goal of this paper is to define both of these approaches dealing with employment. After both have been defined, I will prove that "Due Process" is the most ethical and effective method for today's workplace.

The process of Employment at Will, defended by Richard A. Epstein, is a common-law doctrine which gives employers the rights to treat their workers however they consider necessary. Employers have the ability to fire or hire, demote or promote any person at any time. Workers who are affected by this principle range from part-time members of staff to CEO's, and make up approximately sixty percent of the private sector work force. It is understood, that when Employment at Will is enforced, employers "may dismiss their employees at will...for good cause, for no cause, or even for causes morally wrong, without thereby being guilty of legal wrong". (255)Employees who are not protected by contracts or explicit laws have no right to appeal or demand explanations for decisions made by their employer. This in turn means that the employer has no obligation to provide any justification for their pronouncement. Employment at Will is accepted under the judicial system and exceptions are only made when an employee is reinstated to their job. A reinstatement only occurs when there is a stated violation of the law, such as prohibited behavior on the part of the employers. For example, if a manager demands an illegal requirement of his employee, and the employee's refusal leads to termination, he is granted the right to take his employer to court. Another instance where an employee cannot be fired at will is if their termination is due to discrimination. "The Title VII of the Civil Rights Act of 1964 offers extensive protection to all individuals against discrimination." One cannot be fired if it is in regards to their race, sex, religion or national origin. The law therefore, is somewhat of a protective blanket for employees at will and provides greater protection from inappropriate dismissals. In addition to the law, certain companies have introduced grievance procedures, which are ways of resolving employer and employee disputes. These procedures however, are not compulsory and are solely based on whether the employer voluntarily wants the presence of these practices in the workplace. Therefore the employer still has the lone right to arbitrarily dismiss or demote the employee without any reasoning whatsoever.

The method of Due Process, defended by Patricia H. Werhane, is the second procedure concerning employment decisions discussed in this essay. Due process is a means by which employees have a right to demand an explanation for certain decisions. It gives them a chance to appeal an outcome which they feel unjust and in return requires the employer to give reasoning as to why he or she has chosen a specific outcome. Due process provides a set of rules by which all faculties and administration must abide by and it stipulates all matters involving the work force. There are two significant forms of due process. "Procedural due process is the right to a hearing, trial, grievance procedure, or appeal when a decision is made concerning oneself," (255)where substantive due process "is the demand for rationality and fairness: for good reasons for decisions."(255) Substantive due process was not widely acknowledged in previous years, primarily because it was found to be irrelevant in the workforce. Nevertheless, this procedure has been gaining greater acceptance in recent times. "Some courts have found that it is a breach of contract to fire a long-term employee when there is not sufficient cause." It is simply unjustifiable to terminate an employee without a good reason for ones decision, particularly if they have seniority in a company and have been loyal during employment. The method of due process is practiced in the public sector where the employees are bestowed with assurance and protection. They cannot be fired, transferred or demoted, unless there is a just reason behind the employer's decision, and even then, if they feel it necessary, they have the right to appeal or demand further explanation for their dismissal. If these regulations of due process are violated, there will be consequences involving the court.

I believe that the method of Due Process is the most ethical and effective procedure when compared to Employment at Will. Through the arguments of fairness, human relations and utility relating to the subject of employment, my thesis will be proved.

Richard A. Epstein claims that in all areas concerning the importance of freedom, the Employment at Will procedure allows grown individuals to make choices they believe are necessary without government intervention. He asserts that if persons are mature enough to decide who they can marry, where they live, and how they go about their daily tasks without due process, then there is no reason to implement it in the area of employment. He states that "so long as it is accepted that the employer is the full owner of his capital and the employee is the full owner of his labor, the two are free to exchange on whatever terms and conditions they see fit." (261)He claims this is fair situation, but I must disagree. A person's labor is his property because his ideas, thoughts and the effort he puts into his work are all available for trade in order to generate an income. However, the activity of working itself cannot be sold. A person can be differentiated by the material possessions he owns. One might remember him by the coat, or bag he wears, yet he cannot be distinguished by working. For example, in a situation where an employer decides to terminate an employee to reduce operating costs, the reasoning can be defined as proprietary. The employer is firing at will and therefore treating the employee, whom he hired as a person, as merely an object. Dismissing employees



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