The burden of proof lies upon those who wish to defend the morality of employment-at-will. The arguments typically used to support this doctrine are not successful. An employer has the right to terminate for just cause or if her decision can be justified in terms of considerations of responsible business and personnel policy. An employer does not, however, have the right to dismiss an employee arbitrarily.
- Since we as citizens value fair treatment and due process it is reasonable to think these rights should extend to the workplace. Any denial that these rights extend to the workplace needs to provide reasons for thinking this is so.
- The attempt to ground employment-at-will in common law fails because: (a) the law is in process of being revised, and (b) more fundamentally what is legal and what is moral do not always coincide.
- The attempt to argue that the employer's right to terminate at will is balanced and made fair by an employee's right to resign at will fails because: (a) there is generally an inequality of power such that the employee suffers far more harm from being terminated than the employer would suffer if the employee resigned, and (b) contract theory implies an obligation of good-faith dealing and an arbitrary dismissal might well constitute a break of good-faith.
- The attempt to ground employment-at-will in an employer's property rights must come to grips with the possibility that an employee might acquire property rights in her job. It must also come to grips with the possibility that any grounding of the right in social utility must face the empirical issue of whether the social utility of employment-at-will is greater than one in which an employee can only be terminated with just cause. (Note: It is not clear that Hiley is correct in linking this latter argument to the issue of property rights)
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