Power in the Employment Relationship: Why contract law should not govern at-will employment

At-will employment is the most common kind of employment relationship in the United States. When employment is “at will,” the employer and employee have a right to walk away for any or no reason at any time. The common law—the law made by judges when deciding cases—presumes that employment is at will unless the parties provide otherwise.

This paper critiques the common tendency of courts to label and attempt to treat at-will employment as a “contractual” relationship when resolving employment disputes. At-will employment is not contractual, and labeling and trying to treat it as such makes it harder to regulate employment, reinforces and legitimizes the inherently unequal power between employees and employers, and disguises political issues as doctrinal ones.