ArticlePDF Available

The Duration of Indefinite Employment Contracts in the United States and England: An Historical Analysis

Authors:
A preview of the PDF is not available
... It follows that there are no employer obligations to provide advance notice or compensation for dismissed workers. This has been a long-standing rule governing the termination of employment in the United States since the last half of the nineteenth century (Shapiro and Tune 1974;DeGiuseppe 1981;Jacoby 1982). It has limited the ability of politicians with serious fear of losing elections to launch legislation restricting the management right to layoff because it was enshrined in the decisions of high courts at both federal and state levels. ...
... Ballam (1996) opposes the traditional view, arguing that Wood's rule reflected the legal practice of the day. AsJacoby (1982) suggested, however, Wood may genuinely have omitted a few court decisions that did not accept the employment at will. On this debatable issue, it would suffice to note that courts' views before 1877 were at most nebulous and the employment-at-will doctrine became clearly predominant later on. ...
Article
Why do countries have different levels of employment protection that make dismissals difficult? The recent comparative political economy literature is divided over whether labor protection is an outcome of class struggles or employers' rational choices. This dissertation provides an alternative explanation focusing on the role of counter-majoritarian political institutions. While theories and empirical evidence do not support the argument that some employers may support employment protection as government regulation, the power-of-labor-resources model is also limited because it does not explain the deviant cases where politically weak labor co-exists with strong employment protection. This study offers an analytical model in which vote-maximizing politicians respond to the popular pressure to establish employment protection that mainly comes from organized labor and/or the rising risk of middle-class job loss. It is argued that even if the popular pressure is strong, political institutions designed to limit the rule by the many - federalism and judicial review - constrain the popular demand for employment protection to become legislation. The empirical chapters examine the United States as a weak-employment protection case, Germany as a strong-employment protection case, and South Korea as a moderately strong-employment protection case. They demonstrate that the American political system where political power is dispersed to different branches and levels of government forestalled the rise of employment protection, while South Korea's highly concentrated political system responded to the public perception of declining job security by maintaining restrictions of layoff. Germany represents a distinct model of federalism where labor legislation is centralized and subnational governments rely on extensive measures of fiscal equalization. In this type of federalism voters can readily attribute the responsibility of providing job security to the central government. Therefore, the German federalism has not provided effective checks on the popular pressure for employment protection.
Chapter
A ‘labour market’ implies not just greater competition and mobility of resources, but also the specific form of the labour relationship that is described by the idea of ‘wage labour’ and its legal expression, the contract of employment. The ambiguity of the employment relationship, its dual nature in terms of equality and reciprocity on the one hand and control and subordination on the other, has led many to doubt whether it can be regarded as a contract in the normal sense: ‘in its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by that indispensable fiction of the legal mind known as the contract of employment’ (Kahn-Freund 1983: 18). The nature of the legal transition that accompanied the emergence of the modern labour market in Britain was complex. While legal controls over wages and trade regulations were indeed removed in the first half of the nineteenth century, other aspects of the system of labour regulation were reinforced. The Master and Servant Acts, which gave expression to the subordinate status of the worker within the employment relationship, far from repudiating the framework of regulation contained in the Elizabethan Statute of Artificers grew out of that body of legislation and were designed to remedy what were seen as some of its central deficiencies. The labour market was founded on the use of legislation as an active instrument of economic policy.
Article
This article explores the issue of the future of the employment-at-will doctrine. Statutory exceptions began eroding this doctrine during the mid-twentieth century. The most significant erosion started in 1959 with the development of the wrongful discharge tort. First recognized when an at-will employee was fired for refusing to do an illegal act as ordered by his supervisor, wrongful discharge then was expanded to include terminations for performing required public duties, for exercising job-related legal rights, and for whistle-blowing. This article explores the history of the development of the tort of wrongful discharge as well as recent developments that further limit employers' freedom to fire at-will employees. The article concludes with a prediction about what will be the next stage in the employment-at-will doctrine.
Article
Deftly blending social and business history with economic analysis, Employing Bureaucracy shows how the American workplace shifted from a market-oriented system to a bureaucratic one over the course of the 20th century. Jacoby explains how an unstable, haphazard employment relationship evolved into one that was more enduring, equitable, and career-oriented. This revised edition presents a new analysis of recent efforts to re-establish a market orientation in the workplace. This book is a definitive history of the human resource management profession in the United States, showing its diverse roots in engineering, welfare work, and vocational guidance. It explores the recurring tension between the new professional order and traditional line management. Using a variety of sources, Jacoby analyzes the complex relations between personnel managers, labor unions, and government from the late 19th century to the present. Employing Bureaucracy: * analyzes the origins of the modern employment relationship's distinctive features; * combines a variety of disciplinary perspectives, from business and labor history to economics, sociology, and management; * shows the transformation of the American workplace over the course of the 20th century, from market-oriented to bureaucratic to recent efforts to move back to a market orientation; and * provides the single-best and most sophisticated history of the origins and development of the modern "HR" profession. For historians, social scientists, and practitioners, this book is a readable and rewarding study. With the future of work currently under debate, it is critical that the historical process that produced the modern American workplace is understood. Read the Workforce Management Magazine review about Employing Bureaucracy at www.erlbaum.com. © 2004 by Lawrence Erlbaum Associates, Inc. All rights reserved.
Article
For the majority of employees in the US and elsewhere, their job is by far their most important property; with jobs providing their main source of prosperity, social status and individual psychological well-being. While the US political system provides extensive protection to capital, it paradoxically offers only very limited protection to labor. This lack of protection is evidenced, above all, by the fact that the protection afforded to US workers against unfair, capricious or unnecessary dismissals is amongst the weakest of all industrialized nations. The primary agenda of this book is to map out the institutional choices which have prevented the comprehensive, European-style, regulation of dismissal in the United States-and to explore how these choices have been supported, modified and maintained against attempts by US workers to secure greater job security. The book examines the topical issues of dismissal and job security in a roughly chronological analysis which draws on important historical sources.
Article
Full-text available
Introduction My challenge in this paper can be summed up by the following question: “Who's afraid of globalization?” My short answer is “just about everyone, if they have any sense”: CEOs of companies, small business people, local executives of branch plants, fundraisers for charities, practising professionals in law, epidemiology, advertising and finance – and, of course, workers and unions. In fact, since I am being autobiographical, add to my list of fearful Canadians at least one labour law professor. However, like many other people, my own feelings about globalization are mixed. It has turned much of my world upside down, but at the same time, it has provided me with ten years of interesting work. My common sense assumptions about globalization and labour law – and why they had to be revised My work on globalization and labour law began with what seemed like common sense assumptions: that globalization was reshaping the economies of almost all countries, albeit in different ways; that to govern this new economic order, a new transnational legal system would surely emerge; that this new transnational legal system would somehow reproduce at the international level the institutions and processes of our domestic systems of labour law; that en route to this transnational system, employers would likely enjoy significant but time-limited advantages; but that ultimately, transnational labour law – global labour law – would reach the standard we have set for our domestic systems: it would ensure a decent level of social justice for workers and social peace for employers.
Article
This article critiques and extends Michael Burawoy's perspective on the political apparatuses of production by arguing that he fails to take into account the embeddedness of labor control within legal institutions. Through a synthesis with new institutionalism and sociolegal studies the author argues that production regimes using unfree labor are favorable for capitalist labor subordination given their particular historical embeddedness in legal institutions, the other alternatives available for exploitation and capitalists' social embeddedness in local institutions. This is demonstrated through an analysis of how capitalists in the Victorian English pottery industry used law as a foundation for the construction of a factory regime based in unfree labor.
The cases were: Coffin v. Landis, 46 Pa
  • Ibid
Ibid., 265. The cases were: Coffin v. Landis, 46 Pa. 426, 1864; Harper v. Hassard, 113
Peacock v. Cummings, 46 Pa. 434, 1864. Note that other treatises which supported the alternative English rule usually failed to cite relevant American cases. Note 160, supra. 173
  • Mass
Mass. 187, 1873; Peacock v. Cummings, 46 Pa. 434, 1864. Note that other treatises which supported the alternative English rule usually failed to cite relevant American cases. Note 160, supra. 173. Wood, op. cit. 265-266.
Wood placed the burden of proof on the employee since the hiring was 'prima facie a hiring at will
  • However
However, Wood placed the burden of proof on the employee since the hiring was 'prima facie a hiring at will." Ibid., 272. 175. Ibid., 272.
Minurn, 1 Cal. 450, 1851, (monthly pay implied a monthly hiring); Taiterson v
  • V De Briar
De Briar v. Minurn, 1 Cal. 450, 1851, (monthly pay implied a monthly hiring); Taiterson v. Suffolk Mfg. Co., 106 Mass. 56, 1870, (annual salary implied an annual hiring);
In 1888 Wood edited the eighth American edition of Addison's Contracts and let stand Addison's statement of the rate of pay rule
  • Cl
Cl. 462, 1869, (irrelevant). In 1888 Wood edited the eighth American edition of Addison's Contracts and let stand Addison's statement of the rate of pay rule. C.G. Addison, Contracts, Vol. I, Boston, 1888, 629-635.
Adams v. Fitzpatrick, 125 N
  • Merchants 'ins
  • Co
Merchants' Ins. Co. of N. Y, 118 N.Y. 484, 1890; Adams v. Fitzpatrick, 125 N.Y. 124, 1891; Phia Packing & Pray. Co., 4 Pa. Dist. R. 57, 1893; Luce v. San Diego Land and Town Co., 4 C.U. 726,
124, 1894; Rosenberger v. Pac. Coast Rwy. Co., I I I Cal. 313, 1896; Kellogg v. Citizens Ins. Co. of Pittsburgh, 94 Wis. 554, 1896; Heminway and Sons Silk Co
Chamberlain v. Detroit Stove Works, 103 Mich. 124, 1894; Rosenberger v. Pac. Coast Rwy. Co., I I I Cal. 313, 1896; Kellogg v. Citizens Ins. Co. of Pittsburgh, 94 Wis. 554, 1896; Heminway and Sons Silk Co. v. Porter, 94 Il. App. 609, 1900; Gabriel v. Bank of Suisun, 145 Cal. 266, 1904;
Kosloski v. Kelly, 122 Wis In one case the at will result was reached by applying the rate of pay rule to a worker paid on a daily basis
  • Mo
  • App
Mo. App. 114, 1887; Kosloski v. Kelly, 122 Wis. 365, 1904). In one case the at will result was reached by applying the rate of pay rule to a worker paid on a daily basis. Davis v. Barr, 12 N.Y. St. R. 111, 1887. 200. Tyng v. Theological Seminary, 14 Jones & S. 250, 1880; Norton v. Cowell 65 Md. 359,
Resener v. Watts, 73 W. Va Also see note 182, supra. 201. Finger v
  • Lynch V
  • Elimer
Lynch v. Elimer, 24 Il. App. 185, 1887; Resener v. Watts, 73 W. Va. 342, 1913. Also see note 182, supra. 201. Finger v. Koch and Schilling Brewing Co. 13 Mo. App. 114, 1883; McCullough Iron Co. v.