Kokua Line

By June Watanabe

Monday, March 10, 2003

State law implies
‘at-will’ employment

Question: Can you please help me spread the word about the at-will employment law? I worked for 25 years and had never heard of it. By the time someone learns about it, it is too late. Fired without recourse. Ninety percent of my friends and family had no idea the law existed, and several still don't believe it's true. I feel the law is fair, but my point is, if I knew about it sooner, I would have established a contract or been better prepared.

Answer: "At-will employment" is part of the common law, something that evolved from the termination of the master-servant/slave relationship but which is a hot labor issue across the nation.

In Hawaii there is no at-will employment law, said Tom Jackson, spokesman for the state Department of Labor & Industrial Relations.

It's "what's not in the law" that prevails, he said, meaning that in the absence of some agreement relating to job security, an employer can hire and fire someone "at will" -- without a reason or cause.

"Basically, here, we don't regulate the hiring and the firing," Jackson said. "There is no (Hawaii) law that protects an employee from being fired other than for discrimination, work-related injury or illness. Those are the only three areas that the state will come in and help you if you're fired."

However, there are federal laws that offer broader protection, such as giving workers the right to form or join a union, the right to refuse hazardous work and for whistle-blowing.

William Puette, director of the Center for Labor Education and Research at the University of Hawaii-West Oahu, "guesstimates" that 70 percent of Hawaii workers are at-will employees. That's figuring 23 percent to 24 percent are covered by collective bargaining and that the rest have negotiated their own agreements.

Virtually every survey has shown the No. 1 reason people join unions is not for higher wages, but for job security, to protect them from "arbitrary and capricious termination, which is the right of employers under the at-will doctrine," he said.

Puette said the history of at-will employment goes back to the days of masters and servants. Hawaii had a masters-and-servants act until 1900, he said. But following the overthrow of the monarchy, it was considered a violation of the U.S. Constitution.

"The whole plantation history changed in 1900 as a result of that because the old contracts that they brought people (immigrant workers) over here on, which were like indentures, were no longer viable," he said.

The relationship between employer and employee was thrown "wide open," Puette said. "Anybody can terminate a relationship at any time, at will. So I can quit at will, you can fire me at will ... without having to have a reason."

Meanwhile, laws have evolved to offer workers more protection, he said. The Civil Rights Act, which initially addressed race, color and creed, for example, was expanded to include age, disability and other criteria. "There's been a growth in the number of protected classes that now you can't just fire somebody at will for," Puette said. "But it's still very specific."


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