No worker should be fired from their job without a good reason. That’s why we have anti-discrimination laws, which protect Mainers from being fired on the basis of things like age, gender or race.
But this commonsense protection is rendered nearly meaningless because Maine, like most states, has a default system of “at-will” employment that means workers can be fired for no stated reason. If a worker can be fired for no reason, then they can be fired for any reason — even a discriminatory one. For example, a racist manager may not be able to say they are firing a worker because she is Black, but state law allows them to fire their Black workers for no stated reason at all.
This legal loophole places the burden on the worker to prove unfair dismissal and allows a discriminatory employer to discriminate as long as they successfully hide their discriminatory intent.
Workers deserve better. A bill before the Legislature — LD 553, “An Act to End At-Will Employment,” sponsored by Rep. Mike Sylvester of Portland — would establish the right of “just cause” in Maine, meaning employers would have to demonstrate they had a good reason before dismissing a worker. The bill would also establish a straightforward system of progressive discipline for employers to use with employees, culminating with firing only after a series of verbal and written warnings.
This commonsense update to Maine’s labor law would protect workers from unfair firing, create clear procedures for employers, and give weight to Maine’s anti-discrimination laws.
At-will employment creates cover for unfair and discriminatory firings
Although at-will employment is the norm in the United States, it is an outlier among other wealthy industrialized nations. Australia, Canada, the European Union, and the United Kingdom all include protections from unfair dismissal in their employment laws. Within the United States, there are also examples of reforms to the “at-will” system; Puerto Rico and the US Virgin Islands require just cause for dismissals, while Philadelphia and New York City have recently enacted similar protections for certain workers.
Curbing the current at-will system is popular with a large majority of Americans. A 2020 poll found that 68 percent of voters, including majorities across party lines, think employers currently have too much power to fire workers.1
Our at will system does not serve either employers or employees. Employees complain of widespread unfair dismissal. One recent survey found a little under half of all workers said they had been fired for no reason or a bad reason.2 Low-wage workers are especially likely to face arbitrary dismissal; A 2019 survey of fast-food workers found that large numbers of workers had been fired or forced to quit, and that employers did not have consistent expectations regarding performance, attendance, or customer service.3
Employees who feel they have been treated unfairly have very little recourse. In many cases, unfair dismissal can be perfectly legal: If the employer simply does not like the worker, for example, or the employee was late for a reason out of their control. Even if there were discrimination involved, it can be very hard to prove under Maine law. The burden of proof on the employee is very high, and a discrimination case can involve a lengthy process before the Maine Human Rights Commission.
From an employer’s perspective, the establishment of clear rules and procedures for discipline and dismissal can make their job easier. Currently, employers have to navigate a set of unwritten rules and examples built up in case law to avoid lawsuits. Ensuring compliance often occupies a significant amount of time and money for employers. Replacing this system with a clearer written guide to establishing just cause would provide clarity to employers and reduce uncertainty.4
LD 553 is a good start, but lawmakers can improve it
While MECEP supports LD 553, we offer some suggestions to make the law more effective:5
- We urge the committee to remove the exemption for small employers. MECEP believes all Maine workers deserve the same basic rights, and that working for a small employer should not deprive any Mainer of these workplace protections.
- We suggest offering clearer language in section 3701 to define just cause for dismissal. The current broad language is too ambiguous and leaves much of the definition of a just cause up to the employer, thereby offering little protection to workers. MECEP suggests looking at the examples from Puerto Rico,6 the US Virgin Islands,7 Philadelphia8 and New York City9 for clearer language.
These changes would improve LD 553 and ensure its intended protections are extended to all workers in a way that’s clear and enforceable.
Maine workers deserve better than a system that allows employers to fire them at will, with no regard to a fair disciplinary process or guarantee against discrimination. By making Maine a “just cause” state, we can protect workers from unfair firings.
Notes:
[1] Hertel-Fernandez, Alexander, “What Americans Think About Worker Power and Organization: Lessons from a New Survey,” Data for Progress. May 2020. https://www.filesforprogress.org/memos/worker-power.pdf
[2] Andrias, Kate and Alexander Hertel-Fernandez, “Ending At-Will Employment: A Guide for Just Cause Reform,” Roosevelt Institute. Jan 19, 2021, p9-10. https://rooseveltinstitute.org/publications/ending-at-will-employment-a-guide-for-just-cause-reform/
[3] “Fired on a Whim: The Precarious Existence of NYC Fast-Food Workers,” Center for Popular Democracy, Feb 2019. https://populardemocracy.org/sites/default/files/Just%20Cause%20Complete%20Final%20-%20Web%20V2%20FINAL.pdf
[4] Dannin, Ellen, “Why At-Will Employment is Bad for Employers and Just Cause is Good for Them,” Labor Law Journal, vol 58, No 5, 2007. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010437
[5] For a guide to crafting effective “just cause” legislation, see Andrias and Hertel-Fernandez, 2021.
[6] Laws of Puerto Rico, title 29, Sec 185b. Available at https://casetext.com/statute/laws-of-puerto-rico/title-twenty-nine-labor/part-i-labor-provisions-generally/chapter-9-payment-of-wages-discharge-without-cause-mechanics-lien/185b-indemnity-for-discharge-without-just-cause-just-cause-for-discharge
[7]2019 US Virgin Islands Code, Title 24, Chapter 3, Sec 76, “Grounds for Discharge.” Available at https://law.justia.com/codes/virgin-islands/2019/title-24/chapter-3/76/
[8] Philadelphia Code, Chapter 9-4700, “Wrongful Discharge from Parking Employment.” Available at https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0-0-0-197984
[9] City of New York, Administrative Code, Title 20, Sec 1271-2, “Wrongful Dismissal of Fast Food Workers.” Available at https://legistar.council.nyc.gov/View.ashx?M=F&ID=9201327&GUID=F5E7F7E8-11E2-4AD4-8259-5FD8DFE46C3C
