The Law of Termination: Doing More with Less

Abstract:     
Today's workplace regulatory system consists of a confused web of rules derived from multiple sources of law. Nowhere is this confusion more apparent than the governance of terminations. Scores of federal laws apply to the end of the employment relationship. In addition, state and local governments have their own set of termination rules, which may or may not track the federal rules. The result is a patchwork of regulations that often require parties to apply different standards, and to pursue claims in multiple forums, for the same dispute. This complexity makes it difficult for both employers and employees to understand, comply with, and enforce termination rules. Those difficulties, in turn, undermine the rules' effectiveness and result in a system of workplace regulations that often fails to achieve its goals.

In response to this problem, this Article proposes a universal law of termination. This federal law would replace all current state, local, and federal rules governing terminations. The central substantive provision of the law of termination would be a prohibition against terminations that lack a reasonable business justification. However, the proposal's central aim is not to promote unjust termination protection on its merits. Rather, the Article takes a pragmatic approach to workplace regulation and makes the perhaps counter-intuitive argument that we can better achieve the goals of today's termination rules by replacing them with a single law of termination.

Keywords: employment, workplace, termination, dismissal, federalism

JEL Classifications: H73, J7, J58, J38

Accepted Paper Series