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http://ssrn.com/abstract=2238776
 
 

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Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism


Samuel Estreicher


New York University Law School

Jeffrey M. Hirsch


University of North Carolina School of Law

May 20, 2013

92 North Carolina Law Review 343 (2014)
NYU School of Law, Public Law Research Paper No. 13-28
NYU Law and Economics Research Paper No. 13-18

Abstract:     
Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals.

Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.

This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.

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Date posted: March 26, 2013 ; Last revised: February 28, 2014

Suggested Citation

Estreicher, Samuel and Hirsch, Jeffrey M., Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism (May 20, 2013). 92 North Carolina Law Review 343 (2014); NYU School of Law, Public Law Research Paper No. 13-28; NYU Law and Economics Research Paper No. 13-18. Available at SSRN: http://ssrn.com/abstract=2238776 or http://dx.doi.org/10.2139/ssrn.2238776

Contact Information

Samuel Estreicher
New York University Law School ( email )
40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6226 (Phone)
(212) 995-4341 (Fax)
Jeffrey M. Hirsch (Contact Author)
University of North Carolina School of Law ( email )
Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States
919-962-7675 (Phone)

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