At Will as Taking

Abstract

Employment at will is legally and politically entrenched. It is the default termination law in forty-nine states and controls the working lives of most U.S. workers, creating a political economy of precarity and exploitation. In light of these challenges, this Essay offers a novel framework for a constitutional challenge to the at-will termination regime under the Fifth Amendment's Takings Clause.

The argument advanced in this Essay is that at-will rules strip workers' job security and are, thus, unconstitutional takings of workers' property. Following the Supreme Court's lead, numerous courts equate public-sector workers' job security with property entitlements in their jobs under the Due Process Clause. I offer theories to expand this doctrine from the public sector to the private sector, and from the Due Process Clause to the Takings Clause.

As a sword, takings claims can be raised against the prevailing termination regimes in forty-nine states. As a shield, at-will-as-takings claims can protect public-sector workers against increasing precarity in federal, state, and local government work. This Essay makes two additional contributions. First, it rejects the premise underlying contemporary critiques of the Supreme Court's takings doctrine that identify employers as the only property owners on the job. Second, it offers a property-friendly progressive constitutional vision that rejects reliance on the administrative state as the only tool for progressive policy advancements.

Keywords: Employment law, Labor law, Constitutional law, Property, Takings doctrine, Law and Political Economy, Progressive Constitutionalism, Work Law, Antidiscrimination, At-Will Employment, Constitutional Challenge, Job Security, Labor Market, Fifth Amendment, Public-Sector Workers, Private-Sector Workers, Due Process Clause, Regulatory State, Employment Termination, Job Precarity, Worker Rights, Employer Sovereignty, Employment Contracts, Labor Law Theory, Constitutional Property Entitlement