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Hastings Law Journal

Abstract

The recent adoption of a Model Employment Termination Act by the Uniform Law Commission, and proposals for statutory reform of employment law in several states indicate that protection against termination without cause is just over the horizon for non-union, private-sector employees in many states. Currently, such protection is available to non-union, private-sector employees only if their employer has expressly or impliedly promised not to terminate them without cause. Making justcause protection available to such workers generally, by statute, would dramatically alter the nature of discharges and threatened discharges in the workplace.

In many cases, the "just cause" asserted by the employer in dismissing a worker who cannot be terminated without cause is in dispute. Such disputes frequently arise when an employer suspects or believes that a worker has committed some misconduct, but the worker denies it. This Note examines what a non-union, private-sector employer should be required to demonstrate in order to lawfully terminate a just-cause protected employee. Standards drawn from wrongful termination case law, from the unionized private sector and from civil service law are examined in the context of balancing the worker's right to the job security she has been promised against the employer's right to make business decisions and the employer's obligation to ensure safety in the workplace.

This Note concludes that, in order to ensure that just-cause protection for workers is meaningful, an employer must be required to satisfy an objective standard in discharging a worker for cause. The objective standard recommended in this Note would require an employer who discharges a just-cause protected worker to act reasonably, in good-faith, and based on substantial evidence of misconduct.

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