The abandonment of employment-at-will does not provide the natural path to greater workplace justice that many academics and liberal jurists have presumed. It in fact presents many dangers to employers, employees and the economy. The added job security which "just cause" protection provides may permit its advocates to sleep better at night, but it is doing its supposed beneficiaries, the workers of America, no service. The losses incurred by the great majority of employees far exceed the gains made by the few fringe employees benefiting from the right to sue. Lawyers benefit from the abandonment of employment-at-will, but employees do not. In short, the abandonment of the traditional American doctrine is a mistake.

Employment-at-will has survived for more than a century for good reasons: It is inherently fair and functional. It serves the needs of employers and employees equally, and does so at minimal transaction cost. It does not avoid incidents of unfair treatment, but neither does a good cause employment system. Employment-at-will most perfectly reflects a free and open market system, freedom of contract, and respect for individual choice. The doctrine should be preserved.

Employment-at-will is built on the foundation of a competitive, mobile labor market. The United States has such a market. The academic complaint about oppressed workers thrown on the scrap heap for the sake of profit is Marxist rhetoric based on a perception of capitalism that has long since been refuted both in theory and in practice. The American economy today, more than ever, offers widespread opportunity and vibrancy. In any one year, ten percent of all workers change occupations. That's 10 million workers, more than half of whom switched occupations because of better pay, better working conditions, or advancement opportunities. Only 1 in 8 workers changed occupations because they lost their previous jobs. A more one-fourth of all American workers have been with the same employer for 10 years or more. Those who lost their jobs did so primarily because of economic factors, not wrongful termination. [64] In short, mobility is a hallmark of the American labor market.

In this context, employment-at-will offers the perfect balance. An employer may work with whomever he/she chooses for as long as he/she chooses. An employee may work for whomever he/she chooses for as long as he/she chooses. The parties can explicitly contract for a specific duration of employment, or decide to work from moment to moment. The choice is up to them. The conditions of employment are also up to them. Each side is free to terminate the relationship at will.

Whether the choices are wise or "fair" should not be the business of anyone but the parties themselves. The notion that legislators, judges and jurors should impose their own arbitrary sense of what is fair after the fact over the wishes of the contracting parties at the time of contracting is antithetical to freedom of choice and freedom of contract. It has been a fundamental principle of our society that freedom of choice, not government intervention by master planners, will produce the best economic, social and political results. The ability to freely craft an employment relationship is fundamental to such freedom of choice.

The demise of central economic planning in nations such as the Soviet Union and East Germany also shows quite clearly that government cannot impose its will when the parties are unwilling to accept the conditions. The consequence of imposed notions of "fairness" and economic justice is simply stagnation and decline. This principle holds just as true on the level of one-to-one relationships, as it does for entire economies. No one should be forced to contract with someone else against their will. The remarks of Professor Power are apt:

Whatever its setting, consensus is the core of the (employment) relationship, its energizing ingredient which secures the fruits of the agent's skills for the principal and appropriate rewards for the agent's services. At the risk of romanticizing, one can say that consensus is the flower of voluntariness while labor under compulsion comports a withering sterility. Consensus is the source from which flows fidelity, perseverance, and the exercise of ingenuity – a maximum use of skills. When one or both of the parties no longer wish to continue the relationship, consensus has disappeared and the agency relationship can no longer function effectively. [65]

Many factors stop both employers and employees from making irrational choices about departure and termination. Employees cannot simply switch jobs with impunity, out of fear that they will become undesirable on the market. Employers who practice repeated unjust dismissals will suffer decreased morale, loyalty, and productivity, and will find it harder to attract talent. The free market system is designed to make the necessary adjustments which will limit the willingness of employees and employers to act irrationally.

If society decides that it should interfere with the freedom of contract and prohibit terminations or departures for various reasons, it should do so with great care and precision. If it wishes to protect union activity, or freedom from racial, religious, sexual or other specified discrimination, it can do so, as long as it is an informed decision resulting from the traditional processes of legislative and executive activity. Statutory exceptions to free contract are not bad, as long as they are narrow and precise, and democratically created.

It is worth noting that the advocates of "just cause" employment taw never suggest interfering with the freedom of the employee to depart. These advocates see nothing wrong with employees leaving their employers in economic difficulty by taking a job elsewhere anytime they wish. But we must ask whether any system that burdens one side with restraint while leaving the other free to choose is fair and just. Employee departures can be just as unfair, as violative of "public policy" considerations, and as disruptive of implied contracts as employer terminations. Employers can be just as harmed by the unexpected sudden departure of an important employee, or of many employees, as employees are harmed by terminations. Yet this side of the equation is usually forgotten.

The historical truth is that "a balancing of the interests of employees with the rights of employers has been a cornerstone of our free economy for two centuries. The termination at-will rule is the foundation supporting that cornerstone." [66] It conforms to the traditional, pre-litigation era expectations of workers and employers in the workplace – expectations which are perfectly compatible with notions of justice, since employees and employers are free to establish any terms and conditions of employment by contract that they wish.

Employment-at-will works so well because it allows some temporary setbacks for both employees and employers for the sake of maximized freedom of choice and mobility. So what if a particular employer or employee was not nice in ending an employment relationship? Is it the job of society to legislate good behavior at the expense of free choice? No. So what if an employer or employee suffers economic loss due to sudden termination or departure? Employment-at-will permitted the parties to contract with each other to protect both sides from such economic loss. The collective bargaining agreement is a perfect embodiment of such a contract. If the parties chose not to so contract, why should the arm of government authority intervene and invent such a contract? It shouldn't.

This is especially true given the many insurance protections society has provided both employers and employees. The employer, for example, is protected by bankruptcy law, which permits continued operation or salvaging of assets In case of insolvency. The employee is protected by the unemployment compensation system, as well as workers' compensation and payment of wages guarantees.

Given the many benefits bestowed by freedom of contract, and the many risks and burdens imposed by "just cause", it simply does not make economic or public policy sense to abandon employment-at-will. It is easy to succumb to the seduction of the public imposition of "fairness", without fully understanding the heavy costs to all of the supposed beneficiaries. It is a truism of the law that "good facts make bad law", but this is precisely what lures the sentimental to abandon freedom of contract. They see the singular outrageous case and cry, "what an outrage, this cannot be tolerated". But to correct the singular case, they will unthinkingly burden everyone. To the address the 1 in 100, they will crush the freedom of the remaining 99.

This paper proposes that a society of free choice and freedom of contract is much more capable of providing "fairness" to the many than is any intrusive collection of politicians, judges, and academics. Employment-at-will is based upon such free choice and freedom of contract. It still offers the American economy and labor market the best hope for productivity, efficiency, and reward.