In a whiny blog post at 200 Proof Liberals addressed to his provost, Jason Brennan claims that you can’t enforce a contract which gives one side unilateral and unlimited power to change the terms of the contract. The context is a “compact” that Georgetown’s administration has imposed on students, faculty, and staff regarding the spread of COVID-19.
I’ll let Brennan’s provost respond to Brennan’s foot-stamping complaints, but I couldn’t help laughing out loud at Brennan’s worldly wisdom, offered as an aside, on the subject of employment law.
Further, the document suggests that students, staff, and faculty agree that you can unilaterally change the compact at any time, and that they pre-consent to whatever changes you later make. I don’t know if this document qualifies as a contract in some legal sense, but in general, in legal contracts, even when there is language to the contrary, parties do not acquire the right to unilaterally revise the conditions.
Do employers acquire the right to unilaterally revise the conditions in an employment contract? Contrary to Brennan, in general, they do.
Suppose you sign a contract at a job that employs at-will but also employs the fiction of an employment contract. The fiction of a contract, however paradoxical in appearance, is useful to such an employer, since it gives employees the false security of believing that they enjoy the protections of a contract, and also allows the employer to “hold the employee” to the terms of this contract for the duration of the employment, even if the terms change every other day (or every other hour).
The contract will typically be written in such a way as to look like a contract while simultaneously being subject to the “terms” of at-will employment. So I’m not talking about the special case of at-will employment modified by a contract that renders the employment contractual rather than at will (as in the case of certain high-level executive hires). I’m referring to the ordinary case of at-will employment that features a fundamentally fictional contract–the kind of employment contract that most people unwittingly sign under the false impression that it binds both sides to terms that neither side can unilaterally change.
Since, under such arrangements, you can be fired at will–with or without cause, with or without notice–the employer has the de facto and de jure power to alter any agreement made with you at will. That’s why it’s called “at will employment.” If you don’t comply with a unilateral change to the terms of employment, your employer can (and often will) fire you, and “in general,” you have no legal remedy if that happens, whether de facto or de jure. I wonder whether Brennan has ever heard of an employee that “serves at the pleasure” of the executive (whether in political or business contexts). What does he think that means? The conditions that Brennan finds so onerous and so terrible at his tenured job are the ones that govern virtually all employment all of the time. I’m not sure how it can take someone with Brennan’s arrogance 40 years to figure this out, but I guess it can.
Is Brennan’s ass covered by his carefully legalistic use of the phrase “in general”? No, it isn’t. Most employment in the U.S. is employment at will: Montana aside, at-will employment is the legal presumption in this country. But despite the apparent paradox involved, employment at will almost always requires that the employee sign a contract of some kind–including, in many cases, binding agreements of various sorts before any offer is made, e.g., non-disclosure, waivers of privacy (e.g., consent to drug testing), agreements to look and act a certain way off the job if hired (e.g., no visible tattoos), etc. Agreement is a necessary condition of getting the interview; if you don’t agree, you don’t get it. But once you agree, then if you get the job, you’re told that you keep the job only if you uphold the agreements, which can change at any time.
So the truth is the exact reverse of what Brennan asserts: in general, an employer can unilaterally change the terms of employment, and fire you for your failure to comply with terms that are indefinitely open to revision. This is a fact known to just about everyone except chaired and tenured professors of business ethics and public policy at elite institutions. But it’s a fact just the same.