At-Will Employment Redux

Back on July 25th, I took issue with Jason Brennan’s claim that

…in general, in legal contracts, even when there is language to the contrary, parties do not acquire the right to unilaterally revise the conditions.

This claim, I argued, is close to the reverse of the truth. Most employment in the US is employment-at-will. In at-will employment arrangements, employers unquestionably do have the right (both de facto and de jure) “to unilaterally revise the conditions” of employment. They often conceal this by having their employees sign what look like (and are called) “contracts.” But the “contract” in question will typically contain language to the effect that the employment arrangement is at-will, implying that the terms are revisable at will.*

In other words: If the “contract” guarantees that p, the employer can decide on a whim that ~p should prevail. If the employee objects or fails to adhere, the employer can terminate the employee without cause or notice. Special circumstances aside, the employee has no legal recourse if that happens. So in general, it’s precisely “the language to the contrary” in the “contract” that gives the employer the right unilaterally to revise the conditions of employment.

It might be argued that in discussing contracts, Brennan is excluding at-will arrangements from consideration: at-will arrangements (he might say) aren’t contractual; they contrast with contractual relationships.

That won’t work. For one thing, Brennan claims to be characterizing what is generally the case. But at-will employment is the default rule for employment in 49 of 50 states. So it would be a bait-and-switch to speak of the non-default situation as characterizing the general case.

For another, an unqualified and unexplained contrast between “at-will” and “contractual” employment is simply a recipe for confusion. At-will employment arrangements are justified on the grounds that they express freedom of contract; indeed, the usual thought is that the at-will arrangement is the perfect paradigm of the right to freedom of contract.  That’s why it’s the default rule in the first place, in this, our contract-based and contract-revering society. The paradox of having a “contract” that can indefinitely and unilaterally be revised is just that: a paradox. So at-will arrangements are both the paradigm of a contractual employment relation, and a nullification of the whole point of having a contract. But then, so are slave contracts, famously espoused by libertarians like Nozick, among others.** Welcome to the Antinomies of Capitalist Reason.

A contract that’s revisable at will offers only one protection to the employee: exit-at-will. That’s beneficial to the sort of employee who’s willing and able to exit at will, but not to the sort who relies on the employer in the medium- to long-term for remuneration and benefits. If you’re in the latter circumstance, your work life (and by implication, your life) is held hostage to the whims of your “supervisors” (aka, “superiors”). To invoke “the contract” against them in the clutch case is either to invite laughter, or to invite protracted litigation that’s certain to end in defeat for the plaintiff (where typically, plaintiff= employee; employers know better).

The only purpose of “contracts” of this sort is to convince the employee that she’s obliged to live up to its terms while convincing her, falsely, that she, the employee, can hold the employer to the same terms. Alas, she can’t, a discovery that usually comes too late to stave off disaster. My phone’s contacts list is clotted with people in this circumstance, who call or text me periodically to vent about it.

Brennan’s confusion about at-will employment finds expression in his recent book (co-authored with Phillip Magness), Cracks in the Ivory Tower: The Moral Mess of Higher Education.  Chapter 2 of the book purports to offer non-academic readers a kind of primer on the basics of academic employment. B&M concede from the outset that their account is intended to be merely “impressionistic” (p. 23), but the account they give is not just “impressionistic.” It’s either misleading or inaccurate.

On their account, there are broadly speaking four types of faculty positions on offer in higher education: (a) adjunct positions, (b) post-docs, (c) “long-term, full time, non-tenure-track teaching positions,” and (d) tenure-track positions. Focus on category (c), to which Brennan and Magness refer as “lecturers” or “professors of the practice” (Cracks, pp. 24-25). Either B&M have offered an inaccurate account of this category, or a misleading account of (d), or their overall taxonomy fails to account for a crucial fifth category that combines elements of (c) and (d) without being reducible to any straightforward combination of (c) with (d).

This is their description of (c):

Teaching faculty receive long-term contracts (for instance, three- to five-year rolling contracts renewed yearly), full benefits, offices, computers, expense accounts, and some power in faculty governance. Although they are ineligible for tenure, many of them are assured automatic renewal of their contracts, contingent on decent teaching, after they pass a grace period. They have far more job security than, say, private businesspeople (Cracks, p. 25).

I don’t dispute that faculty of this description exist. The question is whether the preceding is an accurate general characterization of the employment situation of “teaching faculty.” It isn’t, and neither are (a), (b), or (d). I spent fifteen years of my career as “teaching faculty” in the New York/New Jersey metro area, a place of high population density and a large concentration of teaching institutions. So I would know–but so would anyone who’s been in the relevant situation. What B&M fail to account for is the situation of non-adjunct teaching faculty, whether tenure-eligible or not, in at-will employment situations, who are not moonlighting professors of practice.

Take an individual, Smith, who is hired as teaching faculty at a teaching institution, whether two-year or four-year. Smith signs a “contract” for a supposedly rolling, renewable position. Let’s say that the contract calls for a three-year term. The same contract may also refer Smith to a handbook that says that Smith’s employment has at-will status. Obviously, at initial hire, Smith won’t have tenure, whether the institution grants it or not:  as for tenure itself, some grant it, and some don’t. The tenure situation is complex, and in flux: as B&M themselves admit later in the very same chapter, teaching institutions are increasingly moving either to get rid of tenure, or to reduce the number of tenure-track faculty (Cracks, p. 45).

So some teaching faculty are ineligible for tenure, but others are eligible. This is not to say that any of these faculty satisfy categories (a) or (b): they’re neither adjuncts nor post-docs. Nor do they satisfy category (d), at least in the sense that B&M intend it: their situation is not comparable to tenure-track research faculty at R1 institutions.*** But B&M’s failure to understand at-will status renders (c) inapplicable as well. Their situation is not at all like professors of practice, or clinical professors, either (and even this category is more complex than their description suggests).

First of all, the concept of a “long term contract” in this context is self-contradictory. “Long term contract” in this case is elliptical for “long term contract subject to at-will provisions.” But at-will provisions imply the possibility of termination at-will without cause or notice–the very opposite of a long term contract. At-will employment is incompatible with guaranteed job security of any length, including the length specified on “the contract.” 

The “contract” does not protect Smith from the possibility of termination without cause prior to discharge of the specified length of the contract. The contract is precisely what provides for such termination. So it makes no sense as a general proposition to say that teaching faculty are on “long term contracts,” except in the sense that some may be,  while others aren’t but operate in an environment in which everyone pretends that they are. In short, such faculty have exactly the same employment status as someone pumping gas, or someone working the cashier at Rite Aid. There is no sense in which they have more job security than private businesspeople. They have as much or as little, and depending on the meaning of the phrase “private businesspeople,” often much less. (The phrase “private businesspeople” is, of course, absurdly vague and absurdly broad, which serves B&M’s purpose of misleading the reader without tying them to a determinate claim with a decidable truth-value.)

What B&M miss about the situation of such faculty is that they fall between the cracks of categories (c) and (d), whether they are tenure eligible or not. Because they fall between the cracks, they themselves seldom know what is expected of them in the way of tenure, promotion, or retention. Not that anyone anyone else does. Yes, there are written documents. Yes, there are ritualized procedures. Yes, there are pretenses at fairness and transparency. But prior to the award of tenure (in tenure-eligible cases), and absent the award of tenure (in tenure-non-eligible cases), every one of these “safeguards” can be dumped overboard without cause or notice.

As teaching faculty, such faculty are expected to teach a 4:4 baseline load, which quickly becomes a 5:5 or 6:6 load, given the need for “overload” (teaching over the 4:4 baseline during the ordinary academic year), or the need to teach summer sessions or variable term sessions (sessions that cross-cut breaks and semesters).**** Even 4:4 is misleading, given the propensity to enroll classes beyond the official enrollment cap. But whether tenure-track or not, such faculty are also expected to publish. And as faculty at small schools that can’t afford large administrations, they are saddled with heavy service requirements. Much is expected of them, but prior to tenure (where it exists), and in the absence of tenure (where it doesn’t), nothing is guaranteed.

Certainly not an assurance of “automatic renewal” of their (fictional) contract. Even if “automatic renewal” existed, what would it mean if the faculty member can be terminated at will regardless of the renewal? In any case, for the demographic I have in mind, renewal is not assured and security after renewal is a fiction as well.

Contrary to B&M, teaching faculty go through (extremely tedious) periodic reviews (tedious: like being obliged to give written answers to criticisms made in student course evaluations), can (paradoxically) be fired “for cause,” and often are fired for cause, including on transparently pretextual causes. Of course, once they get renewed, they can be fired anyway without cause or notice. And are fired, regardless of the outcome of the renewal process. You can meet every criterion of the renewal process to the highest degree and be fired without cause and without notice the next day.

Why go through the process at all? Because such institutions deeply enjoy the ritual of going through the motions of a non-assured renewal process despite the fact that it has no meaning. It gives the impression of academic legitimacy while retaining the safety net of administrative arbitrariness.

I remember a case in which a professor of religious studies was fired because he was overly reluctant to shoot his students’ ideas down in class discussions (“failed to take the pedagogical initiative”), and preferred to make use of chalk and blackboard rather than give PowerPoint presentations (“failure to demonstrate best practices”). I still have the documentation for this case, which I got from the faculty member himself, who pleaded with me (as department chair) to help him out of his situation. It was a futile request, since the decision was made by my predecessor, was a done deal, and was therefore out of my hands. Result: they tossed his ass out on the street; he lost his health insurance as he was battling cancer.***** He’s currently an adjunct, eking out a living somewhere (the cancer, apparently, is in remission); the dishonest, vindictive person who wrote him up is now a university president. So much for “assurance of renewal.” Hardly an atypical story. I have plenty more.

There are some other problems with B&M’s characterization. Not all teaching faculty get (personalized) “expense accounts.” I never did, not once in fifteen years. At most, teaching faculty jockey for bits and pieces of a divisional or school-wide research fund. As a result, I paid for most of my research expenses out of my own pocket, going thousands of dollars into credit card debt to do so. Again, not an atypical situation.

I guess B&M could say that they only meant for their claims to apply to “many” teaching faculty. To which I respond: the problem is, their claims fail to apply to “many,” as well.

Brennan has now written a new post about the revised Georgetown compact. Here’s what he says (italics mine, hyperlink his):

The original community compact was badly written, full of absurdities, and contained unacceptable language about the university having a unilateral right to change the terms of the compact. Numerous faculty as individuals, plus the faculty senate, said it must be revised, and so it has been.

The italicized clause implies, trivially, that an employment agreement in which one side retains the right to unilateral change of the terms is, by Brennan’s lights, “unacceptable.” Good to know. But if so, “unacceptability” is the default setting of almost all employment relations in the United States. Read this for the exceptions. The exceptions listed in the preceding article are precisely the ones that prove the rule. The rule is that if you work at will, you work subject to what Brennan calls an “unacceptable” situation: your boss can, short of violating explicit law, make just about any demand of you he wants, including demands that revise the terms of prior agreements he’s made with you, up to and including ones that appear to be enshrined in the document that everyone at your workplace (including the boss) calls a “contract.”

I don’t begrudge Jason Brennan the right to demand acceptable working conditions at Georgetown. I’d do the same in his position.  In fact, I did the same when I had an academic position. But the hypocrisy and lack of introspection involved here are worth noting. For the last five years, Brennan and Magness have argued that adjuncts have nothing to complain about. The derision they’ve showered on the cause of adjunct justice is a matter of public record, even if obscured by Brennan’s habit of deleting online writing with bad optics for his career. But no one who’s followed the debate could mistake the position he’s taken.****** This is a fair summary:

Adjuncts are a bunch of improvident whiners who should read the writing on the microeconomic wall, shut up, and find non-academic jobs.  Their complaints are mere noise and shouldn’t be taken seriously. Indeed, amelioration of their condition would be overwhelmingly expensiveso expensive that the mere thought of amelioration should give us pause.

But aren’t adjuncts complaining about the very thing that Brennan is now complaining about himself? People subject to at-will employment arrangements operate at the whim and pleasure of others. They have no recourse if those others alter the terms of the working arrangement, and no real say about what the terms are in the first place.

Evidently, this is “unacceptable” to Jason Brennan, at least when he, the Robert J. and Elizabeth Flanagan Family Professor of Strategy, Economics, Ethics, and Public Policy at the McDonough School of Business at Georgetown University is on the receiving end. But adjuncts have been on the receiving end of this kind of treatment for decades with much worse consequences for them than the bullshit that Brennan is whining about. I mean, break out the violins and the hankies, but this is the First World problem that arouses Jason Brennan’s indignation:

There’s a pandemic on that’s killed 170,000 people, but I have to choose between teaching from home, or living up to a revisable compact if I teach on campus!

The horror. In any case, if tenured, chaired professors at elite institutions find unilateral revision of the conditions of employment unacceptable, why shouldn’t adjuncts? If Jason Brennan demands rectification for it, why shouldn’t they?

I don’t begrudge Jason Brennan the right not to answer my questions. As far as he’s concerned, I fall too far down in the professional pecking order to have questions worth answering. But if you decouple the questions from the questioner, their interrogative substance remains, and that substance raises doubts that Brennan really knows what he’s talking about when it comes to one of his favorite hobby horses, how the job market works. How is it that a person who assumes so authoritative an air on this subject can get the basics so badly wrong?

I don’t know. Brennan can assume whatever airs he wants, but the fact remains that false belief plus a chaired position at Georgetown doesn’t fly as an analysis of knowledge. And authoritative handwaving doesn’t fly as real knowledge of the workings of HR and employment law, either. Worth bearing in mind as you trawl through his authoritative pronouncements on the subject. Free advice: ignore the authoritative tone, and take what he (and Magness) say on the subject with a large grain of salt. 

Thanks to Michael Young for discussing some of this with me. Thanks also to the many people who clog my phone and email with their (un)employment-related ventings/rantings. See? Even when I don’t respond, I’m not ignoring you! The usual caveat applies. 


*Sometimes the relevant language will be off in the functional equivalent of a separate codicil that few employees bother to read. At Felician, where I used to work, it was in the Employee Handbook, which most faculty failed to read, on the false assumption that the Faculty Handbook governed faculty while the Employee Handbook governed “staff.” In fact, since faculty are staff, faculty were explicitly governed by both Handbooks. But administrators were careful to refer almost exclusively to the Faculty Handbook in ordinary life, invoking the Employee Handbook only when it was time to terminate someone.

For examples of speech acts that can get you fired at a teaching institution, read this. For examples of speech acts that will get you arrested, read this and this

**Robert Nozick, Anarchy, State, and Utopia, p. 331. For good (non-libertarian) discussions of the topic, see Anthony Kronman, “Paternalism and the Law of Contracts,” and Jeppe von Platz, “Absolute Freedom of Contract: Grotian Lessons for Libertarians.”

***B&M claim to be describing the situation “especially at what are called ‘R1’…universities” (Cracks, p. 23).  This language seems to imply that they’re relying on one of the more recent versions of the Carnegie Classifications. But precisely for this reason, it’s a mystery throughout their discussion how much of what they say is supposed to apply to non-R1 institutions. And the word “especially” doesn’t really clarify anything: they announce that their discussion applies “especially” to R1 institutions, then write in a fashion that suggests that it applies universally.

To make matters worse, later in the book, they refer “R3 universities,” a now-obsolete category (Cracks, p. 267). Do the claims that make about R3’s apply to D/PUs? Unclear. Do the claims they make about R1s apply to M1s? Unclear. By “tenure track,” do they mean “tenure track at R1,” or do they mean to include “tenure track at baccalaureate” institutions? What about tenure track at mixed baccaulaureate/associates community colleges? This will only seem like hairsplitting to those who rarely set foot on non-R1 campuses.  

****It’s worth noting that such faculty are also obliged to become “freeway flyers” despite being full time. It’s a common practice for small teaching institutions to create articulated agreements with community colleges and similar institutions in a given region. At one time or another, Felician (located in Lodi and Rutherford, NJ) had articulated agreements with Sussex (Newton, NJ), Middlesex (Edison, NJ), and Mercer County Colleges (West Windsor, NJ), along with East Orange General Hospital (East Orange, NJ), the continuing education program at St. Luke’s Baptist Church (Paterson, NJ), and so on. So faculty may be obliged on a given day to commute from their home to their home campus, from their home campus to a satellite campus, and from the satellite campus back home. Mileage reimbursement was subject to arcane rules designed to cut costs. (This is Felician’s most recent summary of articulation agreements; the point is that a faculty member teaching at one of these satellite locations would be obliged to drive both to Felician’s main campus and that location.) 

On Wednesdays in early spring 2020, I would drive from Whitehouse Station to Lodi for morning and afternoon classes (50 miles), from Lodi to Edison for a night class (35 miles), and from Edison back home to Whitehouse Station after the night class (27 miles), a round trip of 112 miles, two legs of it in rush hour traffic. 

*****”Lost” may be too strong, since, by law, a terminated employee is eligible for continuing coverage through COBRA. But since COBRA coverage is several times more expensive than employer-based coverage (four times more in my case), a person who loses his income source may well end up losing his health insurance coverage altogether.

******Brennan (and Magness’s) account of adjuncting is at least as misleading on purely descriptive grounds as their account of teaching faculty. I originally had thought to discuss it in a footnote, but the footnote got so long that I’ve decided to make it a future post of its own.

For now, suffice it to say that B&M’s well-known paper on adjunct exploitation fails to deal with an obvious objection implied by the argument of this post: that adjuncts suffer disproportionately from unfair terms of employment that apply not just to adjuncts, but to full-time non-tenured faculty as well as to non-teaching staff (as well as to non-faculty teaching staff, e.g., staff who work in writing centers, math labs, as academic tutors, etc.) Formally, adjuncts can be treated exactly as full-time faculty are while substantively being put at a greater disadvantage by those very conditions. But the underlying problem is that the conditions themselves are unfair, a fact that Brennan now seems (belatedly) to be acknowledging, at least in his own case.

 

 

5 thoughts on “At-Will Employment Redux

  1. Similarly, most rental contracts include boilerplate saying that the tenant must comply with whatever other rules and regulations the landlord may from time to time promulgate, which effectively negates most of the list of tenant rights and landlord responsibilities elsewhere in the lease.

    That said, if such an interpretation is challenged in court, most courts will not interpret the landlord’s authority in *quite* as sweeping a manner as the text could in principle bear, though what they will actually do can vary unpredictably from case to case.

    Related: https://aaeblog.com/2010/09/17/how-inequality-shapes-our-lives/

    Liked by 1 person

    • Yes. I hadn’t read that blog post of yours before, and thought it was not just spot on, but obviously so. So I read some of the criticisms that were made of it by Bryan Caplan and others. I didn’t have time to read in great detail, but on a quick reading, at least, your critics don’t seem to be interested in acknowledging the obvious, undeniable facts you’ve described. I literally don’t get why.

      I found a comment by a lawyer, John Jenkins, very typical. You had made this claim:

      Now think about your relationship with your employer. In theory, you and she are free and equal individuals entering into a contract for mutual benefit. In practice, she most likely orders the hours and minutes of your day in exacting detail. As with the landlord case, the contract is provided by her and is designed to benefit her. She also undertakes to interpret it; and you will find yourself subjected to loads of regulations and directives that you never consented to. And if you try inventing new obligations for her as she does for you, I predict you will be, shall we say, disappointed.

      That strikes me as obviously true. This is Jenkins’s response:

      Most employees don’t have contracts at all (they are at will employees), so I am not sure what he’s talking about there. Employees are generally free to leave as they see fit, if they don’t like a change in working conditions (how is a new rule different from a new boss, if your old one quit or was promoted?). This is very childish, it seems to me.

      How is that a response?

      What I find interesting is the contrast drawn here between “having a contract” and being an “at will employee.” So if being an at-will employee contrasts with being on contract, is the at-will relationship not a contractual relationship? If so, what is it, exactly? Should we infer that the default rule of employment in the US is a non-contractual relationship between employer and employee? The assumption here seems to be that at-will employment is a sui generis non-contractual relationship, and there’s nothing controversial about the idea that most employment is exemplified by such a thing.

      What this misses is that the at-will employment relation is not just a contractual relation, but (at leas as far as employment law is concerned) the paradigm of one, in just the way that entrapment-by-enticement is the paradigm of entrapment in federal law. Maybe it shouldn’t be, but that’s what it is.

      This is a completely standard description of at-will employment, along with a summary of the standard justification for it:

      Employment relationships are presumed to be “at-will” in all U.S. states except Montana. The U.S. is one of a handful of countries where employment is predominantly at-will. Most countries throughout the world allow employers to dismiss employees only for cause. Some reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.

      So the justification for at-will employment is “respect for freedom of contract,” but somehow, at-will employment contrasts with having a contract.

      A couple of weeks ago, I hired a professional resume writer to optimize my LinkedIn page, and one thing he did was to list my full time academic positions as “full time” positions, and my adjunct positions as “contract” positions. I’m not complaining; as far as readers on LinkedIn are concerned, that way of describing things makes perfect sense. But LinkedIn universe aside, how can it make sense to contrast “full time” with “contract,” when all of the positions in question were at-will, and lawyers habitually contrast at-will with contract? Could things get more confused?

      What I find incredible is a lawyer like Jenkins above whose response to bad working conditions is to assert, cavalierly, “Well, they can’t be so bad if you have a right of exit.” What does a right of exit have to do with an evaluation of the conditions themselves? This is like saying that a beating can’t be so bad if the beater leaves the door open, and escape is possible. And how is it obvious a priori that anyone can so easily exit any employment whatsoever, regardless of any considerations of particular circumstances, promissory reliance, asymmetries in leverage, etc?

      I’m not sure what he’s talking about there.

      Like

    • One minor quibble I’d make is with your description of rental agreements with landlords. What you say is certainly the most common occurrence: renters sign one-sided leases written by the landlord’s attorney. But there are contexts in which attorney review of a lease is possible. I’ve done it at least once: I took a proposed lease to my attorney, who reviewed it for a very reasonable fee, found a series of problematic clauses in the lease, and then wrote a letter to the landlord demanding their deletion. It worked, but I think it worked only because this was a lease renewal, not a first time offer. It was not worth the landlord’s time to reject the revisions, etc. given that I was already in the apartment.

      Things are different if you’re trying to rent, the supply of apartments is tight, demand is high, and the landlord has enough leverage to make an offer and demand instant acceptance. In some cases, though, I think there’s a statutory requirement that the landlord must allow for attorney review after making an offer (if the deal was done through a licensed broker). I don’t think that’s the usual case, however. I’ve never been in it myself.

      Click to access lease.pdf

      I guess the libertarian argument is going to be that if you eliminate barriers to entry into the rental market, you’ll reduce the situations in which landlords have the kind of leverage that pre-empts attorney review or some equivalent?

      Like

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