Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism

Abstract

Commentators have long debated the merits of the United States’ “at-will” rule, which allows employers and employees to end the employment relationship without cause or notice, absent a constitutional, statutory, or public policy exception. One premise for both proponents and opponents of at-will employment is to stress the uniqueness of this default among other developed countries, which generally require “cause” for most dismissals. Although other countries’ cause regimes differ significantly from the U.S. on paper, this Article addresses whether those differences in normative law also reflect differences in employees’ protection against wrongful termination in reality. The existing literature on dismissal law stops at a comparison of countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous countries, this Article goes beyond the text of the relevant statues and cases by using information from foreign employment law practitioners and available data - particularly claimants’ success rates and average remedies - in an attempt to observe how the laws actually operate. We find that, even on paper, the cause protection of the surveyed countries is far less robust than typically described. Moreover, the actual practice in these countries shows that challenges to dismissal can be difficult to pursue and generally result in modest remedies by U.S. standards. This suggests that the U.S., with its at-will default and broader remedies, is actually part of relatively narrow continuum of employment laws found in advanced countries.This Article hopes to spur more in-depth descriptive work on the employment laws of other countries and to broaden the terms of the debate over the relative merits of the U.S. employment dismissal system and the dismissal systems of cause regimes.