Gali Racabi (Cornell University ILR School; Cornell Law School) has posted At Will as Taking (Yale Law Journal, Vol. 133, 2024, Forthcoming) on SSRN. Here is the abstract:
Employment at will is legally and politically entrenched. The default termination law in forty-nine states controls the working lives of most U.S. workers and creates a political economy of precarity and exploitation. This Article offers a framework for a novel Constitutional challenge to the at-will termination regime, connecting a neglected corner of Constitutional law – public sector personnel law – with the contemporary assertiveness of the Supreme Court’s enforcement of the Fifth Amendment’s Takings Clause.
The argument advanced in this Article is that at-will rules strip workers’ job security and thus are unconstitutional takings of workers’ property. Following the Supreme Court’s lead, numerous courts equate public sector workers’ job security with property entitlements on the job. I offer two ways to expand this doctrine in the private and public sectors. As a sword, this claim can be raised as a sword against the prevailing termination regimes in forty-nine states. As a shield, at-will-as-takings claim can protect workers against the restructuring of federal, state, and local public services.
In addition to offering this novel claim, this Article makes two theoretical contributions. First, by rejecting the premise underlying contemporary critiques of the Supreme Court’s takings doctrine identifying employers as the only property owners on the job and second, by offering a property-friendly progressive constitutional vision, rejecting reliance on the administrative state as the only steppingstone for progressive policy advancements.
Very interesting, recommended.