chapter  6
United States of America – Part I: the origins of employment at will
Pages 12

Employment at will was not always the dominant approach in the United States. In fact, historically, a fair degree of disorder characterised how different United States jurisdictions approached the issue of an employee’s job security. Prior to 1877, laws regarding job security in America exhibited ‘a confusion of principles and rules’, 11 with early judicial decisions going in diverse directions. 12 In the

vant evolved from being status based, with customary duties and responsibilities, to being more contractual in nature. Historically, the master had quasi-parental duties such as to provide medical care, moral guidance, instruction on literacy and the administration of discipline, which could include corporal punishment. 13 Under this regime, employment relations were not of great importance in the law. The arrangement was not a matter of contract, but was imposed by the common law by way of public policy. 14 The law did not emphasise the subjective intent of the parties and what their relationship ought to be. 15

There are differing views about what the arrangements changed to. At that time, many contracts of service in the United States followed the yearly hiring principle derived from the English law of the master and servant, a subcategory of the common law of contract. 16 That law was formulated and made prominent in a statement by Sir William Blackstone in 1765. He said:

If the hiring be generally, without any particular time limited, the law construes it to be hiring for a year; upon a principle of natural equity, that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons, as well when there is work to be done as when there is not: but the contract may be made for any larger or smaller term. 17

Blackstone’s statement was designed in the shadow of earlier English statutes. For example, the Statute of Artificers 1563, the source for much of the English master and servant law, forbade employment for less than a year in order to restrict labour mobility. 18 Such restrictions were to lessen the impact of labour shortages. 19 In Beeston v Collyer the court implied a yearly hiring where there was no written contract, and the employee was paid monthly for the six years prior to his dismissal and was dismissed for no reason. 20

largely to provide job security to the agricultural workforce by preventing opportunism. Farmers, who worked long hours during the growing season, were at risk of being discharged after the harvest when they were not in such demand. 21 Interestingly, most courts levied forfeitures on a worker if he were fired, unless the dismissal was without just cause. 22 The regime provided job security and rigorous limits on dismissals for the period of a year.