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 | Right to Work, My Ass

As an employment attorney with 30 years of experience, I can’t tell you how many times I have heard that South Carolina is a “right to work” state. In essence, the golden rule of employment law is less about the “right to work” and more about the “right to terminate” employment, which is founded in the principle of employment at will. This is a legal doctrine born from English common law, shaped during a time when societal norms were not so fair, with the servitude of workers to their employers reminiscent of a quasi-feudal state.

Employment at will allows employers to terminate an employee for a good reason, a bad reason, or, for no reason at all. This is a concept that is as antiquated as it is unjust, reminiscent of a time when the balance of power was significantly tilted toward employers. It harks back to an era of ‘Master-Servant’ dynamics, which have long ceased to be relevant or applicable in our modern society. With so many people in our society living paycheck to paycheck, the law should not protect anyone who terminates someone’s job for a malicious and false reason. But, indeed, that is the choice our courts continue to make.

Now, let’s consider South Carolina’s “right to work” laws. These laws prohibit an employer from dismissing an employee for refusing to join a union. But the term is, in many ways, misleading. It tacitly permits employees to reap the benefits of union negotiations – including improved working conditions and higher wages – without contributing to the union dues. In other words, it allows some employees to enjoy the fruits of others’ labors, without contributing to the cost of the tree. But, it really does not protect the right to work in a meaningful way, especially when you consider how rare union employment is in South Carolina.

The evolution of the law should look to departure from the arcane “employment at will” doctrine, and a move towards employment relationships more akin to other contractual arrangements. This should include the recognition of an implied covenant of good faith and fair dealing. This principle is a cornerstone of contractual law, with one glaring exception: employment law. There are several exceptions to employment at will, which can be the basis for a wrongful discharge claim. Discrimination laws are the biggest exceptions, but these are limited to discrimination based upon sex, race, religion, national origin, disability, age, and a few others.

Moving forward, a reinterpretation of employment law that incorporates the principle of the implied covenant of good faith and fair dealing is not just advisable; it is vital. This would ensure that neither party to an employment contract acts in a manner that would injure the rights of the other to receive the benefits of the agreement.

In conclusion, modernizing employment law is not a call to revolutionize the entire system. Rather, it is a call to recalibrate, to find a balance between employers and employees, ensuring a fair, equitable, and sustainable work environment. This is a complex issue that requires careful navigation, but time has long since passed when we should have looked to make employment law work for more of employees.

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