Washington Law Review


Warren Martin


Employees' primary interest in wrongful termination litigation is job security. Job security has many meanings. It may imply a tenure system with discharge for exceptional circumstances only. On the other hand, it may refer to a limited training and transfer system for reassigning displaced employees. The question is what type of "security" the average employee needs. Employers, by contrast, are primarily interested in management freedom. Restricting management's freedom to terminate employees affects the employer by increasing costs and reducing productivity. Productivity is reduced when management retains incompetent or unnecessary employees for fear of litigation. Costs are increased through both litigation and remedial costs. Moreover, society has an interest in minimizing, to the extent possible, the costs of resolving wrongful termination disputes. When balancing these interests, two questions arise: What restrictions, if any, should be placed on an employer's right to determine its workforce, and what forum, judicial or administrative, is appropriate to enforce these limitations? Courts and commentators generally agree that an employer should not have unfettered discretion to terminate an employee. Indeed, in forty-one states, courts have adopted some restriction governing the discharge of employees. By contrast, the question of the appropriate enforcement mechanism remains unresolved, and is, therefore, the focus of this Comment. For both theoretical and practical reasons, a judicial approach to wrongful termination is inappropriate. Instead, a statutory guarantee of termination only for cause, coupled with an administrative system of enforcement, can better balance the competing concerns. Such a scheme would benefit both employers and employees. Finally, Washington should adopt such an administrative system.

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