Except as agreed otherwise in specific contract, employers have had the power to fire employees "at will" in the American common law. The "at will" doctrine requires no justification for dismissing anybody. This rule pertained from at least the middle of the 19th century until the seventh decade of the 20th century. In the 1970s the American common law of employment began a drastic change. Cases flooded the courts in the 1980s. In almost every jurisdiction in the United States, the "at will" doctrine suffered attrition in the courts. In nearly every state, employees are able to sue employers under one or another theory of wrongful termination of employment, and to obtain legal relief for that termination if the termination can be found wrongful. In some jurisdictions, extraordinarily large damages have been awarded.

This revolution in the law has not occurred in an orderly fashion. Differing theories of relief pertain in different jurisdictions. A claim for relief that may be successful in one jurisdiction may not be successful in another. The effect is extensive capriciousness in determination of liability and award of damages from jurisdiction to jurisdiction. The economic impact of this capriciousness upon employers, employees, and the economy as a whole is incalculable. Nobody can doubt that it is expensive, however. In addition to being capricious, the existing state of law has a serious socioeconomic bias.

Most of the successful cases have involved upper-level management in larger businesses. Relief has mostly gone to those with upper middle-class incomes or better, those with the ability to go to the courts and sustain the costs and risks of litigation. People with middle-class or working-class incomes have not been so fortunate. The expense of litigation mostly precludes seeking a remedy when salaries or wages are not very large. Yet, among persons who do not have the benefit of labor contracts and whose incomes are comparatively modest, the need for protection is the greatest.

In 1991 it is not possible to return to the original common-law rule. The common law development of the last two decades indicates neither the desirability nor the possibility of that option. At the same time, a reasonable, uniform solution that fairly balances the equities of both employers and employees seems essential to eliminate the social and economic costs inherent in the current confused situation. The Uniform Law Commissioners propose to remedy these defects in the growing law of employment termination, beginning in 1991, with the Model Employment Termination Act (META). It offers the states, for the first time, a fair solution to the problems inherent in the recent common law revolution of employment law.

Any qualified employee under META may not have his or her employment terminated without "good cause." An employee is anyone who works for hire. But not all employees are covered by META. An employer that employs fewer than five employees is not subject to META, for example. Each state is left to decide whether to apply META to employees of local government, and should make the determination based upon existing law protecting municipal employees. In addition, an employee must serve an employer for a significant enough time to be qualified for "good cause" termination. An employee must be employed by the firing employer for one year or longer. Moreover, the employee has to have worked for the employer at least 520 hours during the 26 weeks next preceding the termination. An employee, so qualified, is entitled to protection under META.

The good cause standard can be waived or modified, also, in specific agreement. However, a complete waiver is obtainable only if the employer agrees to severance pay upon dismissal equal in amount to one month's pay for each full year of employment-up to a maximum amount of 30 months' pay. If there is a contract of employment for specific duration related to the completion of a specified task, project, undertaking, or assignment, the termination of employment based upon the running of that contract, also, is not subject to the good faith standard.

Also, nothing in META displaces rights and claims arising under collective bargaining agreements. But, at the same time, employees under collective bargaining agreements are not deprived of their rights under META. State and federal government employees are treated the same way as employees subject to collective bargaining agreements. They are deprived of nothing in the law and regulations pertaining to their employment. They have their rights under META.

"Good cause" is carefully defined in META. Basically, it can be one of two things. The employee's own inadequate or improper conduct in the performance of the job is one kind of "good cause." The second involves the economic or institutional goals of the employer. If these goals require reorganizations, discontinuing functions, and changing the size and character of its work force, employees discharged as a result are discharged with "good cause." Of course, such determinations must be in "good faith," which means that they must be honestly made. Thus an employer, who must in good faith curtail operations because of lost markets or any downturn in business, can discharge employees to survive these adverse business conditions.

If a qualified employee is terminated without "good cause," META provides a remedy for that discharge. The remedies that may be sought under META are reinstatement, back-pay, lost benefits, or, in the alternative, a lump-sum severance payment. META excludes recovery for pain and suffering, emotional distress, defamation, fraud, punitive damages, compensatory damages, or any other monetary award. Attorney's fees are recoverable, so that employees with modest incomes have an opportunity to obtain legal assistance in bringing legitimate claims.

Perhaps the most significant aspect of the remedies provisions is the reliance upon arbitration for determination of any award under META. Enforcement in META is entirely by arbitration. Judicial review of arbitration awards is permitted only for various abuses of the discretion or office of the arbitrators. Review is not in any sense "de novo."

META also protects employees who participate in termination proceedings. No employer can retaliate against an employee for filing a complaint, giving testimony, or otherwise lawfully participating in proceedings under META. Any retaliation can make the employer subject to damages, including punitive damages.

META would provide fairer and more efficient adjudication of employment termination cases in any adopting jurisdiction. It is an important step forward for state law.