The Best Place to Get Fired: Hirsch Compares Employment Cases in the U.S. and Abroad

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Jeff Hirsch

Research by Carolina Law faculty members has thrust them into the national spotlight recently. Read the full article in the Spring-Summer 2014 issue of Carolina Law.

After talking with lawyers from all over the world, Jeff Hirsch, UNC School of Law’s associate dean for academic affairs and the Geneva Yeargan Rand Distinguished Professor of Law, concluded that workers who are fired elsewhere in the world are not necessarily better off than employees fired in the U.S. His article “Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism” was published in North Carolina Law Review in February 2014.

The U.S.’s at-will default rule has drawn criticism from employees and business owners alike. Workers object to the difficulty in bringing a discrimination case to court under an employment “at will” standard and also to its low win rates; whereas business owners complain that the awards are usurious when a fired employee wins a discrimination case, and that makes them less likely to fire someone or more likely to settle out of court.

In contrast, other countries in the world have some sort of specialized labor courts or administrative courts that fired workers can access easily and inexpensively, but they have statutory caps. It’s easier to bring a case to court and win in those countries, but the award damages are much lower than in the U.S.

“You hear over and over that the U.S. is completely different from the rest of the world,” Hirsch says. “But people haven’t been digging in to see how the laws are actually operating.”

So Hirsch and his co-author dug in. They interviewed labor and employment law practitioners around the world — because particularly in the U.S., “sometimes the law says one thing, but in practice, it operates a different way,” Hirsch says — and did other research online: “I learned the limits of Google Translator,” he says.

His results documented differences in the U.S. model and those of other countries, but they were more nuanced than many people thought. True, the U.S. model tends to favor high-income employees because they can receive high damage awards. Low wage workers, unless they are part of a class-action suit, won’t gain much. And low-award cases won’t pay the bills for a legal practice, so lawyers are reluctant to take them on.

However, his research uncovered a middle ground. He discovered a state in the U.S. that operates under a model closer to those outside the U.S. Montana — “Not a state you’d imagine as a trailblazer in employment law,” Hirsch says — has a model that encourages arbitration. Although employees push strongly for “just cause” protection — easy access to courts while maintaining the state’s no-caps-on-damages provision — Hirsch is skeptical that combination will be adopted anytime soon. The Montana model reflects a potential middle ground that might have bipartisan support.

“Maybe it makes sense to expand the Montana model, or move to something closer to what the rest of the world is doing,” Hirsch says.

With a greater understanding of the differences between employment cases in the U.S. and the rest of the world, Hirsch takes a more comparative approach in the labor and employment law courses he teaches, helping students understand that the U.S. model isn’t the only way to do things.

“One of the differences between a good lawyer and a great lawyer is the ability to understand how your construction of a claim or statute will work with other laws and in other cases,” he says.

“Lawyers help change laws, so understanding how other countries practice law is also important from a public policy perspective.”

-July 28, 2014

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