Comparative Wrongful Dismissal Law: Reassessing American Exceptionalism

BY Samuel Estreicher & Jeffrey M. Hirsch
Commentators have long debated the merits of the American “at-
will” rule, which allows employers and employees to end the
employment relationship without cause or notice, absent a
constitutional, statutory, or public policy exception. One premise
for both proponents and opponents of at-will employment is to
stress the uniqueness of this default among other developed
countries, which generally require “cause” for most dismissals.
Although other countries’ cause regimes differ significantly from
the United States’ on paper, this Article addresses whether those
differences in normative law also reflect differences in
employees’ protection against wrongful termination in reality.
The existing literature on dismissal law stops at a comparison of
countries’ normative laws as they appear on the books. In comprehensively examining the dismissal regimes of numerous
countries, this Article goes beyond the text of the relevant statutes
and cases by using information from foreign employment law
practitioners and available data—particularly claimants’ success
rates and average remedies—in an attempt to observe how the
laws actually operate. The authors find that, even on paper, the
cause protection of the surveyed countries is far less robust than
typically described. Moreover, the actual practice in these
countries shows that challenges to dismissal can be difficult to
pursue and generally result in modest remedies by U.S.
standards. This suggests that the United States, with its at-will
default and broader remedies, is actually part of a relatively
narrow continuum of employment laws found in advanced
This Article hopes to spur more in-depth descriptive work on the
employment laws of other countries and to broaden the terms of
the debate over the relative merits of the U.S. employment
dismissal system and the dismissal systems of cause regimes.
DOWNLOAD PDF | 92 N.C. L. Rev. 343 (2014)