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2017 U. Ill. L. Rev. 223 (2017)
The Best Way out Is Always through: Changing the Employment at-Will Default Rule to Protect Personal Autonomy

handle is hein.journals/unilllr2017 and id is 227 raw text is: THE BEST WAY OUT IS ALWAYS THROUGHt: CHANGING THE EMPLOYMENT AT-WILL DEFAULT RULE TO PROTECT PERSONAL AUTONOMY Matthew T. Bodie* Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption-a strong one- that the contract for employment allows either party to terminate the contract at any point in time. Since its in- ception, this bright-line rule has given way to carefully curated excep- tions, primarily to protect against discrimination and retaliation. This Article proposes that state courts create a new exception to the at-will rule-or, perhaps more accurately, acknowledge an intricacy within the existing default. The personal-autonomy presumption would modify at-will to make clear that employers will not take any action against an employee based on the employee's personal autonomy, so long as that autonomy does not interfere with the employer's business or reputation. Employee personal autonomy would be defined to in- clude political affiliations, religious observance, and recreational ac- tivities. The default rule would hold that, as part of the bargain be- tween employer and employee, the employer agrees not to leverage the power that it exercises in the work realm to influence employees improperly in the personal realm. In order to change the default au- tonomy rule, employers would need to further develop their expecta- t ROBERT FROST, A Servant to Servants, in NORTH OF BOSTON 66 (1914) (He says the best way out is always through./And I agree to that, or in so far/As that I can see no way out but through. .. .). * Callis Family Professor, Saint Louis University School of Law; Co-Reporter, Restatement of Employment Law. This Article represents my own perspective and not those of the American Law Institute or my fellow reporters. I am much obliged for comments from participants in the Saint Louis University Faculty Workshop Series and the 2014 Law & Society Annual Meeting, as well as thoughts and suggestions from ALI members and advisors on the multiple iterations of § 7.08 of the Restate- ment. I am also grateful to Saint Louis University School of Law for funding through its former Sum- mer Research Grant program. I greatly appreciate comments and suggestions from Miriam Cherry, Dennis Corgill, Zev Eigen, Michael Fischl, Ruben Garcia, Charlotte Garden, Jesse Goldner, Tim Greaney, John Griesbach, Rebecca Hollander-Blumoff, Marcia McCormick, Carol Needham, Karen Sanner, Paul Secunda, and Doug Williams. In addition, I was fortunate to receive thoughtful feedback on earlier drafts from students in Miriam Cherry's Virtual Work and People Analytics classes. Many thanks to Jim Dougherty and Cody Huffines for excellent research assistance. 223

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