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77 N.Y.U. L. Rev. 6 (2002)
How Wrong Are Employees about Their Rights, and Why Does It Matter

handle is hein.journals/nylr77 and id is 20 raw text is: SYMPOSIUM HOW WRONG ARE EMPLOYEES ABOUT THEIR RIGHTS, AND WHY DOES IT MATTER? CYNTHIA L. ESTLUND* Most employees are terminable at will, yet apparently most believe they only can be fired for cause. That belief persists in the face of a standard at-will disclaimer. In this Essay, Cynthia Estlund explores some causes, consequences, and possible legal responses to that gap between employees' beliefs and reality. She suggests first that employers, by acting as if they must justify discharges, may foster employees' erro- neous beliefs by contradicting the words of a disclaimer. Whatever its source, the gap is problematic because it allows employers to enjoy both the benefits of em- ployee perceptions of job security and the benefits of employment at will. In princi- ple, switching the default to for cause should help bridge the gap. A weak default, however, would be defeated by an at-will disclaimer, and would accomplish little. Employers already act as if the default is for cause and disclaim it; employ- ees do not credit that disclaimer. A stronger default, such as a waivable right to for- cause protection, holds greater promise. If the standard for waiver is high enough to ensure that employees understand their rights, employers would have to choose between the benefits of employees' expectations of job security and the benefits of employment at will. This Essay concludes by sketching a case for bringing the law into line with employees' optimistic beliefs. INTRODUCTION The law often relies on assumptions about human behavior and cognition that correspond to the economists' rational actor model. The venerable reasonable man himself embodies some of these as- sumptions. The relatively new field of behavioral economics, which posits and documents regular, systematic deviations from the standard rational actor model, thus has much the same subversive potential in law that it has in economics. Should the reasonable person be presumed to think one way if we know that actual people process in- formation in predictably different ways? The questions raised and the evidence adduced by behavioral economists are especially important in employment law, which regulates the interactions of average folks who act without the benefit of legal or other expert advice on matters that are crucial to their well-being. * Professor, Columbia Law School. B.A., 1978, Lawrence University; J.D., 1983, Yale Law School. 6 Imaged with the Permission of N.Y.U. Law Review

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