Employment-at-Will in the United States and the Challenges of Remote Work in the Time of COVID-19

Abstract

How should employers and employees negotiate the strange and unexpected issues that COVID-19 has forced us to confront in the past two years? Remote work, in particular, has dramatically changed the dynamic of many people’s jobs, often altering the tasks and boundaries of employment, blurring the lines between work and home, public and private. U.S. employment law, and particularly the powerful employment-at-will doctrine, sets a clear standard but can sometimes be a blunt instrument. Is there any nuance to be found, or to be desired, from employers in these unprecedented times of COVID-19? We will discuss the doctrine of employment-at-will, the standard it creates for American employment, and the various exceptions to it that have arisen over the past several decades. We will then examine a couple of hypothetical workplace scenarios that could arise in a work-from-home environment, discuss how current law would address them, and whether the letter of the law is the best source of guidance in these matters. We will further discuss the challenges faced by many companies as they attempt to deal with these abrupt changes to their working environments. What are the effects, if any, on long-standing employment traditions and practices? What are the legal issues that may arise from them?.