Abstract:
This book chapter is based on a larger project with Samuel Estreicher in which we examine in detail the unjust dismissals regimes of numerous countries. The study of these laws goes beyond the text of the relevant statues and cases, as it uses input 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 in practice.
The conclusion drawn from this study challenges the common “American exceptionalism” premise that argues that adopting a just cause rule would place the U.S. in the same company as the rest of the world. It is true that most countries provide employees with more protection against unjust dismissals than the U.S. But even on paper, the protections in many of the surveyed countries are often weaker than the typical American view of just cause protection assumes. Moreover, the actual practice in these countries frequently reveals even less protection, particularly when remedies are taken into account. These considerations make American dismissal law, although certainly weaker, appear less than exceptional.
In addition, the variances in unjust dismissal regimes suggest that many economic studies of employment protection fail to account for the full range of differences that exist among countries. For instance, a study on the effect of employment regulation on a country’s or firms’ economic performance should not rely solely on the laws as they are written because similar looking laws may have substantially different effects due to their available remedies or other operational disparities. Thus, studies should do more to account for these differences or, where appropriate data are unavailable, at least acknowledge that limitation.
Hirsch, Jeffrey M., A Comparative Perspective on Unjust Dismissal Laws (2012). in Global Labor and Employment Law: Reports from Law Offices Worldwide (Samuel Estreicher ed.) 2012.
