Document Type
Article
Publication Date
2025
Abstract
For most of history, pro-worker legal reform has meant legislative action. By contrast, this Essay, prepared for the 75th Annual NYU Conference on Labor & Employment Law, looks to contract law as the source and site of progressive change.
This may seem odd. Contract has primarily been a tool of management. Terms set by the “parties” to an employment relationship, are likely to be those imposed by the employer. Yet contract law is essential to employment law reform. Protective legislation is incremental and discrete. Beyond its provisions, the employment relationship is defined entirely by private ordering. The day-to-day experience of workers on the job, the assurances they receive, and the expectations they develop all depend on contract law.
Unfortunately, employment contract law has evolved in ways that fail to provide a fair or coherent approach to these rights. Courts historically took the view that employment was a unilateral contract, if it was even a contract at all. But that conception does not fit the dynamic, relational quality of employment where terms and expectations evolve and change over time. The result is a rigid, technical body of law that obscures important policy choices about what should count as a binding employer commitment.
Surprisingly, the solution to this problem lies in contract law itself. Over the last century, mainstream contract law has developed a more flexible approach to contract formation and interpretation that recognizes and supplements indefinite obligations. These moves within general contract law provide the building blocks for a more transparent, coherent, and equitable approach to employment contract rights in at-will relationships.
This Essay reimagines employment contract law from this contemporary perspective. It sketches an alternative approach to employment contract law that maintains many of the core features of employment-at-will, but grants employees an initial period of job-protected employment, requires employers to provide reasonable advance notice of termination, and limits employers’ ability to contract away these duties through boilerplate disclaimers.
Recommended Citation
Rachel S. Arnow-Richman, Employment Law Reform from a Contracts Perspective, 38 J. Lab. & Emp. L. 375 (2025).