Keeping perspective on employment-at-will

Most Americans don’t think about employment-at-will until they’re terminated from their jobs. During her work at the Employment Law Center (ELC), a nonprofit public interest group in San Francisco, Pauline Kim, J.D., professor of law, saw firsthand that people simply did not know about this legal rule.

“Each week, the ELC held a drop-in and call-in clinic where low-income workers who had a problem or question about their rights on the job could get some legal advice,” Kim says. “I supervised law students interviewing the workers, so I was indirectly hearing the stories of 20-30 workers every week.

“One of the things that I heard over and over again was that many of the workers came in because they had lost their jobs and felt that they had been treated unfairly. We often had to counsel them that even if what happened to them was unfair, there was nothing we could do about it legally.

“Unless they are working under a contract that protects job security, employees are considered at-will, and employers can fire them for without having a good reason. There are some exceptions to this rule — for example, employers may not fire somebody for whistle-blowing or because of their race, sex, national origin or disability — but many fired workers were simply not protected by any of those exceptions.”

This experience deepened her interest in employment law research.

“When I started teaching, it was interesting to find that there was a group of legal scholars who defended the at-will rule on the grounds that it was just a default rule — something that could be contracted around,” Kim says. “They argued that the fact that we don’t see very many people contracting around this rule suggests that at-will employment is what most people want.

“That argument struck me as out-of-touch with the reality of most employees. I had just come from a practice where I was repeatedly talking with people who were surprised to find out that there wasn’t some legal rule preventing their employer from terminating them for an unfair or arbitrary reason.”

One of the first things that Kim did when she came to the University was to study employees’ understanding of the at-will rule by surveying several hundred workers about their beliefs about their employment rights.

“Similar to what I found in California, most of the workers misunderstood what the legal rules were and assumed they had some kind of legal protection against arbitrary discharge, when in fact, they didn’t,” she says. “That project provided a great bridge for me from practice to academia.”

In addition to growing her interest in research, Kim’s time at the ELC reignited her desire to teach.

“In the back of my mind, I always knew I wanted to teach,” she says.

“I did a little bit of TAing along the way as an undergraduate as well as in law school. Academia appealed to me because I found that I enjoyed teaching students. Plus, having the opportunity to think and write about some of the bigger issues in the law in more depth, without the constraints of representing a particular client was also appealing.”

At WUSTL

At the law school, Kim enjoys researching a variety of employment law issues.

“I really like employment law because it has this real human dimension to it,” she says. “A lot of employment cases are termination cases. People have compared them to industrial divorces. They are like a relationship that has gone sour and there are often hurt feelings and blame going both ways.

“At the same time, employment is a very fundamental economic relationship. Labor is an essential part of how things, goods and services are made, provided or produced.”

Kim is working on a project concerning employee privacy in light of recent controversies over whether and to what extent an employer can intrude on an employee’s person, things and private life through practices like drug testing and computer monitoring.

“I’m looking at the difference between thinking about those privacy interests in collective terms as opposed to individual terms,” Kim explains. “There has been a shift over the last half-century from a collective bargaining to an individual-rights-based model for protecting employee rights. My research explores the consequences of that shift for protecting employee privacy.”

Outside employment law, Kim is working on a project that looks at judicial decision-making, particularly by lower-court judges.

“Because of the nature of laws and legal rules, the superior court can’t always provide rules that will tell the lower court what the outcome should be in each case,” she says. “So the article I’m working on examines the idea of judicial discretion within the judicial hierarchy.

“I’m interested in what it means to be an appellate court judge, for example, who has to respond to guidance given by the Supreme Court and whose decisions may be reviewed by the Supreme Court.

“At the same time, that judge in turn has power to review the decisions of the lower trial courts. So how do judges try to control the decision of the courts below them? And how do they exercise the freedom that inevitably exists because the legal rules hand down from above are not complete and permit the exercise of discretion?”

Kim’s work at the University reaches beyond the walls of Anheuser-Busch Hall. She co-founded and organized the Workshop on Empirical Research and the Law (WERL). The workshop brings together faculty from law and Arts & Sciences.

“We met regularly to read and discuss recent empirical research on the law and legal institutions,” she says. “One of the advantages of Washington University is that it’s a first-rate university, but it exists on a human scale.

“The business school is just across the way, political science and economics are right next door. You can actually get together with people and make connections across departments and schools in a way that is hard to do at some bigger universities.”

Her work is noticed — and appreciated — by her students and colleagues.

“Pauline Kim has rapidly become one of the best-known and best respected employment law scholars and teachers in the nation,” says Kent D. Syverud, J.D., dean of the School of Law and the the Ethan A.H. Shepley University Professor. “Yet her research and teaching are so much broader even than this wide field.

“She is a treasure to Washington University faculty and students.”

According to Andrew Martin, Ph.D., WERL participant and associate professor of political science in Arts & Sciences, Kim is “truly committed to interdisciplinary scholarship.”

“Pauline is among the most curious and insightful people I know,” Martin says. “She brings her legal expertise to the table, and is very interested in drawing on whatever fields inform the questions she finds interesting, including political science, economics and psychology. Our collaborative work on forecasting Supreme Court decisions would not have been possible with Pauline’s significant contribution.

“Almost every time I talk to Pauline, I learn something interesting.”

Homecoming

Accepting a position at the University marked a return to St. Louis for Kim.

“I’m from St. Louis,” she says. “When I graduated from high school, I did not intend to return to St. Louis. I wanted to go away, see the world and live in a big city. So I did. I went to school on the East Coast and practiced law on the West Coast.

“Then, at one point, my husband and I were both looking for jobs. I wanted an academic job and he was finishing his residency.

“Washington University had both a strong law school and a strong medical school. And though St. Louis happened to be where I was from, that fact seemed to be a positive rather than an obstacle. We were fortunate enough that we both got jobs at Washington University, so we came back.”

Kim and her husband, Philip Lee, spend most of their time outside of work with their kids, Jocelyn and Nicholas.

“We’re usually running around to their activities and school events,” she says. “We also love to go bicycling in Forest Park and wall-climbing.”

Kim has enjoyed her time at the University.

“I find it incredibly hard to believe that I’ve been here 12 years,” she says.

“The law school’s a really exciting place right now. We’ve got a great new dean. There’s been enormous forward progress since I first got here. Our students are getting better and our faculty is getting better. It’s exciting to be here.”