Norms, Learning, and Law: Exploring the Influences on Workers' Legal Knowledge
Pauline T. Kim | 1999 U. Ill. L. Rev.
An initial survey of workers in Missouri documented widespread misunderstanding of the default rule of employment at will. This article presents additional data, collected in New York and California, confirming previous findings that workers consistently overestimate their legal rights. Contrary to the assumption commonly made by defenders of the at-will rule, these data indicate that workers do not understand the default presumption, but erroneously believe that the law affords them protection akin to a just cause contract, when, in fact, they can be dismissed at will. The patterns of responses in each of the three states are remarkably similar, despite wide variations in the states' laws. Although the three states differ significantly in their recognized exceptions to the at-will presumption, the state-by-state variations in responses to the survey questions do not appear to correlate with these variations in the law. Multivariate regression analyses further suggest that experiential factors such as past union representation, responsibility for hiring and firing of other employees, the experience of being fired, and length of work force experience do not significantly affect the accuracy of workers' perceptions of their legal protections. Contrary to the predictions of a rational actor model, these findings suggest that workers' erroneous beliefs about the law are not influenced by variations in state law and are resistant to change through experience. This article advances the theory that worker confusion of norms and law best explains the pattern of responses observed in this study. Drawing on theories of the internal labor market, it describes how common employer practices and policies for governing internal employment patterns might give rise to a fairness norm forbidding employee discharges without cause. The results of this study suggest that such a fairness norm strongly shapes worker expectations of their legal rights and that it overshadows the influence of most demographic and experiential factors on those expectations. Thus, it appears that workers do not readily distinguish between informal norms and enforceable legal rights, between what they believe the law should be and what it actually is.
* Associate Professor, Washington University School of Law, St. Louis; A.B., Harvard University; J.D., Harvard Law School. This study was supported by a grant from the Fund for Labor Relations Studies. Jason Mazer, Jeffrey Chod, Jai Khanna, Paul Gennari, and Nelson Mar provided invaluable research assistance. I am indebted to Lauretta Conklin for her assistance with the statistical analysis and to Jane Aiken, Stuart Banner, Robert Ellickson, Kathy Goldwasser, Kent Greenfield, Brad Joondeph, Dan Keating, Ron Levin, and Bob Thompson for their helpful comments. An earlier version of this paper was presented at the 1998 American Law and Economics Association Annual Meeting's panel on Labor, Discrimination and Family Law.