how to exit the labor market. Government intervention in this area consists of both the direct provision of social benefits and the legal regulation of private benefit programs.

Certain elements of relevant public policy are simple to articulate. For example: age-based discrimination against workers over age 40 is illegal; all workers who participate in the Social Security system have some guaranteed health insurance, disability and retirement income protections, at least after specified periods of participation in covered employment. Beyond this, the terrain becomes more difficult. There are few special legal protections for aging workers. In general, employment policies must be age-neutral (although actuarially derived age-based benefit designs are generally permissible). That is, employers are required to treat older workers in the same manner as otherwise equivalent younger workers would be treated. The key question is whether the laws that mandate intervention in employment provide adequate protection to workers as they age, so that they can continue to work safely or so that they have the necessary economic security to exit at the appropriate time from the workforce. As noted in other sections of this report, the answer to these questions is not the same for all workers, in all industries. Moreover, there has been remarkably little study of the effectiveness of these mandated interventions in relation to older workers’ health and safety needs.

THE LEGAL CONTEXT

Employment at Will

The employment-at-will doctrine is at the core of the U.S. legal code governing the private sector employment relationship. Originally articulated in a 19th-century legal treatise, this doctrine allows an employer to discharge an employee “at will” (Wood, 1877). The employer is under no obligation to articulate a reason for the discharge. This is most often described as the right of an employer to discharge someone for a good reason, a bad reason, or no reason at all. In the pure application of the doctrine (as it existed in the early 20th century), an employer could legally discharge an employee because the employee was unproductive, too old, African American, an immigrant, a woman, disabled, simply because of dislike, or based upon any stigma or prejudice.

Within the context of dominant American common law, the at-will relationship between worker and employer results in a contractual relationship that can be terminated by either party without notice at any time. As a practical matter, this means that an employer may also change the specific elements of the bargain with a worker without notice: If the employee continues to work, he or she is generally deemed to have accepted the new



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