I can fire you if I want to!
November 13, 2018
November 13, 2018
What does At Will mean?
As a general rule, employees are at-will, absent a contract, and may be terminated at any time, for any reason or for no reason. Conversely, though, an at-will employee may resign at any time (with no notice) and for any reason.
Violation of a public policy- the employee must show that there is a clear mandate of public policy expressed in the constitution, legislation, administrative regulations, or judicial decisions. However, public policy can be found in the above areas whether it be from state law or federal law.
In ruling on public policy wrongful discharges, the court must first decide if an important public policy is threatened. However, even if an important public policy is threatened, the employer may still discharge the employee if it had a “separate, plausible, and legitimate reason for so doing.”
Some examples of terminations that could violate public policy are terminating an employee for filing a workers comp claim after an injury or refusing to break the law at the request of the employer.
42 of the states recognize a public policy exception, the below 8 do not:
- New York
- Rhode Island
Implied Contracts- Under this exception, an employer may not fire an employee when an implied contract is formed between an employer and employee, even though no express, written instrument regarding the employment relationship exists. The burden of proving this is on the employee and is often difficult. 36 States have an implied contract exception. The 14 who don’t are below:
- North Carolina
- Rhode Island
Covenant-of-good-faith- This exception has been interpreted to say that all employment relationships either have to have just cause for termination or that terminations made in bad faith are prohibited. Only 11 states have this exception and they are below:
Employment Contracts for a Specific Term
An Employee is presumptively an at-will employee unless the employee provides clear proof of a specific duration to the contract. In such a case, the employee may only be discharged before the end of the term if just cause exists. Cases where a specific term has been found:
- A contract that contains a 90-day notice provision for termination will be a contract for at least 90 days employment after the notice period is invoked.
- A contract that has a term of one year is enforceable, especially where the notice period is only expressed in terms of renewal or non-renewal of the contract.
Cases where a specific term has not been found:
- Guarantees of employment for life or permanent employment are seldom enforceable.
- A salary expressed over a certain period of time (e.g. annually) fails to establish a contract for a specific duration.
- A promise to employ for so long as the employee performs satisfactorily fails because the promise is too ambiguous to enforce. An employer telling an employee that the hiring is for a long-range project lacks sufficient specificity to enforce.
At-will employment does not prevent former employees from filing wrongful termination claims:
Employers can take steps to preserve the at-will employment relationship in their policies and procedures, and employment offer letters. Written policies, including employee handbooks, and offer letters should clearly state that employment is at-will and nothing in the document is intended to establish an employment contract. If an employment contract is deemed to exist, it could nullify the benefit of at-will employment — the right to terminate without cause.
Even if you live in an “employment-at-will state,” you do not really live in an employment-at-will state
The employment-at-will rule does not apply to terminations that are conducted for unlawful reasons. And, as we all know, the list of ‘unlawful’ grounds for termination is ever-growing. A termination because of race, sex, national origin, religion, color, age, disability, or, now, genetic information, or retaliation for related protected activity, violates federal law and many state laws.
So, now you may be thinking: Well, ok, but I’m not terminating this person for any of these reasons. I’m terminating him because I just can’t stand him. Doesn’t that fall under employment at will?
The answer is yes and no. Yes, because that is a facially lawful reason in an employment-at-will state. But also no, because an employee who is terminated for an arbitrary or unfair reason will have a much easier time claiming — and possibly persuading an agency, judge, or jury — that the stated reason is false and that the employer’s real reason was an illegal one.
Even in an employment-at-will state, an employer should make sure that termination decisions are fair
This would usually include specifically warning a substandard employee about their deficiencies and giving them an opportunity to improve, as well as good documentation, and the process being conducted in a manner that is consistent with the employer’s policies and procedures.
What States are At Will?
49 states have adopted laws that protect employers in an at-will setup. The only state that hasn’t is Montana.
If you have any questions after reading this article you can reach out to Leadership Arts Associates for guidance. You can reach me at email@example.com or 717-430-2850.