At-Will Employment and Exceptions

While at-will employment may not be a concept that is widely talked about, it is actually quite often used and misunderstood. All around the world, workers are hired and fired for a variety of different reasons.

Whether or not it is the direct fault of the employee, companies may find that it is necessary to let someone go. In many places, employers must be able to prove that there is a legitimate reason for this separation with their employee. In many states across the United States, however, employers do not need to provide such information.

Although at-will employment states have different laws and regulations involving the relationship between employers and their employees, it may not always be obvious why those rules exist in the first place. However, while this system of employment is often seen as a beneficial one, there are also plenty of exceptions to the rules. This article will outline the definition and purposes of this style of employment, as well as inform you of the different exceptions to the forms that exist today.

What is at-will employment and who uses it?

Simply put, at will employment is the concept that at any time and for whatever legal reason, an employer has the right to let go of any of their employees. Additionally, it means that employers using this tactic can change their employment terms without notice, which could put their employees in a position to be fired. While not every employer operates in this manner, as discussed below, many do. Therefore, in order to fully understand the terms of your work contract, learning about employment rules and laws is an important step to take.

The legality of this concept is very important, as there are many different factors that can be labeled as illegal grounds for termination. Some reasons for which an at-will employee might be fired illegally include physical ones, such as discrimination, or even personal ones such as retaliation against whistleblowers. These are all meant to protect employees from wrongdoing, as well as the details of their contract and the other exceptions listed below.

Common Law Exceptions to the Employment At-Will Doctrine

Learning what is at-will employment and what isn’t can be difficult, especially if you are being asked to agree to many different documents when you are signing your contract. However, even if your new job is at-will, which nearly always benefits the employer, there are some exceptions to this rule that have been designed over time to put more power back into employees’ hands.

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The first form of these exceptions is the most commonly accepted, which is the rule of common law. Common law exceptions refer to principles that may not always be written down as law but are often considered to be generally accepted. The employment at-will doctrine for common law exceptions involves all of the following:

  • Implied Contracts. When an employer tells you that your job is safe as long as you keep up the great work, this can lead to ambiguity when it comes to firing for a probable cause. Unless your employment contract uses clear and precise language, anything said by an employer may be used against them when firing an employee.
  • Covenants of Good Faith. This refers to protecting at-will employees before a certain event that changes their status. Breaking this exception could involve firing a professor right before he gets his tenure or firing a salesperson so that they cannot get their cut of a big sale.
  • Public Policies. Many actions taken by employees should not be used against them by their employer, especially if those actions are publicly accepted. This includes performing jury duty, telling the truth about company wrongdoings under oath, filing for workers’ compensation and more.

Of course, these at-will employment common law exceptions are not enforced in every state, and each state has their own interpretation on many different employment laws. For example, while the public policy and implied contract exceptions are not enforced in Georgia and Florida, the covenant of good faith exception is enforced in both states. On the contrary, states like Vermont and Hawaii enforce all three common law exceptions, while no states disallow all three.

What are statutory at-will employment exceptions?

The exceptions above are important to keep in mind, as they can protect employees from a wrongful termination due to generally accepted rules. However, employment at-will exceptions can also be cited as statutory legal complaints. It is illegal to fire someone working at-will:

  • If they are being discriminated against due to their nationality, race, gender, religion, age or other such identifying characteristics.
  • If they refuse to take a lie detector test, which are inadmissible in court.
  • If they are complaining about some sort of wrongdoing by the employer, such as paying less than the minimum wage, not paying at all, having work conditions that do not meet code, committing tax evasion and more.
  • If they are asserting their right to free speech, even if that speech is being used to claim discrimination against themselves.

As with common law, at-will employment states can vary on their implementation of statutory law exceptions. For example, because it is legal to smoke marijuana recreationally in Colorado, employers are not legally permitted to fire their employees for choosing to partake in such activities, as long as it occurs on their own free time and does not in any way impact their job. While most states have a “good cause” provision that allows employees to legally challenge their termination if they believe that they were fired without probable cause, the only state to give these employees specific legal rights and protections related to this concept is Montana.

While at-will employment is a concept that has many potential workarounds, as outlined above, it is still an essential aspect of the American workforce. Without it, certain businesses may not be able to thrive as much and employ workers who truly embody their ethics and skillsets. By learning and understanding the purposes of and exceptions to this crucial employment presumption, you can be more aware of your potential responsibilities and rights as a worker.

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