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Zombies, unicorns, and employment law―oh, my!

by Boyd Byers

My 15-year-old daughter is an avid reader. She also has an offbeat sense of humor (which she must get from her mother). So perhaps I shouldn’t have been surprised to find a book titled Zombies vs. Unicorns lying around the house. “It’s a question as old as time itself: Which is better, the zombie or the unicorn?” the book jacket teases.

Of course, such weighty conflicts and comparisons have existed throughout history―good vs. evil, cats vs. dogs, Yankees vs. Red Sox, King Kong vs. Godzilla, VHS vs. Betamax, and, most recently, Alien vs. Predator. In that spirit, let’s examine two separate and distinct legal concepts that sometimes are misunderstood or confused with one another: right to work vs. employment at will.

Right to work
Right to work has nothing to do with employers’ ability to hire or fire, nor does it refer to employees’ right to unionize. Rather, a right-to- work law prohibits unions and employers from entering into contracts that require workers to join a union or pay union dues as a condition of employment.

Right-to-work laws exist in 23 states. However, even in states without right-to-work laws, union membership cannot lawfully be required. The U.S. Supreme Court ruled in 1985 that union members have the right to resign their union membership at any time. But absent a right-to-work law, employees can be required to pay union fees if the employer and the union contractually agree to such an arrangement.

Mastering HR Report: Labor and Organizing

Employment at will
Employment at will is the legal doctrine under which, absent an express contract that provides a definite period of employment or limits the reasons for discharge, either party to an employment relationship can end the relationship at any time, for any or no reason, and without notice. Every state except Montana follow the employment-at- will rule. By contrast, employees in most other industrialized nations cannot be discharged without good cause.

Of course, there are numerous exceptions to the employment-at-will rule. Discrimination laws prohibit discharge (1) based on race, gender, and other protected classifications or (2) in retaliation for exercising rights under those laws. In addition, courts in more than 40 states have created public-policy exceptions that make it unlawful to discharge employees for things like whistleblowing, refusing to violate a law, or exercising their rights under employee protection laws.

50 Employment Laws in 50 States, including at-will employment

So now you know the difference between right to work and employment at will. We’ll leave the finer points of zombies vs. unicorns for another day.

They said it
Unicorns don’t care if you believe in them any more than you care if they believe in you.

―Unknown

Zombies are the middle children of the otherworldly family. Vampires are the oldest brother[,] who gets to have a room in the attic, all tripped out with a disco ball and shag carpet. Werewolves are the youngest, the babies, always getting pinched and told they’re cute. With all that attention stolen away from the middle child[,] Zombie, no wonder she shuffles off grumbling, “Marsha, Marsha, Marsha.”

―Kevin James Breaux

Boyd Byers is a partner with Foulston Siefkin LLP in Wichita, Kansas. You can contact him at bbyers@foulston.com or 316-291-9716.