When you hire a candidate “at will” you may think you are completely protected from legal repercussions should you decide to let that employee go. Think again. There are many exceptions, exemptions, and special considerations to contemplate whenever a candidate is hired at will.
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“At-will employment” refers to the ability of any employer or employee to terminate employment without announcing a cause or giving warning. This is considered common law in most states. However, many states have their own list of exceptions and special considerations. Today we’ll explore the most common lists of exceptions and exemptions for at will employment.
Exceptions to At-Will Employment
At-will employment generally refers to the situation in which an employer or an employee can terminate employment “at-will”—that is, without any cause, and without legal repercussions for doing so. It’s also typically held to mean that employers are free to change the terms of employment at will as well—even without notice.
While at-will employment offers essentially no protection from unexpected termination for employees, it also gives employees the freedom to leave an employer at their own discretion as well, without first having to meet any criteria.
That said, at-will employment does have some exceptions that employers need to be aware of*.
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Situations Where At-Will Employment Does Not Apply:
Here are the primary times when the at-will doctrine does not apply:
- When there is an actual contract:
- In cases where an employee has a written contract, all terms of that contract will supersede the at-will doctrine. In other words, if the contract spells out terms that specify the circumstances under which employment can be terminated, then these must be followed. In the absence of a written contract, employment is generally presumed to be at-will.
- Collective bargaining agreements also act as contracts. These often have clauses that govern terms of employment, including allowable reasons for termination.
- Another possible exception would be for employees working for an overseas branch of a U.S. company, since local regulations may apply. Local regulations will apply if the employee has a (written) local contract or if the employee is considered to be a “local” employee. Employment regulations in other countries often do not allow termination for no reason, and they often have specific terms regarding when termination can occur.
- When there is an implied contract:
- Implied contracts can come in many forms, and sometimes a contract is implied even when it wasn’t intended, such as:
- Offer letters that contain specific employment terms, in some cases.
- Employer policies, including some components of an employee handbook, if not written carefully.
- Statements, either written or verbal, made by supervisors or managers that imply specific terms or imply that an employee or employees will not be terminated, or will not be terminated without cause.
- Statements or policies that otherwise outline that a specific disciplinary procedure must be followed before a termination can be made.
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- When it is illegal to terminate:
- Terminations for discriminatory or retaliatory purposes are not allowed, even in at-will employment situations. For example:
- An employee cannot be terminated for inclusion or association with a protected class as outlined in Title VII of the Civil Rights Act. Protected classes include race or color, religion, sex, and national origin.
- An employee cannot be terminated for participating in an investigation of discrimination or harassment.
- An employee cannot be fired as retaliation for whistle blowing.
- There are other examples, but the key is that at-will does not preclude illegal discrimination or retaliation.
- There are also exceptions based on an established public policy or law. For example:
- Employees cannot be terminated for taking legally protected leave, such as FMLA or workers’ compensation leave.
- Employees also cannot be terminated for other protected acts, such as reporting a safety violation or refusing to participate in illegal activities.
- In some states, employees cannot be fired for off-duty activities, as long as those activities are legal.
*As of this writing, only Montana did not have an at-will doctrine on the books. All other states do.
Tomorrow’s Advisor will explore another situation where at-will employment does not apply, as well as how employers can make sure their at-will status remains intact. Plus, an introduction to an interactive webinar, Hone Those Recruiting Skills! The Top 10 Actions That Will Make You an Exceptional Recruiter.