Is Employment Really “At-Will”?

In advising employers regarding disciplinary issues with an employee, I have found that they have often felt that it was not necessary to be able to substantiate their decision to fire the employee and end the employment relationship, on the basis that “employment-at-will” is the law of the land.

What is “employment-at-will” anyway?  It is simply that, absent an actual employment agreement (i.e. contract) between an employer and an employee,  an employer is free to end the employment relationship with an employee at any time, for any reason, with or without prior notice….and likewise the employee is free to end the relationship with the employer.  This is what is called “common law”, and it exists in just about every state in the U.S.

Then what is the big deal regarding the termination decision?  Why the need, in my opinion, and that of every employment attorney that I have dealt with, to tread carefully? The big deal is that, over time, numerous exceptions have been carved out from the “employment-at-will” doctrine, through court cases and regulatory reforms. And those exceptions vary state by state. Some states like California and New York have made so many such exceptions that the rule is no longer the rule. And the federal laws have also covered up much of what was left of the common law. Non-discrimination laws, non-retaliation laws, and other worker protections have created a minefield of hazards in making termination decisions.

In today’s workplace, employers should have solid reasons to terminate the employment of an employee, and in most cases should have already given the employee fair notice of the possibility of being terminated unless they correct their behavior or improve their performance (whichever the case).  In other words, you need to operate as if “employment-at-will” does not exist.

Trial juries, judges, arbitrators and government agencies such as the Equal Employment Opportunity Commission (EEOC), state civil rights and unemployment compensation commissions typically consider whether there has been fairness in dealing with the employee, which includes giving them notice of the need to change and a chance to do it, especially if they have been with that employer for a while and have not had previous performance problems.  They put themselves in that employee’s shoes and consider how they would feel about the fairness of the process….I suggest that you do the same.

Published by Dave Waldorf

Former Human Resource and legal professional specializing in HR compliance advisory services. Finding my new life in Arizona with my wife of 43 years and our two shelties.

One thought on “Is Employment Really “At-Will”?

  1. Today I ran across an online lament by a recently dismissed employee. Someone in one of the online comments on the lament wonders if the employer had been truly unaware of the cautions you outline here. The commenter then outlines several courses of action that the employee might have against such an employer, who has seemingly interpreted his state’s “employment-at-will” law as “fire-at-will.”


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