Defining Employment at Will – Ask #HR Bartender
Today’s reader note brings up a very common question about the employment relationship – the “employment at-will” doctrine.
Could you address the at-will law seen in most states except Montana? How do employees protect themselves, particularly if they are being managed-out or bullied?
To help us define at-will employment, I reached out to Eric B. Meyer, a partner in the Labor and Employment Group of the firm Dilworth Paxson LLP and publisher of the blog The Employer Handbook, which was recently voted the American Bar Association Journal’s top labor and employment law blog for 2013. “At-will employment allows the employer or employee to end their employment relationship at any time and for any reason or no reason at all.” So for those of you who are wondering, yes – this is the law that allows companies to fire employees without cause. But also keep in mind, it’s the same law that allows employees to walk off the job without notice. I bring this up because sometimes employees don’t realize employment at-will protects them too.
Often the concept of employment at-will is confused with another term called “right-to-work”. So I asked Eric if he could briefly explain the difference. “In contrast to the ‘at-will’ description above, ‘right to work’ means that an employee in a unionized workplace has the right to join or not join the union.” Only 24 states have right-to-work provisions. You can find a list of right-to-work states on Wikipedia.
In this note, the reader mentions “most states except Montana”. Eric shares what’s so special about Montana and the employment at-will doctrine. “In contrast to a state with employment at-will, employers in Montana need a reason (i.e., cause) to terminate an employee’s employment.” As a side note: Montana isn’t a right-to-work state either.
Now you might be wondering if there are some exceptions to employment at-will. Yes, and Eric explains what those exceptions are. “One example is that an employee’s membership in a protected class cannot motivate the termination. In other words, no discrimination allowed. Additionally, certain forms of retaliation are also unlawful (e.g., Family and Medical Leave Act (FMLA), Fair Labor Standards Act (FLSA), whistleblower laws). Further, many states also have limited public policy exceptions to ‘at-will’ employment. For example, in many states, an employee cannot be fired for missing work to serve on a jury.” To find out if your state recognizes an exception, you should call your friendly labor law attorney.
Lastly, I asked Eric his thoughts on the reader’s comment about employers using employment at-will to bully or manage-out an employee. Unfortunately, if an employee feels this is the case, there’s very little they can do legally but Eric did offer this piece of advice. “Employees should communicate workplace issues with a supervisor or human resources to resolve them before they escalate to termination or resignation.”
A huge thanks to Eric for sharing his expertise. If you want to learn more, be sure to check out Eric’s blog, The Employer Handbook, and follow him on Twitter. Oh, and if you’re attending the SHRM Annual Conference in Orlando this June, Eric is speaking a couple of times during the event. Once on social media and another session on FMLA/ADA – be sure to attend his sessions!
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