Employment At Will
Learn whether your employer must have a good reason for firing you.
Job applicants and new employees are often perplexed to read — in a job application, employment contract, or employee handbook — that they will be employed “at will.” They are even more troubled when they find out exactly what this language means: An at-will employee can be fired at any time, for any reason (except for a few illegal reasons, spelled out below). If the employer decides to let you go, that’s the end of your job — and you have very limited legal rights to fight your termination.
If you are employed at will, your employer does not need good cause to fire you. In every state but Montana (which protects employees who have completed an initial “probationary period” from being fired without cause), employers are free to adopt at-will employment policies, and many of them have. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.
This article will help you figure out whether you’re employed at will, what rights you have as an at-will employee, and what you should do if your prospective or current employer asks you to sign an at-will agreement.
Are You an At-Will Employee?
The law generally presumes that you are employed at will unless you can prove otherwise, usually through written documents relating to your employment or oral statements your employer has made.
Many employers take pains to point out, in their written policies, applications, handbook, job evaluations, or other employment-related documents, that their employees work at will. If you are currently employed, look through your employment documents — particularly those you have signed — to see whether any of them mention at-will employment. If you have signed a document agreeing that you are an at-will employee, that’s probably the end of the story.
If you have not signed an at-will agreement, check your employee manual or other written workplace policies — do they state that you can be fired at any time? That you can be fired without cause? Even if your employer does not use the term “at will,” statements that you can be fired without a good reason are indications that your employer follows an at-will policy.
On the other hand, some employers have written policies that require good cause to fire, provide an exclusive list of reasons for which employees can be fired, or otherwise provide employees some job protections. If your employer has adopted these kinds of policies, you are entitled to rely on them.
Statements by Your Employer
Has your employer made any statements, either during the hiring process or after, indicating that you will be fired only for good cause? For example, an employer might say, “You’ll always have a home here as long as you do a good job,” or “We never fire an employee who’s performing well.” In this situation, especially if the comments have been made repeatedly and/or were a big reason you took the job, your employer may not be able to fire you at will.
On the other hand, if you are told during the hiring process or afterwards that you will be an at-will employee, your employer will certainly rely on that statement as proof that it reserved the right to fire you for any reason, if you are terminated and take legal action against your employer.
Your Rights as an At-Will Employee
Even if you are an at-will employee, you still cannot be fired for reasons that are illegal under state and federal law. In these situations, the government has decided to make an exception to the general rule of at-will employment.
For example, if your employer is subject to federal and state laws prohibiting job discrimination (as all but the smallest employers are), you cannot be fired because of certain characteristics, such as your race, religion, or gender. Similarly, you cannot be fired because you have complained about illegal activity, about discrimination or harassment, or about health and safety violations in the workplace . And you cannot be fired for exercising a variety of legal rights, including the right to take family and medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.
To protect their right to fire at will, many employers ask job applicants and new employees to sign a written statement agreeing that they are (or will be) employed at will. Such a statement might appear in an employment application, an employment contract or offer letter that the employer asks you to sign and return, an acknowledgment form for an employee handbook, or elsewhere.
When You Should Sign at At-Will Agreement
Theoretically, you don’t have to sign an at-will agreement — but most courts have held that your employer can fire (or refuse to hire) you for failing to do so. For this reason, most applicants and employees simply grit their teeth and sign on the dotted line.
Even though you may not have much choice about signing an at-will agreement, that doesn’t mean your employer will rely on it to fire you without a good reason. Savvy employers know that they have nothing to gain by firing employees arbitrarily. Instead, employers are often motivated to work through issues with you before resorting to such drastic measures.
When You Should Think Twice Before Signing an Agreement
Be wary of signing an at-will agreement if you relied on your employer’s promises of continued employment when you decided to accept the job. For example, let’s say that your employer promised, during the hiring process, that it would give you at least one year to learn your new job and that you would not be fired during that time. If that promise influenced your decision to take the job, you should not sign an at-will agreement contradicting the promise. Virtually every court will treat a signed at-will agreement as the final word on the subject, no matter what your employer said to you earlier.
If your employer wants you to sign an at-will agreement that seems to undercut its promises, ask about the discrepancy. If the employer stands by its earlier statements, ask that they be put in writing. If your employer refuses to honor its statements or changes its tune, it might be time to talk to a lawyer — particularly if you quit another job on the basis of those broken promises.
©2010 Nolo. Reprinted with permission from the publisher, Nolo, Copyright 2009, http://www.nolo.com
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