At-Will Employment: 5 Things Every Employer Should Know

Most of us understand that ‘at-will employment’ generally means employment in which an employer can fire an employee at any time – or an employee can quit at any time – without fear of liability. But what else do you know about at-will? From employment lawyers on JD Supra, five key points:

1. At-will employment does not prevent former employees from filing wrongful termination claims:

“Employers can take steps to preserve the at-will employment relationship in their policies and procedures, and employment offer letters.

Written policies, including employee handbooks, and offer letters should clearly state that employment is at-will and nothing in the document is intended to establish an employment contract. If an employment contract is deemed to exist, it could nullify the benefit of at-will employment — the right to terminate without cause.

In letters offering employment, it is critical to avoid setting a fixed date for when employment will end because doing so will void the at-will employment relationship…”

(From At-Will Employment is Never as Simple as it First Sounds: Employers Must Treat Workers in a Consistent Manner by Lane Powell PC)

2. Even if you live in an “employment-at-will state,” you do not really live in an employment-at-will state

“…the employment-at-will rule does not apply to terminations that are conducted for unlawful reasons. And, as we all know, the list of ‘unlawful’ grounds for termination is ever-growing. A termination because of race, sex, national origin, religion, color, age, disability, or, now, genetic information, or retaliation for related protected activity, violates federal law and many state laws.

…So, now you may be thinking: Well, ok, but I’m not terminating this person for any of these reasons. I’m terminating him because I just can’t stand him. Doesn’t that fall under employment at will?

The answer is yes and no. Yes, because that is a facially lawful reason in an employment-at-will state. But also no, because an employee who is terminated for an arbitrary or unfair reason will have a much easier time claiming — and possibly persuading an agency, judge, or jury — that the stated reason is false and that the employer’s real reason was an illegal one.”

3. Even in an employment-at-will state, an employer should make sure that termination decisions are fair…

“…(which would usually include specifically warning a sub-standard employee about her deficiencies and giving her an opportunity to improve), well-documented, and conducted in a manner that is consistent with the employer’s policies and procedures.”

(Both #2 and #3 from BIG LIES: “The check’s in the mail,” and “I can fire you for a good, bad, or no reason” by Robin E. Shea at Constangy, Brooks & Smith LLP)

4. In most cases, at-will employment is still the default rule

“…over the last century (and the last few decades, in particular), the federal government, and the governments of most states, have adopted laws which chip away at the default rules of at-will employment, and the many situations in which an employer is legally prohibited from firing an employee.

It’s important to note that, even though there are a large number of exceptions, at-will employment is still the default rule. So, unless you can show that an exception clearly applies to your case, you will have little legal recourse. Here are some of those exceptions: employment contract, discrimination, jury duty, retaliation, illegal activity…

An employee cannot be fired for refusing to engage in an illegal activity. While insubordination is usually a perfectly valid reason to fire an employee, if the “insubordination” is actually an employee refusing to follow an instruction that requires him or her to do something illegal, the employer cannot take any adverse action against them.”

(From Wrongful Termination and At-Will Employment by

5. At-will employment differs state by state…

As evidenced by the following update on a court decision to do with at-will in Pennsylvania: “…the plaintiff claimed that the employer refused to rehire him based on his service in the National Guard. In addition to filing statutory claims under the Uniform Services Employment and Reemployment Rights Act (USERRA) and the Pennsylvania Military Affairs Act (PMAA), the plaintiff brought a common law wrongful discharge/failure to hire claim seeking the court to apply a public policy’ exception to the employment at will doctrine. In Pennsylvania, exceptions to the at will doctrine are rare. Under the ‘public policy’ exception, a plaintiff may have a viable wrongful discharge claim if he can show that his termination violated a clear mandate of public policy.”

(From Federal Court Creates New Exception to Pennsylvania At Will Employment Doctrine by McNees Wallace & Nurick LLC)

Take-away: know your state’s employment laws. Also:

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