‘Employment at will’ implies that an employee can leave a job whenever they want for any reason and employers are at the liberty of terminating an employee for any reason without any notice or cause. The main purpose of at will employment is to prevent wrongful termination and to reduce the occurrence of employment lawsuits between employees and employers.

A flexible approach

At will employment gives enough flexibility and freedom to both the employers and employees who wish to work together without having to go through the formalities of a long-term contract or any sort of commitment from either party. Hence, if an employee gets a better opportunity at any other place, they are free to leave at the time of their choosing. Similarly, employers have the freedom to discontinue the services of any employee, without giving any prior notice. Employers can also implement changes in wages and other benefits at their will as per this concept. At will employment can come to the rescue of the employers if they are facing a wrongful termination lawsuit. If an employer has to encounter such a situation, ideally they should possess substantial documentation that supports their decision, such as performance reviews of employees.

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Worker Rights

Even though employment at will provides a smaller number of worker protection measures than options such as employment under a union collective bargaining agreement, the employees, however, do have rights after they have been terminated. These include statutory rights under federal and state laws like unemployment insurance and anti-discrimination laws. In addition, federal and state governments have enacted laws that protect at-will employees from wrongful termination. Such acts of wrongful termination can include being fired due to race, religion, citizenship, retaliation for performing a legally protected action, disability, age, gender, whistleblowing, physical health, sexual orientation and other grounds as specified by labor laws. Also, company policy may provide severance pay for employees who have been terminated under specific conditions.

Exceptions to at will employment

1. Public Policy exception

As per the public policy exception to at will employment, there are a number of government laws, rules, and policies that protect the employees. A prime example of this is the anti-discrimination law. Such type of laws and policies may nullify the employment at will from being used as a pretext in a case involving wrongful termination. Some examples where public policy exclusions apply to at will employment are as follows:

  • You cannot fire an employee just because you find out she is pregnant.
  • An employee cannot be fired for working overtime.
  • An elderly worker cannot be fired just because he has revealed that they may retire next year.
  • A worker cannot be fired just because of filing a worker’s compensation claim.
  • You cannot fire an employee because they refuse to do something illegal.

All but seven states have expanded on the public policy exemptions. Montana has even negated the doctrine of at will employment, except during the probation period of an employee by enacting the Montana Wrongful Discharge From Employment Act of 1987 (WDEA).

2. Good faith and fair dealing

Another exception under which employment at will can be nullified is the implied covenant of good faith and fair dealing. Under this exception, employers are prohibited to fire an employee in order to avoid their duties like paying for healthcare, retirement or commission-based work.

3. Written or implied employment contracts

The exception being offered to employees from at will employment covers both written and implied contracts. In a written contract, some employers specify the duties, responsibilities and work structure that employees have to adhere to. Certain type of language used in such contracts can nullify the at will employment. For example, if specific compensation amount or payment dates are specified, it may be interpreted as ‘guarantees’ by a court of law if the employee is terminated during the contract period.
Even if a written contract is absent, however, if the employer through a work practice, precedent or even through a conversation leads the employee to believe that they would not be terminated, will be promoted or will be given some other employee benefits and this may lead the employer not being able to defend their plea that the employee was employed at will.

4. Trade unions and collective bargaining units

If the employees are the part of a trade union, such type of trade union agreements have their specific language clarifying under what conditions can an employee be terminated, the requirement of advance notice and compensation to be received on termination.

Employees should remain prepared

It may not be necessary that working under at will employment implies that employees will be fired suddenly without any reason and notice, but still, employees should be prepared for the worst. As an employee, you should be prepared with your latest resume, references, and other things so that you can start looking for a job immediately if that kind of situation arises. On the other hand, employers need to build a brand just like any business and they prefer to avoid a tag of being impulsive, cruel or inconsiderate. At will employment needs to be properly handled by both employers and employees in a responsible manner so that they can enjoy the benefits such type of arrangement brings in the form of flexibility.

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