Still often misunderstood even today, the term “at will employment” is actually a foundation for much of the employment across the nation.
According to attorney Merritt Green, the founder, managing partner, and chair of employment practice at General Counsel PC — a legal firm in McLean, Virginia — at will employment means an employee can be fired or quit their job for any reason at any time. This definition applies to both the employee and the employer.
Green explained that if an employee comes into work on a particular morning wearing a red shirt and the employer dislikes red clothing, he has the right under “at will employment” to dismiss the employee for even such a trivial and ridiculous reason as the color of a person’s clothing.
However, Green does note three reasons that would prevent an employer from conducting such a dismissal:
- implied or written contracts
- union membership
- local, federal and state laws
If an employee works under a contract, he or she can only lose their job for a reason, or cause, he said. He added, an employment contract can also specify the time period for which an employee can work for a firm.
Secondly, belonging to a union with a collective bargaining agreement also modifies the ability of an employer from conducting an at-will separation. A union protects an employee’s rights and provides for formal grievance procedures.
Green said the third reason is local, state, and federal laws that prohibit employers from firing workers based upon their age, race, sex, creed, or religious affiliation. In addition — and often overlooked — is that an employer is prohibited by law from terminating an employee when the employer asks an employee to do something illegal in relation to their job and then fires them when the associate refuses to do it.
Green cautions employers to be careful not to inadvertently modify an at will employment relationship. Such modifications can be done through a change in an employee handbook that states an employee can only be fired for cause — defined as something an employee does that is in direct conflict with the employer’s interests. He suggests a company consult with a reliable employment attorney to review company handbooks and other documents.
Green’s further advice is for business owners to provide employees with proper documentation, such as a clear and comprehensive employee handbook and adequate disclaimers. He also recommends basing all employment decisions on objective criteria and have supporting documentation justifying a discharge decision.
He says, when in doubt, it’s always best to consult with a labor attorney.
Labor lawyer Zachary Zawarski, of Bethlehem, Pennsylvania, also noted an at-will dismissal can also be overruled by a public policy exception. For example, an employee cannot be fired for serving jury duty, he said.
Zawarski said the burden of proof initially falls on an employee to prove he or she has been discriminated against and subsequently fired. However, he explained if an employee’s discrimination allegations show merit, the burden shifts to the employer.
Then, it’s the owner who has to prove he didn’t let the employee go based upon sex, race, or religion, but because the owner has documented infractions that could apply to a broad base of employees such as lateness, poor attendance, or substandard performance.
Pink Slip Photo via Shutterstock
So without a contract, an employee can be dismissed with a trivial reason? What happened to human rights?
Why does an employer have a “human right” to employ anyone?
Please read. An employee DOES NOT employ. That’s an employer’s job. What I am pertaining to is that they have the right to be dismissed within reason and not just because of trivial ones. I don’t know if ‘human rights’ is the right term. Maybe I should have used plain ‘rights’ instead. What I am trying to say is, I do not agree with this “At Will Employment” system because it exploits the power of employers over employees when they should be working together. I can even say that it is a form of bullying. I guess it only becomes ‘okay’ when you’re under the protection of a contract or a union membership.
This is a common misconception from the younger generation – that they have a “right” to job. The only have rights that are given to them in the constitution or the Bill of Rights and there isn’t a right for every person to have a job.
Yes – an employer can choose to stop buying your services (your time/expertise/production) at any time. Just like you can stop your cable service and stop paying them.
It also states that you can stop selling your time to the employer at any time. So if you decide you don’t like the boss’s hairstyle – you can quit and sell your services to another employer.