09/27/2011 11:43:00 AM EST
Employed "At Will": What Does That Mean?
Employment At Will: The Most Commonly
Misunderstood Principle in the Workplace
Most Americans have a general understanding of the "employment at
will" doctrine. They understand that it means that they are not guaranteed
employment for any specific period of time. In general, and at least
intellectually, they understand that they can be fired at any time, and for any
However, it is my experience that folks do not know what that
overriding principle, that one can be fired at any time and for any reason,
truly means and how it plays out in the workplace.
Unions Were Created to Combat the Employment At Will Rule
In the United States, it was decided long ago by the courts that employment
disputes would not be a matter for litigation in the courts. Thus, until unions
came into vogue in the 1940s, employees in general had no protection against
being terminated for any reason whatsoever. Indeed, employees had no right to
any terms and conditions of employment. When unions came about, the process of
negotiating collectively on behalf of a group of employees insured, at least
for unionized companies, that employees could not be terminated unless there was
a good reason. Thus, if you are member of a union, you generally cannot be
terminated unless there is "good cause" for the termination, and unless the
company first goes through a progressive set of disciplinary actions.
Not true for the rest of us.
The rest of America, the non-unionized portion of America, remained without any
protection (unless they fell into the rare category of employees who have
contract for a specified period of time, which in many cases is limited to
sports figures and top-level executives).
Gold Watches Are a Thing of the Past
For many years, there was an unwritten contract between American companies and
their employees. This contract said that if you came to work every day, did a
good job, were productive and respectful and were loyal to the company, then
the company in turn would be loyal to you and would not terminate you unless
there was good reason to do so. Generations of American workers came to rely
upon this unwritten principle, and many a long-time employee received a "gold
watch" for his years of service.
Title VII Enacted to Protect Women and Minorities
As African-Americans and women began to enter the work force in greater numbers
in the 1960s, certain changes became apparent. These two groups were commonly
excluded from employment opportunities, including hiring and promotion
practices. Although this practice of exclusion pre-existed 1960s, and
particularly where Italian-Americans and Irish-Americans were concerned, it had
in many respects been remedied by the union movement. However, the unionization
of women and African-Americans workers was a rare phenomenon, and in many
respects was limited to the education profession.
In 1964, the Civil Rights statute was enacted. This is commonly known as
Title VII. It initially prohibited discrimination in the workplace based upon
sex, race, national origin or religion. For many years, it's most common
application was to combat sexual harassment.
Amendments to Title VII to Protect Other Categories of Workers
Since then, Title VII has been expanded and supplemented by laws such as the Pregnancy
Discrimination Act, the Americans
With Disabilities Act and the Age
Discrimination in Employment Act.
Family Leave Act Enacted to Protect Workers Who Need to Care for Loved
Another law, the Family
and Medical Leave Act ("FMLA"), was enacted in 1993 and
prohibits retaliation against employees who need to take leave from work due to
their own serious health condition, or in order to care for a family member
with a serious health condition.
Overtime Laws Protect Employees Who Demand Fair Pay
From time to time, other federal laws have been enacted in an effort to
eliminate retaliation against employees who have asserted certain
employment-related rights. For example, the Fair
Labor Standards Act ("FLSA"), which guarantees employees a
minimum wage and overtime, prohibits termination of employees who make
complaints that they are not being compensated fairly under that law.
Whistleblower Laws Generally for Government Workers and Employees of
Publicly Traded Companies
In most states, only employees of the governments are protected against being
terminated because they made a complaint that their governmental employer was
engaging in unlawful activities.
For employees of publicly-traded companies, Sarbanes-Oxley
provides some protection against retaliatory discharge provided certain
stringent requirements are met.
Common Law Provides Protection to Employees Filing Workers' Compensation
Meanwhile, over the past 40 years, many states have developed a body of law
created by the courts that prohibits unlawful employment action based on a few,
very limited, circumstances, the most common of which is the prohibition of
retaliation against someone who has filed a workers' compensation claim.
This body of law has been deemed the law of "wrongful
While it has a very limited applicability in most states, it is the
phrase that employees most commonly utilized when they believed they had been
terminated for unfair reasons. However, it is rare for an employee to
actually have a wrongful termination claim, at least in Pennsylvania
and most states. That is so because, in the vast majority of cases,
employees are terminated for reasons which, despite their unfair nature, are
Present Day: The Scope of Protections Against Unfair Termination for
And so, as it stands today, employees who are not in a union (or who don't have
long-term contracts) may be treated poorly at work, and may be terminated for
any reason, unless:
1) the termination
is because of their sex, race, religion, national origin, age, pregnancy or
2) The termination is a retaliatory response to a complaint by an employee that
he/she is being sexually harassed, or treated differently at work because of
his/her sex, race, religion, etc.;
3) The termination is a retaliatory response to an employee who has asserted
their rights to leave under FMLA, or is made a claim for overtime under FLSA;
4) The termination is a retaliatory response to the employee's filing of a
workers' compensation claim.
While there are some other exceptions in any given state, and while
governmental employees are protected under whistleblower laws, these really are
the core laws and principles that govern the average American worker.
Despite These Laws, There is No Rule That One Must Be Treated Fairly or
Decently at Work
In many respects, the laws discussed above constitute the exception, not the
rule, at least where employee complaints relating to termination are concerned.
That is to say, for every telephone call I get from someone who as a legitimate
claim for discrimination or retaliation under one of the principles discussed
above, I get 20 calls from employees who feel that their termination was unfair
for reasons having nothing to do with their age, sex, assertion of rights under
Many courts are fond of saying that there is no "civility code" governing the
workplace. I supplement that by telling callers that there are no civil police
in the United States. If a person is being subjected to mistreatment in the
workplace, and assuming the mistreatment is not because all illegal motivations
such as described above, then their only choice is to work it out or seek other
For employees who are "merely" fired for unfair or incorrect reasons,
the principle of "wrongful termination" does not apply. Rather,
the only source of relief for such employees is through the unemployment
Read more articles
about employment law issues at Philadelphia Area Employment Lawyer, a blog
by John A. Gallagher.
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