At-Will Employment and Worker Protections

By: Randy Dotinga Let's say you get fired one day. If you were the victim of unfair management or got sacked without explanation, you can sue and win, right?

Wrong. While American workers may not realize it, most can be terminated for good reasons, bad reasons, or no reasons at all, as long as the grounds for dismissal aren't illegal.

Laws forbidding discrimination offer some protection, as do a variety of state regulations. But if you don't have a union contract, the general rule is this: your job can disappear at any time and there's probably not much you can do about it. "Most people have a sense that the law requires the employer to behave rationally and in good faith. Clearly the law does not," said George Schatzki, a professor of law at Arizona State University.

Surprised? Join the club. "It's continually amazing to me to learn from employees and employers how much misinformation they have gleaned over the years," said Arlene Vernon, a human resources consultant in Eden Prairie, Minn.

At issue is "at-will employment," which generally applies to all employees in the U.S. except those who work under contract (like union members, some managers, and others) and those in Montana. (More on Big Sky Country in a moment.)

"At-will" means that you have your job at the "will" of yourself and your employer. "The essence of at-will employment is that either the employee or the employer can terminate the agreement at any time," said Ann Kiernan, an attorney with Fair Measures, a New Jersey-based consulting firm for managers.

Federal law has carved out several exceptions, however. It's illegal to fire someone based on their ethnicity, religion, age, or gender, among other factors. States can add to the list. In Minnesota, for example, it's illegal to sack someone because they're gay or because they're on welfare, Vernon said. States also may forbid employers from firing workers who engage in political activity (like registering as a Republican), follow mandatory "public policy" (like going to jury duty), or engage in whistle-blowing.

If you think you fall into a few of the protected groups, you're right. "All of us are protected by the statutes. We all have ethnic qualities to us, we're all one sex or another, are all of a certain age, and may ... claim we're disabled," Schatzki said.

The trick is proving that one of those factors had something to do with your firing. To keep discrimination charges at bay, smart employers document problems they have with workers from the beginning.

"Increasingly, employers don't go the humane route," Schatzki said. "They tell the employees from the outset that 'You're [screwing] up, you're messing up here.' If it gets worse, you're in a position to discharge the employee and not be susceptible to the claim [for example] that you discharged her because she's a woman."

Individual states may provide some extra protections beyond discrimination law. Fifteen states have some variation on a legal principle called "good faith and fair dealing." They essentially require employers to treat their employees fairly, although interpretations of the laws vary. According to Kiernan, these states have good-faith laws: Alabama, Arkansas, Arizona, Alaska, California, Colorado, Connecticut, Delaware, Idaho, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, and Utah.

Montana is the only state without "at-will employment." No employer in the state -- which is home to fewer people than Detroit -- can fire a worker without proving good cause, according to Kiernan.

There's one final important protection in some states: the employee handbook. In California and elsewhere, the handbook acts as a contract. If it says employees must get a verbal warning, a written warning, and a final warning, that's what has to happen under the law, Kiernan said.

The best protection against being fired, however, has nothing to do with rules in the labor code. Even though their employees might disagree, bosses are human. Firing someone is "awful," Kiernan said. "It's emotionally draining for the manager as well as the employee. Managers don't like to do it. Also, it's a lot easier to keep people and rehabilitate them than go out and recruit a new person."

Indeed, thousands of newspaper employees can point to co-workers who deserve the heave-ho: the deadwood, the chronic computer solitaire players, the flat-out incompetents. They keep their jobs not because of the law, but because of a much more powerful force -- managerial inertia.