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At-Will Employee

The contractual relationship between an employer and employee, in most jobs within the United States, is considered to be a two-way street.  That is, either party is free to leave that particular relationship at any time.  There are no legal requirements as to a “notice period” either, which means that termination, by either party, can be done without any prior notice.

As to the employer, they have the right to sever that employee, with or without notice, and with or without cause (except for a reason that is illegal under federal or state law), without incurring liability.  Those various reasons are discussed in detail below.  Likewise, an employee is free to pick up and leave their job at any time, for any or no reason, without suffering any adverse legal consequences by their employer.

Are you an at-will employee?

If your interest is piqued because you are an at-will employee, do you fully understand the ramifications of this common employment contractual relationship?

The very idea that you, the happy employee, could walk into work in the morning and by lunchtime be heading to the unemployment office is very unnerving, isn’t it?  It also causes considerable heartburn to the employer who, depending on the employee’s job description, may invest much time; effort and expense into training or grooming that person for a particular position, only to have them depart with those skills and land at a competitor for more money and benefits.  Unless an employee non-compete agreement is in place, the employer is out of luck.

At-will employer/employee relationship

Yes, it is a little daunting to think that your employer could terminate you without any reason.  You certainly are not alone, although when handed your walking papers, you might feel like you’re suddenly a member of a group you’d rather not belong to.   In the United States, in nearly every state (with Montana being the exception), an employee is considered to be an at-will employee; unless an employment contract is in place.   Thus, the majority of U.S. employees work sans an employment contract, which means you may be fired without warning.  It is not always a case of termination for just because, thus, you do, however, have some rights as an at-will employee.

The examples listed below are exclusions which prohibit you from being fired:

Working under an employment contract

If you work under an employment contract, you had better read the fine print, because that document will spell out the terms and conditions which will dictate the criteria for which your employer may fire you.  But, when the shoe is on the other foot, you should be mindful that when your employer chooses to terminate your employment prior to the expiration of your employment contract and you are not compensated for breach of that contract, you may sue the company to enforce the terms of the contract.

The at-will employee

For everyone who has not entered into an employment contract, you are considered an at-will employee.  The reasons cited above as “illegal” under state or federal law include that your employer may not fire you due to your race, or gender, or because you engaged in whistle blowing.  This is because state and federal laws protect people from discrimination and from retaliation for whistle blowing.

Discrimination laws protect your job

discrimination or harassment
Employees can gain some comfort in knowing that they do have the assurance of their protection from being fired due to discrimination because of various federal law protections, like Title VII of the Civil Rights Act, which makes it illegal for your employer to terminate your employment because of your ethnicity, skin color, religion or gender.  Other federal laws forbid termination of employment based on a pregnancy, or, if you’re 40 years of age or older.  The Americans with Disabilities Act makes it illegal to discriminate against someone because of a disability.

Additionally, whether or not your employer actually did discriminate against you, they may not fire you in retaliation for making such a discrimination complaint through your human resources department, your supervisor, a lawyer or a governmental agency.  This would include an employee who:

  • files a workers’ compensation claim;
  • files a discrimination or harassment suit;
  • refuses to perform illegal activities;
  • requests reasonable disability accommodation(s);
  • takes a legally protected leave of absence from work (FMLA leave); and/or
  • Discusses (or complains about) the working environment, wage or overtime practices.

Also included in this list of retaliation, based on discrimination, would be an employee who is a whistleblower.

The Whistleblower Protection Act

The concept of being a whistleblower is literally “blowing the whistle” on someone or something within an organization (an internal whistleblower) or outside an organization (external whistleblower) like the media or law enforcement.  A whistleblower is defined as a person that exposes any type of information or activity that is deemed illegal, unethical, unsafe or not correct within a private or public organization.  If you see a wrong, and report it, you cannot be punished or fired for enlightening others on this “bad deed” – this is the law.

Termination on a whim

Employers, whether they are owners of companies, or just the “person in charge” at same, likely didn’t achieve such a coveted position without being savvy and in tune with their workforce.  Employers know that wrongful terminations cost them money, and, this is why they are smart to have a sit-down with their labor and employment attorney before terminating an employee.  But, in an at-will contractual relationship, some employees will still get their walking papers handed to them for no reason at all, despite having the legal protections of the state and federal laws as recited above.

If this happens, you, too, need to be savvy and take immediate legal action to ensure you are compensated for your wrongful termination.  You should seek a consultation with an employment law attorney who will assist you in determining what compensation is due to you depending on your own special set of circumstances.  To avoid litigation, your attorney, and your former employer (or the company’s attorneys), may confer to work out an agreement which is beneficial to you.  You might be compensated in a variety of ways, including:

  • reinstatement at your former job, or at another position within the company;
  • payment for income (salary) lost while you were unemployed;
  • Compensation for any physical or emotional issues suffered due to the trauma of losing your job and source of income, and reimbursement of any medical, as well as legal expenses, pertaining to the loss of job and income.

If no agreement is made, litigation may be the next course of action, in which your attorney will seek recompense for you, as well as punitive damages or a court-imposed monetary punishment against your former employer for his/her illegal behavior that resulted in your termination.

If you have lost your job and feel you have been wrongly terminated, your situation is unique, so please consult with an employment law attorney for this issue or any other employment law questions you might have.

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