You Must Understand the "At Will" Principle to Understand Employment Laws
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 reason.
However, it is our experience that folks do not know what that overriding principle - that one can be fired at any time and for any reason, unless the reason is illegal - truly means and how it plays out in the workplace.
In order to truly understand this principle, it is helpful to examine workers who are not at-will employees. We will look at the three most common-type employees, from most populous to least.
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 specific terms and conditions of employment (i.e. vacation and sick days, work conditions, hours of work, etc.).
With unions came Collective Bargaining Agreements, which are contracts between companies and their employees that, among other things, prohibit termination in the absence of progressive discipline and the exhaustion of a grievance and/or hearing process. Perhaps the most critical of the rights union employees have are those established in the 1975 Weingarten case, a summary of which you can find Here.
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.
Why have state and federal governments decided to protect their employees from the at-will doctrine? The government will tell you that it is a reward for the allegedly low-pay and tedious grind undertaken by government workers. Tell that to your local waitress or retail clerk!
We choose to believe the government has such protection in place because it understands that the at-will principle is wrong. After all, the United States is the only country that follows this rule.
In any event, government employees often enjoy stable and predictable careers and many are more likely to die on the job than be fired!
Employees With Employment Contracts Are Not At-Will Employees
If you are a professional athlete or manager, or a college coach, you are not employed at-will. Under your contract, you likely can be fired only "for cause."
If you are an executive or senior officer of a company, you may also have a contract that says that you can be fired only for cause. In such cases, you are not an employee at will.
So What, Exactly, Does it Mean to be an Employee At-Will?
In sum and substance, it means that you may be fired for any reason at all, without any due process or right to be heard and/or defend yourself.
It means you may be fired if your boss does not like you.
It means you can legally be fired in retaliation for complaining that your boss is mean-spirited, rude, unfair and intimidating (but not if you complained that you were being treated unfairly BECAUSE OF your age, sex, race, national origin, religious beliefs or disability).
Does the Fair Labor Standards Act Protect "At Will" Employees?
Can I Get My Job Back if I Win My Unemployment Hearing?
If you are wrongfully fired because someone lied about something you did (not do), or because the boss disliked you, or because of petty politics, or because you the company believes that you did something wrong and you did not, then your remedy is to win your right to unemployment compensation benefits.
That is why unemployment benefits exist; to provide some cushion for at-will employees who are fired through no fault of their own.
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| If you Work in a Union, You Can Only Be Fired for Cause as Set Forth in the Union Contract and Are NOT Employed "At Will" |
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 specific terms and conditions of employment (i.e. vacation and sick days, work conditions, hours of work, etc.).
With unions came Collective Bargaining Agreements, which are contracts between companies and their employees that, among other things, prohibit termination in the absence of progressive discipline and the exhaustion of a grievance and/or hearing process. Perhaps the most critical of the rights union employees have are those established in the 1975 Weingarten case, a summary of which you can find Here.
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.
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| I'll Go With the Guy With the Cheesy Tie |
Many Government Employees Are Not At-Will Employees
Many employees of federal and state governments cannot be fired without cause. For example, employees of the federal government are protected by the Civil Service Reform Act of 1978. Here is an excerpt from the Act summarizing its purpose:
Many employees of federal and state governments cannot be fired without cause. For example, employees of the federal government are protected by the Civil Service Reform Act of 1978. Here is an excerpt from the Act summarizing its purpose:
Civil Service Reform Act - =Title I: Merit System Principles= - Enumerates the principles of the merit system in the Federal work force. Prohibits the taking of personnel actions to discriminate against a Federal employee on the basis of race, color, religion, sex, or national origin, age, handicapping conditions, marital status, or political affiliation. Prohibits, generally, taking or influencing personnel actions for political or other nonmerit reasons and nepotism.
We will not attempt to further unpack the Act here; if you are a federal civil service employee and believe you have rights that are being violated or ignored, best to contact competent counsel at once.
Many states have similar protections for civil service employees. For example Section 807 of the Pennsylvania Civil Service Act of 1941 states:
Section 807. Removal--No regular employe in the classified service shall be removed except for just cause.
Section 951 of the Pennsylvania Act provides that any employee subject to adverse employment action may request and will be granted a hearing:
Section 951. Hearings--(a) Any regular employe in the classified service may, within twenty calendar days of receipt of notice from the appointing authority, appeal in writing to the commission. Any permanent separation, suspension for cause, furlough or demotion on the grounds that such action has been taken in his case in violation of the provisions of this act, upon receipt of such notice of appeal, the commission shall promptly schedule and hold a public hearing.
The key to bear in mind is that many government employees are entitled to due process before and/or after they are terminated, demoted, passed over for promotion, etc.
Considering these rights, as opposed to those of America's workforce (and likely to yours, dear reader0, really helps to put the "at will" rule in perspective. At will employees simply have no right to secure a hearing to protect their job.
Why have state and federal governments decided to protect their employees from the at-will doctrine? The government will tell you that it is a reward for the allegedly low-pay and tedious grind undertaken by government workers. Tell that to your local waitress or retail clerk!
We choose to believe the government has such protection in place because it understands that the at-will principle is wrong. After all, the United States is the only country that follows this rule.
In any event, government employees often enjoy stable and predictable careers and many are more likely to die on the job than be fired!
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| Rutgers Coach Rice: Throwing Balls at Players = "Good Cause" for Termination |
Employees With Employment Contracts Are Not At-Will Employees
If you are a professional athlete or manager, or a college coach, you are not employed at-will. Under your contract, you likely can be fired only "for cause."
Some folks believe they have contracts for term because their employment contract says "we will pay you $100,000 during your first year of employment, which will end on XX, 20XX." However, most such contracts also contain a "nothing in this contract should be read to alter your status as an employee at will," or words to those effect. Unless the agreement says "we guarantee you one year of employment unless you are fired for cause," you are most likely employed at will.
Other things to look at where employment offer letters or contracts are concerned are whether they mention severance. If no severance is mentioned, you are likely being hired as an at will employee.
NOTE: We help employees negotiate employment agreements to help protect them from the at will doctrine.
Even if Not Part of a Union, Most Public School Employees Have a Right
to Due Process Before Termination
Public School Teachers and Employees Are Generally Not "At Will" Employees
Wikipedia sums up a public sector employee's rights, frequently referred to as Loudermill rights, in the following passage:
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), was a United States Supreme Court case in which the Court held that:
- certain public-sector employees can have a property interest in their employment, per Constitutional Due Process. See Board of Regents v. Roth
- this property right entails a right to "some kind of hearing" before being terminated—a right to oral or written notice of charges against them, an explanation of the employer's evidence, and an opportunity to present their sides of the story.
- thus, the pretermination hearing should be an initial check against mistaken decisions—not a full evidentiary hearing, but essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.
- in this case, because the respondents alleged that they had no chance to respond, the District Court erred in dismissing for failure to state a claim.
As a result of the case, public sector employers are required to provide a Loudermill hearing and/or a Loudermill letter before terminating an employee.
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| Most Employees Do Not Have Contracts or Due Process Rights and are Hence Employed "At Will" |
In sum and substance, it means that you may be fired for any reason at all, without any due process or right to be heard and/or defend yourself.
It means you may be fired if your boss does not like you.
It means you may be fired if your boss wants to promote someone he/she likes better than you into your position, even if you did a better job than your replacement.
It means you may be fired if the company incorrectly believes you did something wrong.
It means you may be fired if a co-worker complains or reports about something you allegedly, but did not actually, do or say, because that co-worker does not like you and was trying to get you in trouble.
It means you may be fired out of spite, or over a petty dispute.
It means you may be fired if the company incorrectly believes you did something wrong.
It means you may be fired if a co-worker complains or reports about something you allegedly, but did not actually, do or say, because that co-worker does not like you and was trying to get you in trouble.
It means you may be fired out of spite, or over a petty dispute.
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| No Protection from Evil Boss Under Employment Laws |
It means you can legally be fired in retaliation for complaining that your boss is mean-spirited, rude, unfair and intimidating (but not if you complained that you were being treated unfairly BECAUSE OF your age, sex, race, national origin, religious beliefs or disability).
Do Discrimination Laws Protect "At Will" Employees?
Every rule has its exceptions, and Title VII and its related laws are one big exception, indeed. Many of the Links below provide additional information on employment laws in the USA.
Even "At Will" Employees Are Protected by FMLA
Does the Family and Medical Leave Act Protect "At Will" Employees?
Absolutely. Check out some Links below.
The FLSA Protects Employees Who Request Overtime Pay
Does the Fair Labor Standards Act Protect "At Will" Employees?
Yes, it does. If you make a complaint or claim relating to overtime that you believe you are entitled to but not paid and are fired in response thereto, you may have a claim under FLSA. Check out the Link below.
The Common Law is in Here
Are There Any "Common Law" Exceptions to the "Employment at Will" Doctrine? Yes, there Are Judicial Decisions Prohibiting "Wrongful Termination" in Limited Settings
Common law rules are those principles established not by statute, but by decisions from courts. Virtually every state has over the past 75 years established limited exceptions to the employment at will principle. In Pennsylvania, for example, those exceptions are commonly referred to as "wrongful termination exceptions."
One of the most recent explications of that principle is found in a July 2020 case, Bahnatka v. Victory Brewing Company. Here is an excerpt:
With respect to wrongful termination, this Court has previously explained:
"In Pennsylvania, absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason." Weaver v. Harpster, ... 975 A.2d 555, 562 ([Pa.] 2009). "[A]s a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship." Id. ...An employee may bring a cause of action for a termination of that relationship only in the most limited circumstances, where the termination implicates a clear mandate of public policy. In our judicial system, the power of the courts to declare pronouncements of public policy is sharply restricted. Rather, it is for the legislature to formulate the public policies of the Commonwealth. The right of a court to declare what is or is not in accord with public policy exists only when a given policy is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it. Only in the clearest of cases may a court make public policy the basis of its decision. To determine the public policy of the Commonwealth, we examine the precedent within Pennsylvania, looking to our own Constitution, court decisions, and statutes promulgated by our legislature.Id. at 563 (quotation and citations omitted).Applying this standard, Pennsylvania courts have found actionable exceptions where the employee was terminated for filing a claim for worker's compensation benefits, Shick v. Shirey, ... 716 A.2d 1231 ([Pa.] 1998); for filing a claim for unemployment benefits, Highhouse v. Avery Transportation, ... 660 A.2d 1374 ([Pa. Super.] 1995); for failing to submit to a polygraph test where a statute prohibited employers from so requiring, Kroen v. Bedway Security Agency, Inc., ... 633 A.2d 628 ([Pa. Super.] 1993); for complying with a statutory duty to report violations to the Nuclear Regulatory Commission, Field v. Philadelphia Electric Co., ... 565 A.2d 1170 ([Pa. Super.] 1989); and for serving jury duty, Reuther v. Fowler & Williams, Inc., ... 386 A.2d 119 ([Pa. Super.] 1978).Courts have found no public policy exception where the employee was terminated as a result of sexual discrimination by an employer not covered by the Pennsylvania Human Relations Act, Weaver, supra; for complaining about violations of the Occupational Safety and Health Act, McLaughlin v. Gastrointestinal Specialists, Inc., ... 750 A.2d 283 ([Pa.] 2000); for expressing concerns that the employer's product was unsafe, Geary v. U.S. Steel Corporation, ... 319 A.2d 174 ([Pa.] 1974); for disengaging an illegal surveillance system, Hineline v. Stroudsburg Electric Supply Co., ... 559 A.2d 566 ([Pa. Super.] 1989), appeal denied... 574 A.2d 70 ([Pa.] 1989); or for complaining about the waste of taxpayer money, Rossi v. Pennsylvania State University, ... 489 A.2d 828 ([Pa. Super.] 1985).In sum, "an employer (1) cannot require an employee to commit a crime, (2) cannot prevent an employee from complying with a statutorily imposed duty, and (3) cannot discharge an employee when [specifically] prohibited from doing so by statute." Donahue v. Federal Exp. Corp., 753 A.2d 238, 244 (Pa. Super. 2000) (quoting Spierling v. First Am. Home Health Servs., Inc., 737 A.2d 1250, 1252 (Pa. Super. 1999)). Outside of those categories of our legislature's expression of public policy, a court may find a public policy exception that will sustain a wrongful termination action only if the public policy "is so obviously for or against public health, safety, morals, or welfare that there is a virtual unanimity of opinion in regard to it." Weaver, 975 A.2d at 563.Mikhail v. Pa. Org. for Women in Early Recovery, 63 A.3d 313, 316-17 (Pa. Super. 2013).
HERE ARE SOME OTHER ARTICLES
YOU MAY FIND WORTHWHILE:
What is an ILLEGAL Hostile Work
Environment? Workplace Bullying Alone is Not Illegal in Pennsylvania
What is an ILLEGAL Hostile Work
Environment? Workplace Bullying Alone is Not Illegal in Pennsylvania
Employee Complaints and Retaliation - What is Legal and
What is Illegal
FILING A CHARGE OF DISCRIMINATION IN PENNSYLVANIA - A FEW
TIPS FROM CONTINGENT FEE LAWYERS
United States Employment and Discrimination Laws - An Overview by Pennsylvania Employment Lawyer
What Are My Employer's Obligations When I Request FMLA Leave? Pennsylvania FMLA Attorneys
Can I Get My Job Back if I Win My Unemployment Hearing?
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| Often Sole Remedy for Workers Who Are Wrongfully Terminated |
If you are wrongfully fired because someone lied about something you did (not do), or because the boss disliked you, or because of petty politics, or because you the company believes that you did something wrong and you did not, then your remedy is to win your right to unemployment compensation benefits.
That is why unemployment benefits exist; to provide some cushion for at-will employees who are fired through no fault of their own.
Click to read: Pennsylvania Unemployment Lawyers - Willful Misconduct Referee Hearings
A Vestige of the Past Even for Faithful Employees
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, respectful and 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 (rarely for "her" years of service.....).
Those days are long gone. Nowadays, the only protection employees have are found in union contracts, the rare employment contract for a specified term, civil service laws, state and federal anti-discrimination statutes and a tapestry of wrongful termination laws found in most states.
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, respectful and 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 (rarely for "her" years of service.....).
Those days are long gone. Nowadays, the only protection employees have are found in union contracts, the rare employment contract for a specified term, civil service laws, state and federal anti-discrimination statutes and a tapestry of wrongful termination laws found in most states.
Consider Yourself Lucky if You have a Contract or Company Policy Providing for Severance
Does it Matter if I am an Employee At Will When it Comes to Severance?
Click Here to read our comprehensive Post on Severance, and how negotiating same may be largely dependent upon whether you are an employee at will, versus an employee with a right to severance pursuant to a contract.
Click Here to read our comprehensive Post on Severance, and how negotiating same may be largely dependent upon whether you are an employee at will, versus an employee with a right to severance pursuant to a contract.
If your Boss is a Bully, You Have Limited if Any Recourse (Except to Seek a new Job!)
Workplace Bullying is Not Illegal - There is no Law Requiring Employees to be Treated Fairly or Decently at Work
Many courts are fond of saying that there is no “civility code” governing the workplace. We 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, there are no "civil police" who will come to stop it. There is no 911 to call, and HR is more beholden to your boss than they are to you!
So, unless the mistreatment is because of illegal motivations (i.e. discrimination based upon sex, race, age, etc.), the best one can do when being subject to unfair treatment at work is to try and work things out. This is the very essence of the employment at-will principle.
Many courts are fond of saying that there is no “civility code” governing the workplace. We 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, there are no "civil police" who will come to stop it. There is no 911 to call, and HR is more beholden to your boss than they are to you!
So, unless the mistreatment is because of illegal motivations (i.e. discrimination based upon sex, race, age, etc.), the best one can do when being subject to unfair treatment at work is to try and work things out. This is the very essence of the employment at-will principle.
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