What Is At Will Employment?
You’ve probably noticed that job security isn’t a big thing in our society. Most people who work in America are what’s called “at-will employees.”
In a nutshell, at-will employment means that either the employer or the employee can terminate the arrangement at any time for almost any reason.
If you’re an employee, your employer can fire you whenever they want, for any reason they want. If you’re an employer, your workers can quit whenever they want and go get a job somewhere else.
That’s how it is for most workers in this country — more than two-thirds of them, according to various estimates.
So if you’re looking for work on a popular job board like ZipRecruiter or one of its competitors — or if you’re a company posting an open position there — it’s important to know exactly what at-will employment means for you.
How to Know If You’re an At-Will Employee
Don’t worry — most employers will spell this out for you. You can typically find this clearly stated in your employee handbook, and/or in various pieces of paperwork that you’ll sign upon accepting the job.
Generally speaking, unless you belong to a union, or you’re a government employee, or you work under a contract specifying how long you’ll be employed, then it’s a good bet that you’re an at-will employee.
Exceptions to At-Will Employment
There are exceptions, though. Not every worker is an at-will employee. Also, there are certain circumstances in which a company can’t fire an at-will employee.
Let’s go through those exceptions one by one.
Getting Fired for an Illegal Reason
It’s a little too simple to say you can be fired for any reason at all. Even if you’re an at-will employee, you can’t be fired for an illegal reason.
Under U.S. employment law, an employer can’t fire at-will employees because of their age, gender, race, religion, nationality, disability, military status, or in many states, because of their sexual orientation. State and federal law forbid this kind of thing.
If an employer wants to fire someone but is worried they’ll get sued for discrimination, the employer will often take pains to document that employee’s failure to perform their duties over a period of time. That way, the firing will be more likely to stand up in court.
Getting Fired for Refusing to Break the Law
At-will employees also can’t be fired for refusing to do something illegal that their employer wants them to do.
For that matter, you also can’t be fired for complaining about illegal actions by your employer, or for complaining about discrimination, harassment or health and safety violations.
If that ever happens to you, you should consult with a lawyer — preferably an attorney who’s familiar with employment law and at-will employment doctrine.
If you’re a member of a union and you work under a collective bargaining agreement, you’re not an at-will employee. You have more rights, as spelled out in your union’s agreement with your employer.
This not only includes workers who are in a union, but also workers who aren’t in a union but work in a workplace where employees are protected by union contracts.
If you’re a public sector employee, you’re not an at-will employee because you have certain civil service protections.
Also, many law enforcement officers and firefighters are members of unions and are protected by collective bargaining agreements.
If you work under an employment contract that specifies that you’ll be employed for a certain period of time, you’re not an at-will employee.
That doesn’t mean you can’t be fired. Your employment contract most likely includes the reasons for which you can be fired. But if you’re fired for a reason that’s not spelled out in your employment contract, you can sue your employer for breach of contract.
Implied Contract Exception
This is trickier.
Your employer isn’t allowed to fire you if there’s an “implied contract” between you and your employer, even if there’s no actual contract.
An implied contract might mean your employer’s policies or your employee handbook indicates that workers can’t be fired except for good cause, or they outline a specific process for firing.
It can be awfully difficult to prove this in court, though.
Most states, but not all, have an implied contract exemption.
Good Faith and Fair Dealing
Here’s a mouthful: “An implied covenant of good faith and fair dealing.”
Makes your eyes cross, doesn’t it? What does it mean? It means employers can’t fire someone in bad faith or out of malice, even if they’re at will employees.
The implied covenant of good faith and fair dealing is a concept that courts use to require that every party in a contract or agreement must implement the agreement as intended.
In wrongful dismissal cases based on this concept, a fired employee will argue that their employer had indicated they had job security — for example, by repeatedly giving the employee good performance reviews.
Most workers in the United States are at-will employees. It’s simply a fact of life.
It works both ways, too. You can leave a job whenever you want — although it’s customary to give two weeks notice, and doing so will help protect your professional reputation.
If you’re ready to leave your job, start browsing through job listings on popular job boards like ZipRecruiter.
In the meantime, keep in mind that your current employer can always fire you if they want to. It’s best to give them reasons to keep you around.
Mike Brassfield ([email protected]) is a senior writer at The Penny Hoarder.