Can an At-Will Employee Be Unlawfully Discharged?

by Employment Blawg on March 15, 2013

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Guest post based on US employment laws.

Although an employment relationship is presumed to be at-will in most states, allowing an employer to lawfully discharge an employee at any time, and without prior warning, there are numerous exceptions to this rule that protect employees against adverse employment actions. These exceptions are recognized by the courts, as well as in state and federal statutory law. More detailed information is provided at this link.

Modifying at-will employment by an express contract

An express, or written, contract between the employer and the individual employee may be used to modify the presumption of an at-will employment relationship. For example, the contract might provide a definite term of employment. Also, a contract might permit termination only for cause, such as employee misconduct or performance.

Modifying at-will employment by an implied contract

Additionally, an employee may have an expectation of a fixed employment term based on an implied contract with the employer. This might include an oral statement of continued employment by an employer, as well as a prior practice of only discharging employees for good cause. An employee handbook might also contain guidelines and regulations asserting that that particular termination practices will be followed.

Public policy exceptions to at-will employment

A majority of states recognize a public-policy exception to at-will employment. Pursuant to the public policy exception, employees are protected against any termination that would violate the state’s public interest. The American Law Institute’s proposed Restatement (Third) of Employment Law recognize four categories under the public policy exception:

  • In particular, an employer is never allowed to discharge an employee for refusing to perform an unlawful act,
  • An employer cannot retaliate when an employee exercises a statutory right, such as filing a worker’s compensation claim against the employer,
  • An employer cannot discharge an employee for engaging in acts that are in the public interest, such as serving on a jury, and
  • An employer cannot retaliate when an employee reports a violation of the law by the employer.

Federal and state statutory exceptions to at-will employment

Employees are protected against unlawful termination by certain state and federal statutes. For example, state and federal statutory law prohibits discrimination based on race, religion, gender, age, national origin, and disability. Also, some states protect against discrimination based on sexual orientation. Examples of federal laws that prohibit discrimination in employment include Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Equal Pay Act, and the Age Discrimination in Employment Act.

Retaliation and whistleblower statutes protecting employees

Numerous statutes protect employees who exercise legal rights. For example, an employer cannot retaliate when an employee files a claim for overtime pay or worker’s compensation, or legally takes time off. Additionally, “whistleblower” statutes protect employees from adverse actions, by an employer, when they report the employer’s wrongdoing or unlawful activity to a state or regulatory agency.

Additional Information

Currently, not all jurisdictions recognize each exception. Additionally, the burden of proof is typically on the employee to show that the termination was unlawful. Montana is the only state where, for employees meeting particular eligibility requirements, employment is not presumed to be at-will. In particular, the Wrongful Discharge from Employment Act, in Montana, creates a cause of action for employees who allegedly have been discharged without good cause.

About the author

Trevor Winston understands fully how serious Wrongful Termination is for affected persons; in addition to workplace issues, Trevor writes on politics, legal reform and other prominent social issues.

Employment Blawg

Employment Blawg

Employment law blogger at LabourBlawg
LabourBlawg is an employment blawg, sharing the best employment law blogs from our contributors. Contact us to find out how to get your employment law intelligence published and shared to wide audience today.
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