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7.0 Employment at Will
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Research Report 7.0
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Employers and Employees need to know the concept of employment at will.
The basic law in virtually all states is that an employer may dismiss at any time an employee who was hired for an indefinite period, for any reason or no reason, without incurring any liability to the employee. This general rule is often referred to as "employment at will".
Exceptions
Unfortunately, things are not so simple. Many exceptions to this rule, both from statutes and court decisions, are now recognized. Federal and state laws now protect particular groups of people from arbitrary dismissal or expressly prohibit discharge for particular reasons. For example, the Americans With Disabilities Act prohibits discharge of an employee because the employee is disabled. Federal and state laws also protect various classes of employees from termination due to race, sex, age, national origin and other factors.
The courts have also recognized two basic exceptions to the employment at will rule.
These exceptions are:
An employer may not terminate an employee at will if the termination would violate public policy.
An employer may not terminate an employee at will where there is an implied contract between the employer and employee.
Some state courts have even found that a wrongful discharge has occurred, even though the employer never formally discharged the employee. In these cases, the employee has raised a claim of "constructive discharge". In these cases, the employer causes or allows an employees working conditions to become so intolerable that the employee has no choice but to resign.
Public Policy Exception
A majority of the states have adopted the public policy exception to the employment at will rule. This exception is based on the theory that employees should not be fired for reasons that violate public policy. For example, an employee fired as retaliation for opposing an employer's illegal activities, for reporting fire or other safety hazards or for other kinds of "whistle blowing activities" may be an illegal termination.
Wrongful Discharge Exception
Some states have already adopted, and more states may adopt, a "wrongful discharge" statute. Wrongful discharge laws, where enacted, vary from state to state. Each basically provides limits on when an employee can be fired. The National Conference of Commissioners on Uniform State Laws (the same group that has drafted the Uniform Commercial Code, the Uniform Trade Secrets Acts, and other uniform laws) published a uniform employment termination act in 1992. This model act has not yet been passed by any state. This model law provides that employees can be fired only for "good cause", for example, poor job performance.
Implied Contract Exception
Employers are usually careful not to state or imply that there is any contract of employment for an individual employee. When an express employment contract does not exist and the employee is terminated, courts will often infer contractual obligations from the circumstances between a particular employer and employee. In many states, the contractual obligations have been found in an employer's oral or written assurances that employees would only be discharged for cause. Courts often have inferred these promises from an employer's words and actions. For example, a contractual promise has been inferred when statements like these were made by the employer:
"You will be employed as long as your performance is satisfactory."
"You will be terminated unless your performance improves."
You may have a claim
If you think you have been wrongfully discharged, you should contact a lawyer. It may be necessary to first assert your claim with a federal or state agency before you can go to court. A good attorney can identify whether you have a claim and where it should be pursued.
A good attorney can also advise a client the proper way to discharge an employee to prevent litigation. In any case, knowledge about the subject is the best protection for an employee and an employer.
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