Article main image
Apr 10, 2013

By John A. Gallagher

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 my experience that folks do not know what that overriding principle, that one can be fired at any time and for any reason, 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 employment at-will

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, 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.

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.

Government workers are not at-will employees

Employees of federal and state governments cannot be fired without cause. Not only that, but government employees are entitled to due process before they are terminated. In fact, the federal government has a mediation department that will intervene if a dispute arises between employees and their co-workers or managers.

Wouldn’t that be a nice perk for Joe or Jane Average employee?

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!

I 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!

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.

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 also:

  • Means you may be fired if your boss does not like you.
  • 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.
  • Means you may be fired if the company incorrectly believes you did something wrong.
  • 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.
  • Means you may be fired out of spite, or over a petty dispute.

If you the company believes that you did something wrong and you did not, then you can prove that at an Unemployment Hearing, and will get unemployment benefits. However, even if you prove your complete and utter innocence at that Hearing, the company will not be required to rehire you because you were employed at-will.

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.

However, numerous state and federal laws have over the years sprung up to protect at-will employees from firings that come about due to nefarious reasons. The laws to which I refer to that are most familiar to the average American are Title VII (and similar state laws), the Family and Medical Leave Act (FMLA), the Americans With Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA). Click here to read more about these and other anti-discrimination laws and how they work.

Bullying is not illegal

All of the above being said, it is apparent to me that the American workforce still does not fully understand the at-will doctrine, or is unwilling to accept its effect. This is particularly true where workplace bullying is concerned.

Many courts are fond of saying that there is no “civility code” governing the workplace. I supplement that by telling callers that there are no “civil police” in the U.S. If a person is being subjected to mistreatment in the workplace, there are no “civil police” who will come to stop it.

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.

This was also published on attorney John A. Gallagher’s Employment Law 101 blog.

Get articles like this
in your inbox
Subscribe to our mailing list and get interesting articles about talent acquisition emailed weekly!