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Employment-At-Will

HandelontheLaw.com Staff Writer

Monday, December 02, 2013



Employment-At-Will
Employment

“Employment-at-will” is an oral or written contract between an employer and an employee whereby either the employer can fire the employee or the employee can quit: without warning; and for good cause, bad cause or no cause. It is a dominant type of labor contract in the United States, based on the beliefs that employers/employees have the right to contract as they choose and that the labor market should not be regulated by the government or the courts. Employment-at-will is the default employment contract: barring other provisions or exceptions, the employer can fire or the employee can quit with neither a warning nor a reason. It seems pretty cut-and-dried, doesn’t it? Not so. Being the default contract, employment-at-will can be overridden by several exceptions, some by the actions of the employer/employee, some by common law and some by statute. Predictably, some of these actions, common laws and statutes overlap.

First, there can be provisions in an express contract for dismissal and/or work stoppage. Contracts between employers and private individuals or employers and labor unions or civil service contracts between the government and its workers, for 3 examples, typically require “just cause” or some other reasonable basis for dismissal.

Secondly, there can be an implied-in-fact contract overriding employment-at-will: though the employer and employee have never expressly agreed to adequate notice and reasons for termination, an employer’s policies and handbooks sometimes indicate that termination must be for good cause and/or according to a specific process. In that case, courts in more than 35 states (including California) and federal law may find that there is a contract, implied in fact, protecting the employee from termination without cause or warning.

Third, there can be an implied-in-law contract overriding employment-at-will: more than 10 states (including California) hold that employment relationships automatically include covenants of good faith and fair dealing, whereby there must be “just cause” for termination OR that termination cannot be made in bad faith OR that termination cannot be due to malice.

Fourth, more than 40 states (including California) and the federal government have public policy exceptions to employment-at-will. Here, an employee can be protected from termination in retaliation for: the employee’s refusal to violate public policy (for example, by refusing to do something immoral or illegal); or the employee’s support of public policy (for several examples, by warning the public of a dangerous condition or product, by complaining about harassment, discrimination or illegal activity, by complaining about or reporting health/safety violations, or by performing another protected action).

Fifth, there are statutes that override employment-at-will. Primarily due to federal civil rights statutes, employees are currently protected from being fired because of race, color, religion, sex, national origin, age or handicap status. Federal statutes and some state statutes also protect employees of certain employers from termination for taking family leave or medical leave for specifically permitted reasons. Federal statutes and some state statutes also protect employees from being fired for taking time from work to vote, serve on a jury, serve in the military, or perform other specific acts deemed publicly valuable to our society.

In sum, employment-at-will has evolved through numerous exceptions so variable and complex that they are best explored and explained by a lawyer specializing in Employment Benefits/Labor Law.

DO’S AND DON’TS

DON’T be intimidated by the process or the people.

DO explore whether you are protected by an employment contract requiring “just cause” for dismissal, sufficient notice and a specific process for dismissal.

DO explore the possibility of obtaining an express contract from your prospective employer or current employer requiring “just cause” and sufficient notice for dismissal and outlining the process for dismissal.

DO review your employer’s policies and handbooks regarding employment for specific provisions regarding the reasons and process for dismissal.

DO hire a lawyer specializing in Employment Benefits/Labor Law if you were fired and were employed-at-will but believe you meet one of the many exceptions to employment-at-will.


By Kathy Catanzarite

[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information cannot be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]


Source: Kathy Catanzarite - Handelonthelaw.com Staff Writer

Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither the author, handelonthelaw.com, or any of its affiliates shall have any liability stemming from this article.





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