By Priscilla Kohl | HRTools.com Business Writer
Before pointing out certain exceptions to employment-at-will, employers and supervisors will want to first secure a basic understanding of the term, and shed any misconceptions. Although it’s a commonly used phrase, employment-at-will can often be misunderstood, which in turn can affect the employee-termination decision process.
As a brief review, the following details provided by the Society for Human Resource Management (SHRM) summarizes employment-at-will:
- Employment-at-will is not a law; it is a doctrine based on common law.
- Employment-at-will states that an employment relationship may be terminated by the employer or employee at any time and for any or no reason, unless prohibited by law.
- In every state, with the exception of Montana, employers are free to adopt at-will doctrines.
Employee terminations usually fall within a supervisor’s list of responsibilities. Regardless of experience or training, the day a supervisor has to call an employee into his or her office in order to terminate that worker’s employment is undoubtedly a dreaded occasion. While no one can anticipate all the possible emotional reactions to an employee dismissal or firing, at minimum, supervisors should be trained to handle employee terminations in a lawful manner.
Why is this information important for supervisors? Again, supervisors should first understand the basis for “employment-at-will,” along with its exceptions. If they do not, and unlawful termination occurs, supervisors are putting their employers at risk by exposing them to costly lawsuits, fines and penalties.
And, in the final analysis, while the employment-at-will doctrine means that employers and employees generally can terminate an employee relationship at any time, and for any or no reason, employers should also become aware of certain exceptions. Although a comprehensive list of all possible exceptions is beyond the scope of this article, the following is provided to give supervisors an idea of how employee terminations can be impacted by various federal and state laws; and how legal interpretations can also be based on common law cases.
Additional Note: The following is provided as general information only and is not intended to serve as legal advice. Employers are encouraged to seek legal counsel or the services of an HR professional, in order to attain more definitive guidance.
- Unions and collective bargaining—employers should understand the differences between employment-at-will and “right-to-work” states. Right-to-work states are those states with statutes that prevent labor-management agreements requiring an individual to join a union as a condition of employment. These laws do not cover involuntary terminations or resignations. See here to access an interactive U.S. map which identifies states with right-to-work laws and those states that do not have compulsory unionism. A state shown within the latter group is identified as a “Forced Unionism State.”
- Whistle-blower acts and claims—a growing number of states are expanding public policy exceptions in the area of whistle-blower legislation. Many states have and are enacting statutes in order to protect workers and/or to encourage them to inform authorities of suspected illegal or unethical practices undertaken by an employer or its management, or other employees. In addition to state whistle-blower acts, employers and supervisors should also become familiar with federal whistle-blower acts. For an example, see this OSHA news release dated July 7, 2010, which states, “Workers who ‘blow the whistle’ on prohibited or unlawful practices in the workplace as well as safety and health discrimination play an important role in assuring compliance with federal laws.” OSHA currently administers 18 federally protected whistle-blower statutes.
- Title VII of the Civil Rights Act of 1964—this federal legislation expanded the scope of employee protections by prohibiting employers from terminating workers based on their race, color, religion, sex or national origin. Moreover, since 1964, additional federal laws have been passed that protect an even wider class of employees, such as the Age Discrimination in Employment Act, which prohibits discrimination against workers age 40 and above.
These statutes also prohibit employers from retaliating against employees who assert their rights under these laws. To learn more about related federal laws, go to the U.S. Equal Employment and Opportunity Commission (EEOC) website. The EEOC is the federal agency responsible for enforcing these laws. Click on “Employers” from the EEOC home page to review its comprehensive list of discrimination types.
Employers should also contact their state governments, because many states have passed their own legislation, which is similar to Title VII, but may include even more protected classes. For example, the Illinois Human Rights Act prohibits discrimination and harassment of employees based on race, color, religion, national origin, ancestry, citizenship status, age, sex, pregnancy, disability, marital status, arrest record, military status and unfavorable discharge from the military.
As a general rule, employers should keep in mind that taking retaliatory action against an employee is unlawful. It is also important to know that anyone can file a complaint with the EEOC. This cautionary note applies not only to employee terminations, but also to any phase during the employee’s tenure.
As stated at the EEOC website under the heading, “Retaliation and Work Situations:”
“The law forbids retaliation when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, and any other term or condition of employment.”
Finally, as previously stated, employers are encouraged to seek legal counsel or contact an HR professional for more definitive guidance, particularly if it concerns establishing an employment-at-will statement for use with workplace employees.
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The information contained in this document is for general, informational purposes only and is not intended to be legal advice. This information is not a substitute for the guidance of a professional and should not be relied upon in reference to any specific situation without first seeking the advice of a qualified HR professional and/or legal counsel regarding applicable federal, state or local laws. HRTools, Insperity and their respective employees make no warranties, express or implied, and make no judgments regarding the accuracy of this content and/or its applicability to a specific situation. A reference or link to another website is not an endorsement of that site or service.