What is at-will employment?

The legal rule of at-will employment is the presumptive employment relationship in the United States. It means that an employer can hire or terminate a worker for any reason or no reason at all, so long as that action does not violate existing legal protections. It also means that an employee may leave a job for any reason or no reason at all, again, subject to existing legal protections.

Outside the U.S., at-will employment is not the norm. In many industrialized nations, workers can be terminated only for just cause, which usually means inadequate performance, serious misconduct, or financial exigency. Within the U.S., such protections typically extend only to unionized workers (less than 12 percent of the workforce) and to select categories of employees, such as tenured professors.

At times, at-will employment can inure to the employee’s benefit, especially if someone has unique talents that can be shopped around in the midst of a robust job market. However, more often the employer holds the cards in at-will employment situations, especially when jobs are in short supply.

This is why employers in the U.S., in particular, have been extremely opposed to relinquishing their at-will right to hire and fire. It’s one of the main reasons why they resist labor unions that introduce collective bargaining to the employment relationship.

Here’s a snippet of what I wrote about at-will employment in my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review):

The low union density in America means that most workers are not covered by collective bargaining agreements and presumptively are at-will employees. In terms of voice in the workplace, the typical at-will employee enjoys, at best, the ability to make requests of, or submit non-binding suggestions to, an employer. Only the most fortunate individuals, notably those with special skills or in high-demand professional, athletic, or artistic vocations, possess the leverage to engage in individual negotiations over job security, compensation, and working conditions.

Consequently, in most non-union workplaces, the power to set internal employment policies, as well as compensation and benefits, remains largely in the hands of management, but is subject to compliance with regulatory standards. At larger companies, high-level executives establish broad parameters for employment relations, human resources offices administer personnel policies, and mid-level managers supervise and evaluate the work of sub- ordinates. They are supported by in-house lawyers who provide advice, counsel, and litigation support.

Of course, at-will employees are not without labor protections and safeguards. In particular, the 1960s and 1970s witnessed the emergence of a large body of statutory, administrative, and common-law protections granting various employment rights to individuals. The most notable of these are the Civil Rights Act of 1964 and other employment discrimination laws, the Occupational Safety and Health Act, and various wrongful discharge claims grounded in contract and tort law doctrine. The ongoing development of this body of law has resulted in greater safeguards against physical and dignitary harms, created several exceptions to the rule of at-will employment, and forged a modest safety net of wage and benefit protections.

For most American workers, this somewhat unwieldy legal smorgasbord serves as their primary source of legal protections on the job. Although the creation of individual employment protections was spurred in part by civil rights advocacy backed by the solidarity of social movements, workers often must effectuate these rights in solitary fashion, pursuing stressful, lengthy, and expensive legal proceedings, typically without the benefit of large group or union support. Modern employment litigation all too often encompasses the David versus Goliath scenario of an aggrieved worker and a small plaintiffs’ law firm vying against a large company armed with an overstaffed team of attorneys.

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Related posts

“Master and servant”: The roots of American employment law (2013) — “‘Master and servant’ is a legal term ported over from English common law, centuries ago. It is what it sounds like, a term deeply rooted in hierarchical, subservient personal and occupational relationships.”

At-will employment and the legality of workplace bullying: A brutal combo punch (2011) — “In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.”

“On Limiting the Abusive Exercise of Employer Power” (2011) — “For legal geeks like me, one of the starting places for understanding the modern state of workers’ rights is a classic 1967 Columbia Law Review article by University of Kansas law professor Lawrence Blades, ‘Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power.’ . . . Although he may not have fully anticipated the growth of the service sector and the non-profit sector and the significance of employment discrimination law, his success is in how he foresaw the expansion of private economic power and shaped the thinking of employment law scholars and other legal stakeholders.”

4 responses

  1. In 2005, our workplace developed a Bullying Behavior policy based on the handouts I obtained at Laney College when Dr.Gary Namie headed a conference that addressed the administrative bullying of a math professor at Laney. Every employee had to sign and date a copy of our Bullying Behavior policy for their file. In 2012-13, I became aware that new employees weren’t being given a copy of the policy and looked for some way to reestablish the requirement of signing off on management’s established bullying policy.

    I read through our Employee Handbook and found that I could make a request of management for the signing off on the Bullying Behavior policy to be included in the Handbook. Why it wasn’t already included in the handbook I don’t know.

    In reading the Handbook I found that “at-will employment” was emphasized a couple of times. To my way of thinking about dignity, respect and humanistic management, particularly in a services organization in which the majority of employees were people with disabilities, it wouldn’t have detracted from the at-will emphasis to also include after an at-will statement some language about, of course, being committed to “good faith” and “fair dealing.”

    I did a little research and came up with, “The employment-at-will doctrine: three major exceptions,” by Charles J. Muhl in the January 2001, Monthly Labor Review, p.10:

    “Recognized by only 11 States, the exception for a covenant of good faith and fair dealing represents the most significant departure from the traditional employment-at-will doctrine. Rather than narrowly prohibiting terminations based on public policy or an implied contract, this exception—at its broadest—reads a covenant of good faith and fair dealing into every employment relationship. It has been interpreted to mean either that employer personnel decisions are subject to a “just cause” standard or that terminations made in bad faith or motivated by malice are prohibited.”
    “As with the public-policy exception, California courts were the first to recognize an implied covenant of good faith and fair dealing in the employment relationship.”

    In Kmart Corporation v. Ponsock, the court included in its opinion:

    “We have become a nation of employees. We are dependent upon others for our means of livelihood, and most of our people have become completely dependent upon wages. If they lose their jobs they lose every resource except for the relief supplied by the various forms of social security. Such dependence of the mass of people upon others for all of their income is something new in the world. For our generation, the substance of life is in another man’s hands.”

    Citing the policy of being able to make requests for changes in the Employment Handbook, and wanting to gauge the support for this, I sent around to all employees an email and hard copy my idea of re-establishing the validity of our Bullying Behavior policy. I was fired the next day on the pretext that I shouldn’t have been sending around my idea.

    In Catania v. Eastern Airlines, Inc, the court stated:

    “To require employers to demonstrate valid grounds and methods for an employee’s discharge does not unduly restrict employers; it merely provides some balance of power.”

    If I don’t find another job soon, I will be homeless in a few months.

  2. Dear David…I have questions:
    Question 1: If California courts, and the other States (including Massachusetts) recognize a “covenant-of-good-faith exception” to the “at-will” doctrine, would a company’s employee handbook–which includes the “at-will” policy but not also the covenant-of-good-faith exception–be considered misleading, fraudulent or in violation of something, if not state judicial decisions or law then at least in violation of standards of dignity, respect and trust?

    How great it would be for employees reading their Employee Handbooks to be assured by a little covenant-of-good-faith wording that the people to whom they have given up much of their power and freedom aren’t inclined to be totally monstrous power abusers, but that maybe they can be trusted to do the right thing. It would surely increase my respect and trust in such an organization.

    Question 2: Doesn’t the California law (AB 2053) requiring the training and education of supervisors and management in workplace abusive behavior and bullying, in effect, create a potential “public policy” exception to the “at-will” doctrine? A clear mandate of public policy is a public policy that has been legislatively or judicially recognized. The people (the legislators) have in essence said that the prevention of workplace abusive conduct, with malice, of an employer or employee is “public policy.” If someone is “at-will” fired or retaliated against because they stood up to, or questioned a supervisor’s abusive conduct with malice, they are following the “public policy” which was created to prevent that kind of behavior, and thus their substantiation of “public policy” creates an exception to an “at-will” firing or disciplinary action. Hopefully.

    • Charles, for the most part the covenant of good faith and fair dealing has not been extended to job security issues in employment litigation. I have not done a close study of its application in CA, however, so perhaps this claim is better received there. As for the public policy exception in California, what you’re suggesting is an untested but somewhat difficult argument, as the CA workplace bullying law does not create a right to be free of abusive work environments. The clearest application of the PP exception in CA re the new law is if, say, someone was fired for complaining that an employer did not engage in the required training and education program.

      Beyond those observations, I’d have to rely on those with more specific expertise in CA employment law.

      Best,
      David

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