LEGAL GUIDE
Written by Avvo Staff | Nov 24, 2015

When can at-will employees be fired?

Employment is a double-edged sword for at-will employees. On one hand, they are free to quit their job at any time for any reason. On the other hand, their employers are also free to fire them for almost any reason. There are, however, some situations where termination is illegal.

What at-will employment means

Under most states' laws, employees are regarded as at-will unless otherwise specified. At-will employment means your employer can fire you for any reason. Your employer could fire you for a good reason, bad reason, or no reason.

At-will termination can also occur without notice. The only caveat is that even at-will workers can't be fired for unlawful reasons. As a result, if you're fired illegally, you do have legal recourse.

The opposite of at-will: for-cause employment

By contrast, for-cause employment means you can only be fired for good cause, or a legitimate reason. For-cause protection might come from the following sources:

  • Employers. Some employers have for-cause policies in their handbook that require justification for termination.
  • Contracts. Contracting with an employer limits the reasons for which the employer can fire you. Otherwise, the employer might be found in breach of contract.
  • Unions. Unions might have for-cause agreements with employers.
  • Government employees. Some government agencies are prohibited from engaging in at-will termination.
  • State laws. Montana, for example, gives all employees for-cause status once they complete an initial employment probation period successfully.

Can an employer fire you if they made an implied promise?

Both state and federal laws determine the legality of an at-will employee termination. An exception to the at-will employment rule applies if an implied employment contract exists between you and your employer.

An implied contract is one based on statements your employer made implying the duration or permanence of your job. An implied contract might also exist if your employer broke their own for-cause policy in the employee handbook.

Can an employer fire you for a pretextual reason?

A pretextual termination is when an employer abuses at-will employment to fire employees for dishonorable reasons. Some courts recognize this as a breach of good faith and fair dealing.

Examples of these breaches might include:

  • Firing an employee who's about to qualify for retirement benefits to avoid having to pay out
  • Offering an employee false reasons for termination when the actual motive is to employ someone they wouldn't have to pay as much
  • Transferring employees repeatedly or assigning them undesirable work to coerce them into quitting, which would preclude them from collecting severance pay

Keep in mind that not all states recognize this exception to at-will employment terms. Similarly, some states only recognize this exception if a written employment contract exists.

Can an employer fire you for whistle-blowing?

An employer is typically prohibited from firing at-will employees for reasons that violate public policy. Employers also cannot terminate an employee in retaliation for something the employee did, such as filing a sexual harassment claim.

Both state and federal laws have recognized certain termination reasons as against public policy, including:

  • Firing an employee for missing work for jury duty or to vote
  • Filing a worker's compensation claim
  • Informing the authorities of some illegal practice in which the employer is engaged (whistle-blowing)

Can an employer fire you for your race, religion, and other personal characteristics?

Federal law prohibits discrimination in the workplace, and that applies equally to at-will and for-cause employees. Employers are prohibited from terminating employees for their race, religion, color, sex, pregnancy, age (if 40 or older), national origin, disability, or genetic information.

If you believe your employer fired you for a discriminatory reason, you can file a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The EEOC will investigate and may require you to pursue mediation before suing your employer.

Note that state laws might give employees additional protections. For example, some states prohibit employers from firing employees based on their sexual orientation, marital status, and/or gender identity.

What to do if you've been wrongfully terminated

If you believe you're a victim of wrongful termination, the first thing you'll want to do is talk to an attorney. Your lawyer can evaluate the strength of your claim and advise you on the next step.

For many wrongful termination charges, you'll first need to file with the EEOC. If that doesn't apply to your claim, you'll want to begin collecting evidence to support your case. Examples of important evidence include pay stubs, statements from your employer, and witness accounts.

While at-will employment gives employers a lot of leeway, they still have to obey the law in terminating employees. Firing someone for an unlawful reason can lead to a lawsuit, government sanctions, or both.

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