At-Will Employee FAQ's
Frequently Asked Questions About At-Will Employment
- What does at-will employment mean?
- What is an employment contract, and how does it affect me?
- My employer is asking me to sign all kinds of documents. What do they all mean?
- Do I have to sign the at-will agreement?
- How do I know if I have a claim for wrongful termination?
- Get an evaluation of your employment-related legal matter
Many people are surprised to learn, whether from an employment contract or employee handbook, that they are an "at-will employee." This means that your employer can terminate you at any time, for any reason — with or without notice. An employer has the right to walk up to an at-will employee and say, "I don't like that your favorite color is purple. You're fired." There are very few, if any, remedies for you unless your employer did something to violate your employee rights or broke labor laws.
All states but one (Montana) have adopted laws that protect the employer in at-will employment. In Montana, the employer does not have to have good cause to terminate your employment. Unless you signed some sort of employment contract that states you cannot be terminated without good cause, it is assumed that you are an at-will employee.
Many times, an employer will come right out and say that you are an at-will employee. On the contrary, employees have won cases where their employers told them they could only be fired for good cause. Even statements as lighthearted as, "You'll always have a place here, as long as you keep up the great work," have been held to mean that the employer does NOT follow the at-will employment law.
If you are told during the hiring process or after accepting the job, that you are an at-will employee, your employer can rely on that statement in a legal proceeding, as proof that you may be fired without cause.
An employment contract is an agreement between the employer and the employee that outlines the basic details of the job. When it is signed by the employee, the contract becomes binding. There are various types of employment contracts. Even within one company, different employees may be asked to sign different employment contracts, based on each employee's duties. Sometimes there is no written contract but a contract is implied through an oral understanding or simply by the behavior of the employer and the employee.
The typical employment contract includes the employee's start date, salary, and benefits. Other common elements that may or may not be on your employment contract are
- Confidentiality agreements, or "non-disclosure agreements," where the employee promises not to share any information on secrets, processes, formulas, data, machinery usage, or how business is conducted.
- Non-compete agreement, where the employee agrees that for a specified time after employment ends, the employee will not work for any competing company or engage in any business that competes with the employer and will not steal any of the employer's customers
- Ownership of inventions, where the employee who invents as part of their employment agrees that anything she invents within the scope of their employment belongs to the employer
- Exclusive employment, where the employee agrees that she will not work for any other company in the same or similar type of business while employed under the contract
- No additional compensation, where the employee is not entitled to any additional compensation should she become elected as an officer or serve on a committee
- Termination, where either party may terminate the employment for any reason — even if the employee becomes unable to perform the work due to illness or injury
- Arbitration, where the employee agrees to use arbitration or mediation to resolve any issues with the employer, rather than going to court
- Choice of law, where the agreement asserts that should any dispute ever arise in a lawsuit, it will be governed by the laws of a particular state, regardless of where it is filed
It is common to expect to read and sign numerous documents when you start your job. These documents often include company policies, applications, employee handbooks, at-will employment agreements, and job evaluations.
Employers are almost always certain to include that their employees are at-will employees. Look through these documents at your job and see if any of them mention that you are an at-will employee. Even if the documents do not use the term "at-will," any language implying that your employment can be terminated at any time means the same thing as "at-will."
You are probably an at-will employee unless the documents state otherwise. If you signed any of these documents that state that you are an at-will employee, then you have agreed you understand you can be terminated at any time. Keep in mind that you may (and sometimes should) negotiate with your prospective employer.
A lot of times, employers will ask you to sign an at-will agreement, among the endless stack of other documents to sign. This is to ensure that they have secured their right to terminate at will.
Theoretically, you do NOT have to sign the at-will agreement. However, courts have consistently held that the employer can terminate you or even refuse to hire you if you refuse to sign the at-will agreement.
Instead, they typically want to work with the employees to solve any problems or issues with the employment. A very popular method of doing so is using a performance improvement plan. This is basically a document that asks the manager to fill in what a certain employee needs to improve by a certain date.
Take caution when signing at-will employment agreements if you relied on your employer's comments about guaranteed continuous employment when you accepted the job.
For instance, if you have an interview and the employer promises to give you a full year to learn the ropes and you can't be fired during that year. This sounds like a great deal for you, and for this reason, you take the job. You may not want to sign an at-will agreement in this instance. If your employer attempts to terminate your employment within that year and you take legal action, you may be able to use your employer's one-year promise against them.
There are many labor laws an employer can break when wrongfully terminating an at-will employee. Just because you are an at-will employee, does not give your employer the right to be discriminatory. As discussed below, state and federal law prohibits discrimination based on several categories, including:
- National origin
- Pregnancy status
Some states protect against discrimination based on sexual orientation or gender identity.
Not all wrongful termination claims are based on discrimination. If you have an employment contract with your employer, even if it is an implied contract, and it is terminated prematurely, then your employer may have breached the contract. In this case, you may be able to bring a claim for wrongful termination or breach of contract.
If your employer terminates you out of retaliation because you exercised some right, such as reporting the company for public health and safety violations or making a harassment claim, you may have a wrongful termination claim. Likewise, if your employer terminates you for refusing to perform an illegal act, such as doing construction at a designated height without safety ropes, you may have a wrongful termination claim. If you take off work for a purpose protected by law, such as voting or military service, and your employer terminates you, you may have a wrongful termination claim.
Damages for wrongful termination can include back pay, a promotion, reinstatement, front pay, compensatory damages, reasonable accommodations, injunctive relief (forcing the employer to do or stop doing something), punitive damages, and attorney's fees. It is best that both the employee and the employer hire an employment lawyer.
Even if you are an "at-will" employee, it doesn't give the employer the right to fire you for any reason — particularly if they run afoul of state or federal anti-discrimination laws. If you believe you were treated unfairly by an employer, you may want to speak with an employment law attorney. Get an evaluation of your employment-related legal issue today.
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