At-will employment is a term that means an employer can fire an employee for any reason, or no reason, with no warning, and without having to establish just cause. About 74% of U.S. workers are considered at-will employees.
Which States Are Not at Will Employment?
Montana is the only state in the U.S. that is completely not at-will. All other states in the U.S. have some version of at-will employment. In Montana, employers can practice at-will employment during a probationary period only. Other states do have exceptions to at-will employment.
Common Exceptions to At-Will Employment:
1. Public sector employment.
Public workers are not typically subject to at-will employment.
2. Unionized jobs.
Union workers may have collective bargaining agreements that exempt them from at-will employment.
3. Contract basis employment.
Contract workers may have a contract with their employer that exempts them.
4. An employee refusing to violate public policy.
At-will does not apply when employees refuse to violate public policy or take action that is protected by public policy. The exception does not apply in Alabama, Georgia, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida.
5. An employee taking actions protected by public policy.
At-will does not apply when employees take action that is protected by public policy. This includes whistleblowing or reporting of unsafe or illegal activity. The exception does not apply in Alabama, Georgia, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida.
6. An employer implying that there is a contract.
In all but 14 states employees may not have at-will status if the employer implies a contract. The 14 states include Arizona, Delaware, Florida, Georgia, Indiana, Louisiana, Massachusetts, Missouri, Montana, North Carolina, Pennsylvania, Rhode Island, Texas, and Virginia.
7. A breach of good faith by the employer.
At-will does not apply if there has been a breach of good faith by the employer. For example, firing someone to deny a retirement package. This applies in 11 states. The 11 states include Alabama, Alaska, Arizona, California, Delaware, Idaho, Massachusetts, Montana, Nevada, Utah, and Wyoming.
8. An employer discriminating.
At-will employment does not apply if an employee is terminated due to discrimination.
9. An employee refusing to do something illegal.
At-will employment does not apply if an employee is terminated for refusing to do something that is illegal.
10. An employer retaliating against union members.
If an employer terminates employees for union activity, at-will employment does not apply.
That should help you to determine if your employees are at will, and help you avoid situations that nullify your at-will status.
At-Will Employment States:
While nearly all states recognize at-will employment, certain states have their own limitations imposed on it, in addition to federal laws. The three basic exemptions required by states are public policy exemptions, implied contract exemptions, and covenant of good faith exemptions.
Public Policy Exemptions: States who can apply federal requirements at the state level have Public Policy Exemptions.
Implied Contract Exemptions: States with at-will employment contracts that can be terminated for "just cause" have Implied Contract Extensions.
Covenant of Good Faith: Sates with at-will employment contracts that can be terminated for "just cause", even though the contracts might not stipulate that, have Covenant of Good Faith Exemptions.
States With At-Will Employment Public Policy Exemptions:
- New York
- Rhode Island
States With At-Will Employment Implied Contract Exemption
- North Carolina
- Rhode Island
States with At-Will Employment Covenant of Good Faith Exemption:
1. Does at-will employment require employees to give a notice period?
No. Just as employers are not required to provide a reason to dismiss at-will employees, employees are not legally required to give a notice period. However, some companies might have company policies that stipulate a notice period.