At-will employment means that an employer can fire an employee for any reason (if it's not illegal), or no reason, with no warning, and without having to establish just cause. About 74% of U.S. workers are considered at-will employees.
At-Will Employment States:
All states in the U.S., excluding Montana, are at-will. Most do have exceptions, but the states of Florida, Alabama, Louisiana, Georgia, Nebraska, Maine, New York, and Rhode Island do not allow any exceptions.
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.
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.
Learn about the common exceptions to at-will employment.
Can you sue for wrongful termination in an at will state?
At-will employment refers to an employer's right to terminate an employee at anytime, without reason. However, an employer does not have the right to fire an employee because of any illegal reasons including discrimination, disability, or retaliation.
View this article on wrongful termination for more information on terminations.
What is considered an at will employee?
At-will refers to an employee that is free to leave a job at any time for any or no reason. Furthermore, an employer also has the power to dismiss an employee at any time for any legal reason or for no reason without the risk of legal liability.
Read about the various exceptions to at-will employment.
Are most jobs at-will employment?
No, not all jobs should be considered at-will employment.
Are at-will employees required to provide 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.
Which states exercise public policy exemptions regarding at-will employment?
- New York
- Rhode Island
Which states imply contract exemptions in relation to at-will employment?
- North Carolina.
- Rhode Island.
Which states apply the good faith exemption agreement in at-will employment?
Can at-will employees collect unemployment?
Depending on the circumstances and the state, at-will employees may be able to collect unemployment benefits if they are fired. They are eligible for unemployment benefits if they become unemployed through no fault of their own.
If employees decide to quit their jobs, they are unlikely to be eligible for unemployment benefits, although there are some exceptions that may apply.
What is the alternative to at-will employment?
Contract employment is the alternative to at-will employment. A contract can be either written, or in some cases, implied. Contracts recognized as being implied can be regarded as legally binding.
Even if there's a written or implied contract, employers can still fire employees if they have a good reason, or just cause, to do so.
What's the difference between at-will and just cause firing?
At-will employment means that both employers and employees have the right to terminate employment at any time, with or without cause, and with or without notice.
Just cause means that an employer has a good reason to fire a worker. Examples of just cause include poor work performance, criminal activity, violating company rules, and harassment of co-workers.
Can an at-will employee sue for wrongful termination?
There are cases where at-will employees can sue for wrongful termination. They include:
- Contracts or agreements, written or implied, replaces at-will employment.
- Breaches of Good Faith and Fair Dealing, for example, when an employee is fired to prevent them from earning commission.
- Violations of Public Policy, for example, being fired for asking time off work to vote.
- Discrimination, for example, if you believe you were fired because of your race, religion, gender, and all other illegal forms of discrimination.
- Retaliation, for example, if you were fired after having filed a sexual harassment charge against a co-worker.
- Fraud, for example, if an employer made a fraudulent representation of a just cause.
- Defamation, for example, your former employer provided false and malicious references that harmed your chances of finding a new job.