At-Will Employment

At-will employment is the law in the Washington, DC-metro area (as well as most states in the nation). Many people that I talk to take this to mean that they do not have any recourse if their employer mistreats them. The good news is that this may not be true for you. While it is true employees have wide latitude to fire workers, there are many exceptions.

Note that at-will employment primarily applies to private, non-unionized employers. Public employees often have due process rights. Union workers are often covered by a union grievance procedure.

Exceptions to at-will employment liability:

  • Whistleblowing and reporting wrongdoing. Judges have found that they need to balance society needs to further the public’s interest in law enforcement against an employer’s need to control its workforce. For instance, if the reason for the firing is that the employee reported to government officials illegal pollution by the employer, a judge would probably allow a lawsuit seeking damages by the ex-employee against the company. You may hear courts refer to these as “termination in violation of public policy.” Occasionally you may hear this referred to as “wrongful termination,” which can be a bit confusing because technically firing someone for any reason that is a violation of federal or state law is “wrongful termination.” Still, some courts and commentators use this term wrongful termination to mean a termination in violation of public policy. You can read more on this website about termination in violation of public policy.
  • Discrimination. Discrimination is generally defined as taking an adverse action against an employee or potential employee based on race, color, religion, sex, national origin, age or disability. Retaliation against those who report illegal discrimination or get involved in an investigation or litigation is illegal.
  • Pay, medical leave and disability. It is unlawful to fire an at-will employee based on pregnancy, family medical leave, or disability.
  • Retaliation. Many times it is unlawful for an employer to fire an at-will employee for trying to oppose discrimination or other illegal acts, even if it turns out the employee is wrong about that the actions were illegal.
  • Hostile work environment and sexual harassment. It is also illegal to force an at-will employee to work in a hostile work environment or to subject them to sexual harassment. Note, however, that not all improper behavior in the workplace constitutes what a court would consider a “hostile work environment,” at least as that term is defined in employment law. For an employee to be able to seek help from the courts, the hostility must be due to a person’s race, sex or national origin. If your boss is a jerk, even a really big one, that may not mean you can sue (successfully) claiming a hostile work environment. But if you boss is a jerk to you because you are, for instance, pregnant, then that is legally wrongful even if you are at-will.
  • Contract. Did you know that if you are an at-will employee you actually do have a contract with your employer? It’s just one that can be terminated at any time. That means, in some instances, an employer can be found liable for violating contract law. An employer also must abide by the limitations contained in the terms of any employment contract between the employer and employee. This contract may be written (which is the easiest to enforce), implied by the conduct of the parties or an oral contract.

Unemployment Insurance

An at-will employee can apply for unemployment benefits after being terminated. An employer can oppose payment of benefits, but to win must show that termination resulted from the employee’s conduct.

Do the rules in my employee handbook protect me from being fired?

An employer may provide you with a handbook when you’re first hired. It may contain a list of actions which could get you disciplined or fired and a process by which that would happen (such as a verbal warning, then a written one, then termination). It’s also probably broad and vague, stating that management can discipline and fire you for a reason not on the list. In some cases, employees have been able to sue ex-employers because judges have interpreted handbooks as contracts. That is normally difficult and many employers include language clarifying the handbook is not a contract.

At will employment gives a lot of power to employers to fire and lay off employees, but that power is not unlimited. You may have been working under a contract and there are any number of laws that your ex-employer may have violated when you lost your job. You may have a valid claim for wrongful termination and not know it. It’s important that you contact our office so we can talk about your situation, go over the facts of your case, discuss your situation and the applicable laws. Losing your job is difficult enough. Don’t also give up your legal rights by simply putting it behind you without first talking to us to determine if your legal rights have been violated.

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