There are very few exceptions to the at-will employment rules.
You’ve probably heard a story like this: There’s an employee — let’s call him Fred. Fred shows up to work every day, Monday through Friday, for almost twenty years. Barely takes any vacations. Doesn’t rock the boat. Does as he’s told. Gets the job done. A company man through and through.
Then one day, out of the blue, the boss calls Fred into his office. The boss isn’t smiling; in fact, he can barely even look Fred in the eye. Fred is fired, he says. For no particular reason — it’s nothing that Fred did, or didn’t do, it’s just that the company is going in a new direction.
“Termination without cause” he calls it. There’s a terse termination of employment letter to go with it. And just like that a decades-long relationship vanishes into thin air. No gold watch. No awkward office party. Just a morose looking security guard watching over Fred as he packs twenty years of memories into a cardboard box. A few days later, somewhere between anger and depression, Fred gets the idea to call an employment attorney. Surely, he thinks, this amounts to unlawful termination or wrongful termination or whatever the lawyers call it.
Is he right?
The Harsh Realities of At-Will Employment
It might seem like Fred has a good case, but in reality he probably doesn’t. The truth is that nearly every employee in America works on what is known as an “at-will” basis. In terms of termination of employment, that means that, with very few exceptions, employees can be fired at any time and for any reason.
That remains true even in cases where, like Fred, the employee had performed well over a long period of time and didn’t violate any company rules or regulations.
Exceptions to the At-Will Employment Structure
There are three major exceptions to the at-will employment structure that might help an (ex-)employee suing for wrongful termination. The first is the easiest: if you have a contract. An employment contract signed by employee and employer is a binding agreement that applies to both parties. So if that employment contract contains language that, say, only allows for termination for cause, then the employer is required to abide by its terms or risk a lawsuit for wrongful termination.
The second exception is for statutorily-protected groups. It may be illegal to terminate an employee on the basis of that employee’s membership in a protected class, which can be defined by age, race, gender, religion or disability. So if Fred was fired for, say, being Muslim (and he could prove that that was the reason), then that would be an example of wrongful termination and he would strong basis for a lawsuit.
Retaliation Can Be Wrongful Termination
- filing or being a witness in an EEO charge, complaint, investigation, or lawsuit.
- communicating with a supervisor or manager about employment discrimination, including harassment.
- answering questions during an employer investigation of alleged harassment.
- refusing to follow orders that would result in discrimination.
- resisting sexual advances, or intervening to protect others.
- requesting accommodation of a disability or for a religious practice.
- asking managers or co-workers about salary information to uncover potentially discriminatory wages.
And retaliation can take many forms — in addition to firing an employee, transferring an employee to a less desirable position, subjecting them to verbal or physical abuse, or even simply making the employee’s work more difficult, can all constitute forms of “retaliation.”
The trouble is that employers will often claim that there was some other reason for the termination. At that point it’s up to the judge (and the employment attorneys) to hash out whether the timing and other circumstantial evidence is sufficient to establish whether the employee was fired in retaliation for some protected action. If so, the employee is likely to be able to sustain an action for wrongful termination.
Employment law can be tough to navigate, and doesn’t always leave an aggrieved employee with many options. That’s why it’s critical that you obtain the best legal representation possible. At John L Mays our team of seasoned attorneys is ready to help you get the best result out of a tough situation. Give us a call today.