Question: What is “employment at will?” Does this mean that I have no rights if I’m fired for a bad reason?
Answer: “Employment at Will” is the general concept that the employment arrangement is voluntary. The employer can fire his or her employee “at will” (whenever he or she wants) and the employee can quit “at will.” Almost.
Virginia employee rights attorneys at Albo & Oblon would have little to do if the “employment at will” doctrine was absolute. Here are the most common employee rights that form an exception to the “employment at will” doctrine:
- Contracts – An employee can negotiate a contract that limits termination absent a “cause.” Much federal and state employment is effectively “for cause.” Most employees think they have this form of contract; few actually do.
- Discrimination – An employer cannot terminate an employee if doing so is based on the employee’s race, creed, religion, national origin, sex, handicap, disability, pregnancy, or age. (In Maryland and the District, but not Virginia, it is unlawful to fire an employee because of the employee’s sexual orientation).
- Retaliation – An employer cannot fire an employee who complains about discrimination or for retaliation over a number of protected activities, such as participation in jury duty or refusal to commit a crime. This is a powerful remedy. Even if the the employer did not discriminate against the employee, if he or she fires the employee as a result of the wrongful accusation, the employee can sue for wrongful termination as if the accusation was true under the retaliation doctrine.
- Unions – Many union contracts ban terminations “at will.” In addition, the National Labor Relations Board punishes employers who terminate employees who are seeking to unionize the workplace or are otherwise involved in union activity.
Often, an employee is upset with his or her employer for some slight that doesn’t rise to an exception to the “at will” employment doctrine. The law is not a general civility code. If the employer is not “nice” or acts “unprofessionally,” “yells at” or “demeans” an employee, there is probably no wrongful termination cause of action to defeat the “at will” doctrine. The Virginia employee rights attorneys at Albo-Oblon look behind the entire employment relationship to uncover different causes of action. For example, a terminated employee may have an awful case for discrimination, but the employee rights attorney may see that there is a great case for seeking damages under the wage-hour laws. (The wage-hour laws require an employer to pay the minimum wage, plus “time and a half” for overtime). Or, the employee may have been improperly classified as an “independent contractor” instead as a W-2 employee. (Employers have the incentive to call all their employees “independent contractors” if they could; it saves them a lot of money in taxes. Many overreach). In both of these cases, an employer could have a cause of action against the employer for violating the employee’s rights. Attorneys can help identity causes of action that may not be obvious to the employee.