In the majority of U.S. states, employment is generally presumed to be “at-will” meaning that such relationship is subject to the mutual will of both parties and may be terminated by either at any time, without or without notice, for a good reason, a bad reason or no reason at all. However, employment at will is not an absolute principle and there are a number of well recognized exceptions. These exceptions include, among others, employment for a fixed term, implied contracts, legislation, wrongful discharge, constitutional restrictions and civil service laws.
Are you employed for a fixed term? Generally, where employment is for a fixed term, an employee may not be terminated except for good cause. The meaning of good cause is generally subject to the facts and circumstances of the employee’s position and failure to perform. If the term of employment is one year or less, there is generally no requirement that the arrangement be in writing to be enforceable. However, to enforce an employment arrangement where the term is longer than one year the terms must have been reduced to writing. Even where the arrangement must be reduced to writing, a formal contract is not required but merely something signed by the employer that provides the fixed term.
Do you have an implied contract? In some instances, courts have recognized a claim for an implied contract that limits the employer’s ability to terminate an employee based on statements in employment handbooks, policy manuals, offering letters and sometimes oral promises.
Does federal or state law protect your employment? There are a host of federal and state laws that serve to protect employees including laws that limit the ability of the employer to terminate the employment relationship in certain circumstances. Among others, these laws include:
- Title VII of the Civil Rights Act of 1964 (“Title VII”) which prohibits race discrimination, color discrimination, gender discrimination, religious discrimination and national origin discrimination;
- Age Discrimination in Employment Act of 1967 (“ADEA”) which prohibits age discrimination;
- Americans with Disabilities Act (“ADA”) which prohibits disability discrimination and generally imposes the duty to make reasonable accommodations for employee disabilities;
- The Employee Retirement Income Security Act of 1974, as amended (“ERISA”) which prohibits discrimination or retaliation to deprive an employee of benefits due under any employee benefit plan;
- The Older Workers Benefit Protection Act (“OWBPA”) requires that certain employers follow certain procedures and steps to receive releases from covered employees;
- The Family and Medical Leave Act (“FMLA”) provides requirements that employee’s be provided unpaid leave for personal or immediate family health needs;
- The Worker Adjustment and Retraining Notification Act (“WARN”) which requires employers to provide notice 60 days in advance of covered plant closings and covered mass layoffs;
- Whistleblower laws which prohibit retaliation against employees that disclose, or threaten to disclose, perceived fraudulent, unsafe, or other illegal practices as covered by the whistleblower law; and
- Wage and hour laws which generally require that employees receive overtime pay for work in excess of 40 hours in a workweek and prohibit the termination of employment in retaliation for filing a claim for overtime compensation.
Were you wrongfully discharged or wrongfully terminated? Where a statute confers a right that is in furtherance of a public policy, some courts have generally found that an employer may not use threaten that right by using the at-will employment doctrine as a device for interfering with the statutory right. In these instances where an employer has violated an important public policy some courts have determined that a remedy exists for the tort of wrongful discharge.
Does the constituion provide you employment rights? The U.S. Constitution, including amendments thereto, provide “due process,” “equal protection” and “freedom from unreasonable searches and seizures” to federal and state employees. State constitutions may provide additional protections to employees of both private employers and governmental employers.
Are you a public employee? As a result of the civil service laws in most states, employees of state government are generally protected from termination except where termination is for “good cause.”
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