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At-Will Employment: Work It! Part I

Have you ever heard someone say “They got fired for no reason at all! That’s illegal!” or “I work in a Right to Work state. I can quit any time if I want!” For the former, someone may respond, “Well, that wouldn’t happen if (insert state here) wasn’t an At-Will state.” For the latter, someone may think “That sounds wrong but I am not sure why.”

At-Will Employment and Right to Work are two important yet distinct concepts or doctrines. In this entry, I’ll review key differences in my own words, based on my understanding, and in no way with any sort of legal authority.

The “Impact of State Employment Policies on Job Growth” publication by the US Chamber of Commerce (page 24), has a really great recap on what states are covered by the At-Will Doctrine and a good definition of what it is: “All states except Montana generally follow the employment-at will doctrine, meaning in the absence of a written contract, either the employer or the employee may terminate the employment relationship at any time and without cause. (emphasis mine).”

In layperson’s terms, I understand this to mean that unless I have a written contract in the other 49 states, I can quit without notice for any reason or no reason at all and my employer can fire me at any time with or without any reason. There are of course exceptions on the employer side which includes firing someone for a covered, illegal discriminatory reason or as covered, illegal retaliation.

Right to Work is very often a misunderstood term. I appreciate the National Conference of State Legislatures’ very simple definition: “Under right-to-work laws, states have the authority to determine whether workers can be required to join a labor union to get or keep a job. Currently, 27 states and Guam have given workers a choice when it comes to union membership. Labor unions still operate in those states, but workers cannot be compelled to become members as a requirement of their job.”

In layperson’s terms, I understand this to mean that in a Right to Work state, I cannot be forced to join a union in order to work in an organization. I can choose to join or not join in those states and still be able to work at an organization that has a union.

Since this seems to me pretty cut and dry, I will focus on “acceptable” reasons to fire someone and “not acceptable” reasons to fire someone based on business centered reasons for Part I (At-Will Employment). For Part II (Right to Work), I will focus on what not to do to interfere with worker rights under the National Labor Relations Act (NLRA).

What are some acceptable reasons to fire someone?

Some examples of generally acceptable reasons for firing someone include but are not limited to:

  • Attendance Issues – Unplanned absences, unplanned lateness, and unplanned leaving early.

  • Inability to Consistently Perform Essential Functions of the Job – After being properly trained, not being able to do the job to a satisfactory levels regardless of time and effort. Making a detrimental error.

  • Unwillingness to Consistently Perform Essential Functions of the Job – Person has previously and consistently met expectations. Employee has developed behaviors and patterns which they refuse to correct and it’s affecting their work.

  • Failure to Follow a (Reasonable) Directive – Employee is asked to follow a reasonable process, procedure, rule, or request and they refuse.

  • Interpersonal Conflicts or Behaviors not in Line with the Culture – Not being able to get along with others when most work well together. Odd or disruptive behaviors.

What are some unacceptable reasons to fire someone?

Some examples of generally unacceptable reasons for firing someone include but are not limited to:

  • Attendance Issues –to avoid providing protected leave such as FMLA, leave based on ADA accommodation, or time off due to a religious accommodation, if a covered employer.

  • Inability to Consistently Perform Essential Functions of the Job – if requested to avoid providing other types of ADA Accommodations, if a covered employer. The requirement is to engage in an interactive discussion and determine if the request is reasonable.

  • Failure to Follow an Unreasonable Directive or Retaliation for Bringing up Certain Concerns – Under OSHA, there is a Workers' Right to Refuse Dangerous Work. Certain employees (federal workers as an example) have “whistleblower” protections. Protections also vary by states.

  • Interpersonal Conflicts or Behaviors not in Line with the Culture – As a pretext (something that is put forward to conceal a true purpose or object; an ostensible reason; excuse) for wanting to fire someone due to a protected category. For example, saying someone is “not a good fit” when the real reason for the termination is because they follow X religion and people are uncomfortable with the way the person dresses due to their religion.

Termination Reasons

Even though under At-Will Employment you don’t have to provide a reason for ending someone’s employment, it is best practice to have an articulated reason for the employment action. Usually, there is a business reason behind the action.

Ideally, performance management practices are followed leading up to the termination. However, even if that is not the case, it is usually best to give the person the real reason they are being let go.

For example, let’s say someone is a very nice person and a sales job is just not for them. They have not been meeting goals no matter how hard they try. They truly do try, but they can’t seem to close a sale and it’s affecting the bottom line. They’ve never been “written up” because the manager wanted to give them more time and the employee tries hard and is a nice person.

During the termination meeting, it’s acceptable to say: “Derrick, this is not working out. I know you’ve tried your best but this role is not a good match. You’ve not met our targets of XYZ since you were hired and it has affected our growth goals. Because of that, your employment is terminated effective immediately.”

It’s going to sting no matter what. If we don’t provide a reason, the parting employee is left with questions and will attempt to fill in the blanks. That is human nature. In addition, some states require a separation notice (either their own template or a statement from the employer), and unemployment offices will ask for the reason for separation when the former employee files a claim. Sharing that information with the employee may help minimize their questions on the why behind the action.

It is rare a business leader gets up one morning and thinks “I’m hankering to see someone lose their livelihood. I think I’ll fire some rando today!” Most separations have a reason behind them, even when not properly, succinctly, or at all articulated in the termination meeting. We need to keep in mind that while in all but one state, a reason does not need to be provided, it is a good practice to do so.

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Renee Shiraishi
Renee Shiraishi
Oct 26, 2020

One caveat I would share is that although an employee can quit without notice, in an at-will state, the employer may have a policy that "penalizes" an employee for not giving notice. For example, the employer may withhold accrued vacation if the employee doesn't provide 2 weeks notice, in states where that is permissible. Another example is that an employer may have a policy that an employee isn't eligible for rehire if he/she quits without notice.

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