At-Will Employment and Exceptions to the At-Will Doctrine

Once it is established that there is an employment relationship, the legal rights of the employee and the legal obligations of the employer will first depend on how the relationship was established and to what degree its details are formalized.

First, legally the employment relationship is a contractual relationship. This is true despite the fact that in the majority of employment relationships there is no written agreement of any kind between the parties! Where there is no legal, written agreement, the relationship between the employer and the employee is presumed to be at-will employment. At will-employment is a relationship in which there is no legal obligation for either party to stay in the relationship; either party may terminate the relationship at any time, and for any reason, so long as the reason for the termination is not illegal.

Another way to summarize the employment-at-will doctrine is that it allows an employer to discharge an employee for "good reasons, bad reasons, or no reasons at all;" provided that the reason for the discharge does not violate the law. Therefore, there is no requirement that the discharge of an at-will employee be fair, for "just cause," or morally justifiable. An employer could legally discharge a worker over 40 years old, despite the ADEA, just because the employer did not like the color of the employee's hair, so long as the real reason for the discharge was that and not the employee's age.

In the past, most at-will employees had no significant right to their jobs. Today, not only are there numerous anti-discrimination statutes that limit the right of employers to terminate employment relationships, but even in situation where there are no statutory limits to an employer's power to discharge, employees and their attorneys are constantly pressuring the courts to recognize exceptions to the at-will doctrine. These types of challenges are based on the notion that the discharges were unfair or not for proper cause. These challenges have been successful.

Exceptions to the At-Will Doctrine: Wrongful Discharge

Although most employees today are technically "at-will," employers are significantly restrained by federal and state anti-discrimination laws in discharging employees in protected class. Protected class employees are simply types of employees who are legally protected from employment related discrimination under particular statutes (discrimination or harrassment based on race, color, religion, national origin and sex).

Example: Employees who are at least 40 years old are protected by the Age Discrimination in Employment ACT (ADEA) from being discriminated because of their age; African Americans are protected by Title VII of the Civil Rights Act of 1964 from workplace discrimination based on their race.

Technically, the anti-discrimination laws do not eliminate employment at-will with respect to employees in protected classes. However, the anti-discrimination laws make it much harder for an employee to fire an employee in a protected class for a "bad (but not illegal) reason or no reason" than an employee who is not in a protected class. Why? If the discharged employee files a claim under an anti-discrimination law, judges and juries often view discharges that don't appear to be justified by good cause as likely having been motivated by the employee's protected class, even if the employer denies it.

If an at-will employee is not in a protected class, does he or she have any protections against unfair discharges? Probably, but that depends on the courts in the state in which the employee works have created or accepted exceptions to the employment at-will doctrine.

If an employee is discharged under circumstance that the courts in the employee's state consider to be an exception to the at-will doctrine, the employee may be able to recover damages from the employer in a wrongful-discharge lawsuit. Wrongful discharge is a common-law legal claim; that is, it is a claim based on law created by court decisions, not state or federal statutes, that the employer did not have the legal right to discharge a particular employee in a particular situation. There are four general categories of exceptions that are available in some (not all) states:

1. discharge in violation of public policy
2. discharge in violation of an implied covenant of good faith and fair dealing
3. discharge in breach of an implied contract
4. tortious discharge