“At-will” employment status is commonly understood as an employer’s prerogative to abruptly terminate a worker for any reason at all. Not so fast.

Originally adopted during the 1800s Industrial Revolution to provide greater workforce mobility, “at-will” did mean that either employer or employee could terminate or quit the relationship at any time, with or without advance notice and with or without a reason.

However, Congress, state legislatures and the courts have since restricted the concept to include only terminations for reasons not otherwise forbidden. The list of prohibited reasons has steadily grown over the past several generations.

In 1935, for instance, the National Labor Relations Act banned termination based on union-related activities. Also spurred by the Depression, Labor was also able to win contract provisions requiring employers to establish a lawful “just cause” for firing union members.

The Civil Rights Act of 1964 further hindered employer rights to terminate people for classifications irrelevant to job qualifications or performance, initially race, color, sex, national origin or religion.

Depending on an employer’s state or even municipality and the size of its payroll, these so-called “protected classifications” may now exceed 15 or more, to name a few: disability (physical or mental), age (40 or older), sexual orientation, marital status, medical condition, military status, and traits associated with a particular race, such as hair texture and style.

Thus, even if there is a legitimate performance-based reason to terminate a failing employee, management must proceed deliberately if any of these forbidden factors might also be in play.

Best practices include:

• written employment applications and employment agreements that clearly lay out the at-will status of employees;
• workplace policies or a handbook reiterating at-will while clearly prohibiting management decisions based on any protected classification;
• training and education for executives, managers, supervisors, and human resources personnel on the limits of at-will employment as imposed by protected classifications; and
• consultation with an experienced management-side employment attorney on planned terminations where a protected classification issue might arise.

See also:

• Don’t Kill At-Will Employment: Maximize Ability to Manage By Written At Will Employment Agreements
• “At Will” Employment: A Three-Minute History

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Helena Kobrin
Tim Bowles
November 20, 2020