In my experience, there are a lot of misunderstandings about what “at-will” employment means. Most employees assume that it is to their detriment and a bad thing. I have even heard lawyers describe a certain state’s at-will status as being employer-friendly, as though other states are more employee-friendly. Boy are they surprised when I tell them that at-will employment is the assumed nature of employment in all states except Montana (and even there, it’s not exactly abolished). They are also surprised when I tell them that at-will doesn’t really mean at-will in a lot of circumstances (more on that below).
I love at-will employment. And it’s not because I love employers (although I do). I also love employees (I couldn’t be successful without them). I love at-will employment because it is the embodiment of freedom of association.
Of course, at-will protects employers from having to tolerate working with — and paying — someone they don’t like. Since employers are people too, I’m in favor of not forcing them to associate with someone whom they would otherwise choose to not be around (much less give money to).
But I see it as also good for employees. It wasn’t that long ago that people could be forced to work against their will. What was indentured servitude, for example? It was a seven-year long non-at-will employment contract. You see, contracts cut both ways. If an employee quit before his contracted time, he could be held for breach or forced to continue or pay damages. We only see that concept now in military enlistments — and having been in the military myself, I can tell you that it’s not something that the enlistees think is for their benefit. If an enlistee “quits” that is called desertion and he or she is thrown in jail.
So at-will employment protects against contractual servitude on both sides. Everyone works with each other as long as they want, and not a minute longer. Kind of like a break up, once one side of the employer/employee relationship isn’t feeling it anymore, it is over for both.
So the history behind this is of course a lot more complicated than my little freedom of labor speech. In non-contractual employment relationships, employees would sometimes sue because they were promised an annual wage and then were fired before it was earned. This was a problem if they had relocated for the job or turned down other seasonal work. But since there was no written contract, many courts decided that the burden of proof was on the employee to show that the termination was a breach of contract. That is still the default rule today.
Pro-labor forces have criticized at-will employment, too. Union contracts often only allow for good cause termination. In these arrangements, the employment contract is one-sided. The employer may not fire for any reason, but the employee may quit for any reason.
Economists argue that at-will makes the U.S. labor force stronger than European or Australian labor markets. The science on this is not well-settled and lots of people have a lot of passionate and biased opinions.
But I like simple. I like employers and employees to be equally free to associate with whomever they want in the work environment. So I love at-will employment. That being said, there are exceptions — the most notable being all the discrimination laws. So at-will may be the rule. But that rule has a big, giant asterisk.
In California, there are at least 40 bases for prohibited discrimination. Other states’ lists are not much shorter. This video touches on the major ones. Click to go to the video and learn a little more.
What does “at-will” employment mean? It means that employers and employees work with each other only so long as both parties consent. An employer can choose anytime to fire an employee. And an employee can choose to quit whenever they want, too. Despite popular misconceptions, “at-will” employment developed to free employees from employment contracts where they were forced to pay damages to the employer if they quit early. It is unconstitutional to make people work for other people against their will. There are also exceptions to at-will employment which make it illegal for most employers to “wrongfully terminate” an employee based on things like race, gender, age, pregnancy, religion, sexual orientation or disabilities, or in retaliation for whistle-blowing. Does your business need employment law help? Visit us at bellatrixlaw.com to apply for our Employer Protection services.
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