Thanks to The Apprentice, we are all walking around saying, “You’re fired!” on a regular basis. But can an organization send you packing for no apparent reason? Is any contract implied when you take a job?
In 49 states, workers are considered “at will” employees. The term means none of us has a right to a job; we work at the whim of our employer. Our jobs can be terminated for any reason or for no reason whatsoever.
Those who actually sign a contract that requires a reason for termination are classified as “just cause” employees. These workers can be dismissed only for a good reason, such as poor performance, failure to meet company policies, inadequate performance compared with the job description, or fraud or other improper actions.
Another job classification is “independent contractor.” This person is assigned a task but gets to choose the means by which that task is to be completed. The terms and conditions of the relationship between the independent contractor and the organization retaining his services are determined by a contract between the parties that, to prevent problems with the Internal Revenue Service, should always be in writing.
Judges generally will not intervene to protect an at-will ex-employee from any alleged unfair treatment. Nonetheless, many courts now are looking at the relationship between the employer and the at-will employee to determine whether there is an implied contract created by working conditions, policy manuals and the like.
While many courts have wrestled with this concept, most have decided not to allow a conversion of an at-will situation into a wrongful-discharge case.
Throughout the years, judges also have been asked to evaluate whether public policy has been violated by termination of an at-will employee. For example, has the employee been fired for obeying the law or refusing to violate the law? Of course, if the employee can prove she was terminated in retaliation because she blew the whistle on wrongdoing at the organization, she refused to commit a crime on behalf of the employer, or for a similarly sinister reason, the courts will protect her rights.
In order to turn an at-will situation into one with an implied contract, the courts will look for a condition that arises out of the policy manual, which provides for such things as adequate notice before termination or a due-process approach to contesting evaluations. They also may study the initial responsibilities and terms laid out in any oral promises of employment or a written employment letter.
THE WAY OF 'AT WILL'
While the specifics of the laws vary from state to state, there are some basics. If you are working “at will”:
" You can be terminated or you can quit, with or without cause or notice.
" You cannot be terminated for an unlawful reason, i.e., based on age, race, religion or veteran status. Employment at will is not a license to discriminate.
" You cannot be terminated for exercising rights afforded employees by federal or state law.
" You might be subject to strict after-termination requirements, such as not being allowed to compete directly with your former employer or, when the relationship is severed, having to waive ownership of any intellectual property created while on that job.
Not surprisingly, those who, by virtue of their contract, can only be terminated for cause generally are in a much better position.