The United States has many federal and state employment laws ranging from regulation of benefits to employee discrimination. But, just how well do these protect job security and protect people from being fired without merit?

My husbands job was recently threatened, as his superior simply does not like him as a person. He hasn’t had one write-up for anything- work ethic, absences, performance, etc… So, when he told me about this threat to his job security, my immediate reaction was that an employer can’t just fire someone without just cause. That would be a wrongful termination, right?  I assumed that one couldn’t be fired because of something as petty as personality difference when they can‘t be fired just because they are a certain sex or age.  So, I get on the internet to find out exactly what constitutes a wrongful termination. I found out that I have been a naïve idiot about job security in the United States.

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Every state in the U.S has adopted “at -will employment” legal concepts. At -will employment essentially means that an employer has the right to terminate an employee without reason, for any reason, and even for an unfair or unethical reason… just as the employee can leave a job the same way. As long as the reason is legal, the employer can fire at-will. This concept is supposed to put employers and employees on an equal ground related to rights.

States recognize certain exceptions in federal and state law to at-will employment to different degrees. While some may recognize all of the existing exceptions others may just recognize federal law exceptions, such as discrimination law. However, an employer must violate either the state exceptions or federal law exceptions for a firing to be considered wrongful termination.

Most Common State and Federal Exceptions:

  • An employee/employer contract or union contract specifically defining the employment termination policy as other than at-will.
  • Violation of federal discrimination laws which prohibit an employee from being fired solely based on- age, creed, sex, disability, race, religion, national origin, military duty, and genetics.  State law may add additional categories such as marital status, sexual orientation, etc..
  • Violation of Public policy. Applies to some degree in 42 states. This exception involves employees fired for whistle blowing  or refusing to perform an illegal job duty. The employer can not fire in retaliation for an employee reporting an illegal activity either. It also involves terminations that undermine the interests of the public for example, a firing because an employee filed for worker‘s compensation. 
  • Breach of implied contract applies to some degree in 37 states. This would involve verbal or written statements by an employer that are implied as employment agreements. An example would be an employee handbook section for termination that contradicts at-will employment policies.
  • Breach of covenant of good faith and fair dealings. Applies to some degree in 11 states. This rare adoption by a state requires that an employer treat employees fairly, honestly, ethically, and at least show “good cause” for termination. It protects the employee from being fired because they are due for a promotion or raise and from having an employer use false accusations to justify the termination.
  • Violation of federal medical leave. An employee can not be fired for taking a family or medical leave.

There are a few other state by state exceptions. However, the above are the most often used in wrongful termination suits. Again, aside from the federal laws, state exceptions do not apply in all states or to the same degree in states that do recognize them. So, figuring out if you have a wrongful termination suit and even filing a wrongful termination suit is a tedious and complex process to say the least. 

I find it absolutely amazing that society and government officials can be rational enough to realize that it is unfair, unethical, and not just to fire someone solely because they are black, elderly, disabled, pregnant, etc….but, have failed to make it impossible for someone to be fired for petty reasons like: a quirky personality, they have blonde hair, they have a pimple on their nose, they drink Coke instead of Pepsi, they have an irritating laugh, etc..  An employer should be free to hire whomever they feel is best qualified and fitted for a position, but once they hire a person, they should have a just cause to fire them.

Proponents of at- will employment argue that it provides a fairness to an employee being able to leave at- will. However, the answers to two questions are proof that fairness is non-existent under at-will employment- How many unfilled jobs are employers struggling to fill? Now, how many unemployed Americans are struggling to find a job? Aside from some very obscure profession, I have never heard of an employer going out of business because they can not find someone to fill a job left vacant by an employee leaving. However, there are millions of employees fired without cause who were depending on job security to live.

Since the birth of my handicapped child, I have advocated relentlessly for fair treatment of handicapped persons. Now, I can add doing away with at-will employment and enacting actual fair laws to the books to my list of causes to harass government officials about.