Employment At Will, And Three General Exceptions

On behalf of Peterson, Berk & Cross, S.C.

This post describes the doctrine of “employment at will,” and exceptions to the doctrine. (Please note this post does not provide legal advice, and that different locations/States and their laws vary in how employment-at-will is interpreted).

Meaning of Employment at Will

Employment at will, as described in Wisconsin law, means an employer may fire an employee “for good cause, for no cause, or even for cause morally wrong, without (the employer) being thereby guilty of legal wrong.” Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 567 (WI SC 1983).

Most States in the U.S. are at-will States, with Montana – which requires terminations be for “cause”- being the notable exception.

When employment is at-will, a job termination is usually legal, including most terminations that are done for bad or unfair reasons.

Exceptions to Employment at Will

There are notable exceptions to employment-at-will: subsets (minorities) of unfair reasons for termination that are both unfair and illegal, and thus could give rise to legal claims. I lump the exceptions into three categories.

(1) Contract: If an employee has a contract with the employer, that contract may require legitimate “cause” for a job termination to occur. For example, it is common for union-employer contracts (collective bargaining agreements) to define “cause” in specific terms that say an employee cannot be fired unless he or she has specific types of performance or conduct problems. These contractual terms modify employment from employment at will into for-cause. If the employer fires the employee without showing it was for “cause” as defined in the contract, then the termination could give rise to a legal action.

(2) Discrimination: Discrimination laws (and similar laws, like FMLA law or certain States’ anti-bullying laws) provide that an employer cannot fire an employee based on certain types of characteristics: race, religion, age, sex, disability, the fact the employee took a protected medical leave, etc. Depending where you live, there are usually two, and sometimes more, bodies of discrimination laws that apply to you. Federal discrimination law has its own laundry-list of protected characteristics for which an employer cannot discriminate against you, harass you or terminate your employment. States have their own laundry lists (see Wisconsin’s, for example) which often duplicate, and add additional protected classes to, the Federal list. While the laundry lists are long, they do NOT pertain to most of the “bad” reasons for which employers fire employees. For example, an unfair personality conflict, or unfair performance expectations, are not discriminatory unless they were motivated by discrimination based on a protected characteristic (e.g. disability). It is common for fired employees to feel “discriminated” against, before they are aware of what discrimination truly is, and what the protected classes are.

(3) Whistle-blowing: I use the term “whistle-blowing” loosely, to refer to situations where it is unlawful for an employer to fire an employee because the employee complained (or “blew the whistle”) about illegal conduct by the employer. There are diverse statutes and laws that apply to specific forms of employee whistle-blowing/complaints: complaints about wage law violations, complaints about discrimination, complaints about defrauding the government, etc. There are also more global, catch-all legal claims (e.g. wrongful discharge law) that could encompass a range of whistle-blowing activities. Without going into detail, the bottom line is this: if an employee is fired in retaliation for complaining about illegal conduct by the employer, a whistleblower-type legal claim may exist, and the termination could be challenged in a legal proceeding. Whistle-blowing, like discrimination and contractual rights, is another type of exception to employment-at-will.