At-Will Employment Won’t Help: How to Protect Yourself When Your Job Is In Jeopardy
While the economy seems to be improving and the job market seems to be tightening, no employee is ever 100 percent secure in their job — especially not in strong employment-at-will jurisdictions such as New York, New Jersey, Connecticut, and Pennsylvania.
To quote economist and attorney Charles J. Muhl, “The employment-at-will doctrine avows that, when an employee does not have a written employment contract and the term of employment is of indefinite duration, the employer can terminate the employee for good cause, bad cause, or no cause at all.”
In other words: Unless you have an actual or implied employment contract, which typically has to be in writing, you can be fired from your job for any reason or for no reason. This is, indeed, a precarious position to be in as an employee. Thus, in an employment-at-will jurisdiction, the only protection you have under the law is from being fired for an unlawful reason, i.e., a reason prohibited by statute.
Before we focus on what that protection means, let’s address certain exceptions to the employment-at-will doctrine:
Exception No. 1: Employment Under Contract
If you have a written employment agreement that states the terms and conditions of your employment, including time, place, duration, and rate of pay, then you are entitled to have that contract honored and can sue your employer for breach of contract if you are fired in a manner that violates your agreement. Note that employment contracts typically contain a “termination for cause” provision that states you can only be fired for good cause — not for any reason or no reason, as the employment-at-will doctrine allows.
Exception No. 2: Unionized Employment
If you are a member of organized labor and belong to a labor union that has a collective bargaining agreement (CBA) with your employer, you cannot be fired without resort to a grievance process that allows you to challenge your termination and the reasons behind it.
Exception No. 3: Public Employment
If you work in the public sector you are likely protected by a CBA or federal, state, or local civil service laws that limit your employer’s ability to terminate your employment without just cause and due process.
Exception No. 4: Common Law Exceptions
Courts in various jurisdictions have recognized three basic exceptions to the employment-at-will doctrine: (a) termination for a reason that violates a public policy; (b) terminations after an implied contract for employment has been established through an employer’s representation of continued employment to an employee, in the form of either oral assurances to the employee or reasonable expectations created in the employee by handbooks, policies, or other written statements issued by the employer; or (c) an implied covenant of good faith and fair dealing read into the employment relationship, meaning the termination must be for good cause and cannot be made in bad faith or with intentional malice.
While New Jersey, Connecticut, and Pennsylvania recognize some public policy exception to the employment-at-will doctrine (New York does not) — and New York, New Jersey, and Connecticut will enforce an implied employment contract under certain circumstances (Pennsylvania will not) — none of these four jurisdictions will read an implied covenant of good faith and fair dealing into the at-will employment relationship.
In short, there is no such thing as “wrongful termination” in an employment-at-will jurisdiction. If you work in New York, New Jersey, Connecticut, or Pennsylvania and you’re not under some kind of contract — public or private, union or not, actual or implied — then you can be fired for any reason, or for no reason, as long as you are not fired for a reason prohibited by statute.
What Can You Do to Protect Yourself as an At-Will Employee?
- Be aware of your workplace environment.
- Know your statutory rights.
- Document your concerns.
First, make sure you are, indeed, an at-will employee who is not governed by some sort of contractual or quasicontractual relationship.
Second, determine whether you belong to any protected category the law prohibits as a reason for termination. These protected categories generally pertain to some immutable characteristic you possess, which the law disallows as a reason for an “adverse employment action” — i.e., some detrimental action taken against you by your employer. Taking New York as an example, you are protected through a combination of federal, state, and local laws from being treated badly on the job because of your age, criminal conviction, disability, gender, gender identity, ethnicity, leave status, national origin, pregnancy, race, sex, or sexual orientation.
Third, examine if and how you are being disadvantaged in your workplace and whether you are being treated differently in a negative way — i.e., being discriminated against — because of your membership in one or more of these protected categories.
Fourth, if you believe you are the victim of discrimination, immediately raise your concerns in writing with the human resources department of your employer as soon as possible. Expressly state that you believe you are being discriminated against for specific reasons — e.g., “I believe I am the victim of race discrimination because I am African-American and was disciplined for being late to work by my Caucasian supervisor while several of my similarly situated Caucasian colleagues were not.” The reason this fourth element is so important is because it can become your ticket out of employment-at-will jeopardy.
Fifth, cloak yourself in the anti-retaliation provisions of the law. All of the anti-discrimination laws mentioned above that protect you against discrimination based on some immutable characteristic also protect you from retaliation by your employer because you complained about such discrimination in good faith. This means that if you have a reasonable belief you are being singled out and treated badly at work because of your age, disability, gender, race, etc., and you complain about it in writing to your human resources department, your job will likely be protected for the next 3-6 months.
The law presumes any adverse employment action — such as firing — taken by an employer against an employee shortly after the employee complained of discrimination is retaliatory, even if the underlying complaint of discrimination is ultimately proven to be unfounded. Put another way, if there is a temporal nexus between the protected activity — i.e., complaining in good faith about discrimination — and the adverse employment action, then retaliation is presumed under the law and you can sue your employer. Because your employer knows this, once you register a good faith complaint of discrimination, you are unlikely to be fired while an investigation is conducted and until a reasonable period of time has lapsed – i.e., anywhere from three to six months. Two obvious exceptions to this general rule are if your complaint of discrimination is frivolous or falsified or if you commit an offense on the job which can form a reasonable basis for your termination after you complain of discrimination.
The best course of action for an employee at risk of being fired is to become keenly aware of their workplace environment, educated about the statutory protections involved, and vigilant in appropriately documenting any concerns of discrimination or retaliation. Given these complex and arduous tasks, not to mention the power imbalance inherent in the employment relationship, the best thing to do if you believe your job is in jeopardy is to contact an experienced employment lawyer who can help you navigate the minefield of employment at will.
Parisis G. (Gerry) Filippatos, a seasoned and versatile New York City employment discrimination attorney, is a partner at Phillips & Associates.
This article is for informational purposes only and does not constitute legal advice.