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October 10, 2016
The default presumption for an employer/employee relationship across the United States is “at-will”. What does “at-will” mean? In an at-will relationship, employment can be terminated at any time and for any reason. This is a two-way street. While the employer can fire an employee at any time, so too can an employee resign his or her employment whenever they choose, without providing any notice or reason. At-will employment can be controversial. On one hand, employees are free to take up employment and leave when they prefer. Employers can dismiss their workers as and how business requires. Yet in a relationship in which only one party (the employer) has the upper hand- the consequences for a vulnerable employee left without a salary or security can be devastating. It is contrary to our sense of decency that careers can simply be taken away on a whim.
With the exception of Montana, all employment across the United States is at-will. The United States is unusual in comparison to other countries around the world where employers are permitted to dismiss workers only for good cause, such as poor job performance or misconduct. When employment is considered “at-will,” an employee can walk out at any time. The at-will presumption is supported by reasons that cite the requirement to respect freedom of contract over job security. Yet, employers can also modify job terms without notice, and without any legal consequences whatsoever. This applies to wages, vacation periods, and benefits. In its purest form, at-will employment can leave workers extremely vulnerable to the whims of their employer.
Some have attempted, wtih limited success, to advocate for a public policy exception to the at-will employment doctrine. While the public policy exemption to at-will employment is important (as an employer cannot dismiss a worker if to do so would violate state public policy or a state or federal statute), eight states, including Georgia, do not recognize the exception. The other states are Alabama, Louisiana, Maine, Nebraska, New York, Rhode Island, and Florida.
Employers often seek to hide behind the at-will employment law to discriminate against their employees. This can include discrimination based on race, sex, religion, age disability, or national origin. Employers can also seek to use the at-will doctrine to avoid retaining employees during their use of Family and Medical Leave or when they challenge an employer’s decision to deny them proper compensation under the Fair Labor Standards Act. In such cases, employers can be sued for discrimination, which is the most important exception to the at-will doctrine. While an employer is free to fire any employee for almost any reason, that reason cannot include discrimination.