One of the questions I get all of the time during consultations is, “what does it mean to be an ‘at will’ employee?” If you have this question, then you are in luck because that is what this week’s blog is all about!
First, “at will” employment is the default employment relationship in the state of Texas. That means if you do not have a contract or agreement defining some other type of employment relationship with your company, then you are an “at will” employee. By far, most employees are “at will” employees.
The standard definition of “at will” employment that you will get from your boss or from HR is that it means an employee can be hired or fired for any or no reason at all. The reason for termination can be fair, unfair, just, unjust, whimsical, arbitrary, stupid, mean, petty, or silly. When talking about “at will” employment during consultations, I often use the following example: if you are an “at will” employee, then your boss can fire you because they had a dream last night that you are actually a giant bunny rabbit from outer space hellbent on taking over Earth and that is just not the kind of being the company wants to employ.
There are other types of employment relationships such as a “for cause” relationship. With “for cause” employment, the employer can only fire the employee for cause as defined somewhere, usually in the employment agreement or contract. So to use the space bunny example, again. If you are a “for cause” employee, you cannot be fired for being a giant space bunny unless that is listed as good cause for termination in your employment agreement or contract.
All of the above is correct, but it is incomplete. You see, your boss and HR forgot to tell you the most important part. An “at will” employee can be hired or fired for any reason or no reason at all as long as it doesn’t violate the law. And that is where employment laws come in. That is why even “at will” employees cannot be fired or not hired based on their sex, race, religion, disability, national origin, color, or age. So going back one more time to our space bunny example. Sure, your boss can fire you because they dreamed that you are a giant bunny rabbit from outer space, but not if the reason you are being fired is because they dreamed you are a female or black or Catholic bunny rabbit from outer space.
It’s not just unlawful discrimination that modifies the “at will” employment relationship. An employer cannot use “at will” employment as a shield to engage in retaliation. The laws prohibit employers from taking adverse action against employees for reporting discrimination or, depending on the nature of your employer, reporting violations of laws, rules, and regulations.
And that’s where plaintiff’s side employment lawyers like myself and the other attorneys at my firm come in. Every day we represent “at will” employees who have been fired, demoted, transferred, not promoted, or not hired because of a protected characteristic like sex, race, religion, disability, national origin, color, or age.
If you think you have been fired because of a protected class you are in or for reporting discrimination against yourself or others based on a protected class, you should talk to an attorney. If you think you have been subjected to an adverse action because you engaged in whistleblowing, you should contact a plaintiff’s employment attorney. Contrary to what your boss and HR want you to believe, “at will” employment does not allow your employer to do whatever it wants for any reason or no reason at all. Your employer must still follow the law and it should be held accountable, when it doesn’t.