Published on August 22nd, 2009 by Alan L Sklover
Question: I live in upstate New York, and I am what they call an “at will” employee. I have worked for my employer for a couple of years. However, now my employer is demanding I (and my co-workers) sign a paper that says I promise to stay “available” to work for the company at least 12 months. They say it isn’t a “contract,” but it’s in writing, and I have to sign it, so it seems like a contract to me.
There is no mention in the paper of any guarantee on the part of the employer to keep me employed for those 12 months, only that I will be available to them. That is, they want to keep the freedom to let people go of an “at will” agreement, but they want to deny that same freedom of any employee to quit when he wants to.
Seems incredibly one-sided. Can they do that? I’ve been trying to find information on what I would call “the employee’s right to quit,” and under what circumstances we can be required to give up that right. I have no intention of quitting, but sometimes it does cross my mind. Thanks for any insight you can give me!
Minerva, New York
Answer: Your question is a really good one. Hope you don’t mind, but I sometimes find it easier to explain things one sentence at a time:
A. In an “at will” employment relation, either the employer or the employee can end the employment relation at any time, for any legal reason.
B. However, even in an “at will” employment relation, the employer and the employee are free to “bargain” with each other to limit one of both of their freedoms.
C. Just as an example, an employer can, in a “bargain” limit its own freedom to fire an employee at any time by saying, “I promise to give you at least two weeks notice of firing, if you give me at least two weeks notice of your resigning.” That would be a fair “bargain,” and the law would enforce it.
D. As another example, an employee could “bargain” this way, “I agree to stay on the job until the busy season is over, if you give me a bonus of $100 to do so.” That, too, would be a fair “bargain,” and the courts would enforce it.
E. In these and other ways, employees and employers are free to “bargain” to limit each other’s freedom to end the employment relation.
F. Let’s take it one step further: An employer can say this: “If you agree to stay 12 months, I will agree not to fire you tomorrow.” What is the bargain there? It is the agreement not to fire you today or tomorrow. “Hey,” you might say, “What’s so fair about that?” Well, the law says that you are old enough and smart enough to make your own bargains, and determine what’s fair and not fair for yourself. So long as there are two “sides” to the “bargain,” the law will enforce it.
G. I must say, though, that many judges would say, “That promise is not, to me, sufficient ‘consideration’ from the employer to the employee to make the ‘bargain’ enforceable.”
H. That is probably what your “document” says: “Promise us 12 months, and we will not fire you tomorrow.” The words are probably something like this: “In consideration of your continued employment by the company, you promise not to leave for 12 months.”
I. So, you are free to sign that document, or not. And if you sign it, it could be enforceable.
J. But wait!! (as they say in those television commercials where they sell you an all-in-one knife): Can the employer REALLY ENFORCE the agreement?
K. Our Constitutional prohibition on slavery makes it impossible in our society to force anyone to work.
L. Could your employer sue you if you left before 12 months? Well, sure, but it would have to prove that it suffered damages as a direct result of your leaving. That’s a pretty hard thing to do, especially when there are many people seeking jobs.
M. Could the employer stop you from working elsewhere for those 12 months? Possibly, but it’s hard to believe they would spend the many thousands of dollars to go to court to do so. And very few judges like to keep people out of work, because there are already enough people on welfare and unemployment.
N. In fact, even those employees with rock-solid employment agreements – two-sided, fair and all – are rarely, if ever, sued if they leave early. In fact, it’s almost unheard of.
O. So, in this way, employees almost always have a “Right to Quit” whenever they want, regardless of what they signed.
P. It’s just a little complicated, and employers do not want you to know your rights.
Q. Welcome to SkloverWorkingWisdom.
Once again, Great Question. I think your question may have helped thousands of people around the world.
Best, Al Sklover
Need to Leave, But Want to Preserve Rights to Unemployment and Severance? Model “Involuntary Resignation” Letter “What to Say / How to Say It.™” Just [click here.]
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