“The greatest pleasure in life is doing
what other people say you cannot do.” 

 - Walter Bagehot

ACTUAL CASE HISTORY*: We hear it, see it, read it and are told it nearly every day: “At will employment means that you can be fired at any time for any reason.” You see it in Employee Handbooks. You hear it in discussions and negotiations. You even read it in Court decisions.

It is a misunderstanding, a falsehood, a grave error, and a distinct disservice to everyone. It’s just not true, and it’s just completely false. I call it “The Big ‘At Will’ Lie.”

What does “At Will” really mean? “At will employment means that an employee can be fired (i) when the law says you can be fired, but not at other times, and (ii) for the reasons the law says you can be fired, and not for reasons the law deems improper.”

Those who know the truth understand that the so-called “At Will” doctrine of employment is way overblown. It has many, many exceptions, limitations and conditions, and more “holes” are created in this outdated concept each and every day by intelligent legislators, wise judges and fed-up juries.

LESSON TO LEARN: Don’t be fooled into believing “The Big ‘At Will’ Lie.”

Instead, understand that there are legally acceptable – as well as legally unacceptable – times to terminate an employee’s job. 

And understand, too, that there are legally acceptable – as well as legally unacceptable –  reasons to terminate an employee’s job.

Let me offer you an analogy: The law says, in effect, to people who want to get married, “There are certain rules you must follow if you want to get into the marital relation, including (a) the legal obligation to provide necessary support to your partner, in time of need, (b) the legal obligation to give at least some of your assets to your marital partner should you pass away, and (c) the legal obligation to provide alimony if you and your partner divorce,” among others. We call these many obligations the “domestic relations law.”

In like fashion, the law says, in effect, to people who want to be employers, “There are certain rules you must follow if you want to get into an employment relation, including (a) the legal obligation to pay at least a minimum hourly wage, (b) the legal obligation to provide a safe workplace, (c) the legal obligation to provide workers’ compensation insurance, and (d) the legal obligation to pay overtime to that employee, among others. So, you see, it is not so easy to be an employer; you can’t just ignore the many rules, regulations and laws that together constitute what is called “employment law,” even if the employment relation is “at will.” 

The law also places many other legal obligations on employers regarding (a) when, and (b) for what reasons, an employee’s job can be terminated. Yet, employers would rather you believe “The Big ‘At Will’ Lie,” that they can “terminate your employment at any time for any reason.”

The list below of “117 Reasons an ‘At Will’ Employee Cannot Be Fired” sets forth many of the limitations, conditions and exceptions to “At Will” employment. And this list is not exhaustive; many, many more limitations, conditions and exceptions exist. I’d estimate there are hundreds, if not thousands, of more reasons, too. They can be found in municipal ordinances, city statutes, agency regulations, decisions by Judges and verdicts of juries. And more will inevitably arise as time goes on based on common sense, fundamental fairness, and basic civil, human and moral rights.

Don’t believe “The Big ‘At Will’ Lie.” If you do, you’ll be deceived into believing you have no way to stand up for yourself if your employment is terminated. And that would be a shame, for standing up for yourself at work – and standing up for what is right at work – is far easier today than it has ever been before.

So, next time you or a close one are terminated at work, don’t accept “We can do anything we want because you are an ‘at will’ employee,” because it is just not true.

WHAT YOU CAN DO: Review this “brief ” list of “117 Reasons an ‘At Will’ Employee Cannot Be Fired.” And always remember that there exist many more exceptions, conditions and limitations of an employer’s ability to terminate an employee’s job.

1. If an employment agreement purports to create an “at will” employment relation, but provides the employee a certain “term” of employment.
2. If an agreement purports to create an “at will” employment relation, but provides that the employer will give the employee a certain “notice” before firing.
3. If an agreement purports to create an “at will” employment relation, but provides that the employer will permit the employee some kind of “hearing” before termination.
4. If an agreement purports to create an “at will” employment relation, but provides that the employer will provide the employee some kind of appeal process before termination.
5. If an employee was orally assured his or her job was not to be terminated, and he or she relied on such assurance(s).   
6. If the federal Worker Adjustment and Retraining Notification Act (“WARN”) is applicable, as it requires 60 days of notice before termination can be effective.
7. If an Employee Handbook purports to create an “at will” employment relation, but sets forth a policy of notice or hearing before termination.
8. In order to prevent an employee from attaining vested pension rights.  
9. Because an employee is of a certain race.
10. Because an employee has filed a complaint of alleged race discrimination.
11. Because an employee has participated in an investigation of alleged race discrimination.
12. Because an employee has filed a lawsuit alleging illegal race discrimination.
13. Based on the color of an employee’s skin.
14. Because an employee has filed a complaint of discrimination based on color of skin.
15. Because an employee participated in an investigation of alleged discrimination based on color.
16. Because an employee has filed a lawsuit alleging violation of laws prohibiting discrimination based on color.    
17. Because an employee is a certain gender.
18. Because an employee has filed a complaint of alleged gender discrimination.
19. Because an employee has participated in an investigation of alleged gender discrimination.
20. Because an employee has filed a lawsuit alleging illegal gender discrimination.     
21. Because of an employee’s age.
22. Because an employee has filed a complaint of alleged age discrimination.   
23. Because an employee has participated in an investigation of alleged age discrimination.
24. Because an employee has filed a lawsuit alleging illegal age discrimination.  
25. Because an employee has a disability.
26. Because an employee is perceived to have a disability.
27. Because an employee has filed a complaint of alleged disability discrimination.
28. Because an employee has participated in an investigation of alleged disability discrimination.
29. Because an employee has filed a lawsuit alleging illegal disability discrimination.
30. Because an employee has requested an accommodation for a disability.
31. Because an employee has been provided an accommodation for a disability.   
32. Because an employee is of a certain national origin.
33. Because an employee has filed a complaint of alleged national origin discrimination.
34. Because an employee has participated in an investigation of alleged national origin discrimination.
35. Because an employee has filed a lawsuit alleging illegal national origin discrimination.  
36. Because an employee is pregnant.
37. Because an employee has filed a complaint of alleged pregnancy discrimination.
38. Because an employee has participated in an investigation of alleged pregnancy discrimination.
39. Because an employee has filed a lawsuit alleging illegal pregnancy discrimination.  
40. In some locales, because an employee is of a certain sexual orientation.
41. In some locales, because an employee has complained of discrimination based on sexual orientation.
42. In some locales, because an employee has participated in an investigation of alleged discrimination on the basis of sexual orientation.
43. In some locales, because an employee has filed a lawsuit alleging illegal sexual orientation discrimination.
44. In some states, because an employee has used certain social network websites or engaged in other after-work social activities.  
45. Because the employee is of a certain religion.
46. Because the employee has filed a complaint of alleged religious discrimination.
47. Because an employee has requested an accommodation to engage in certain religious activities or observances.  
48. Because the employee has participated in an investigation of alleged religious discrimination.
49. Because an employee has filed a lawsuit alleging illegal religious discrimination.   
50. Because the employee has complained of a hostile work environment.
51. Because the employee has participated in an investigation of alleged hostile work environment.
52. Because an employee has filed a lawsuit alleging illegal hostile work environment.
53. Because an employee has objected to sexual harassment.
54. Because an employee has filed a complaint about sexual harassment.
55. Because an employee has participated in an investigation of sexual harassment.
56. Because an employee has filed a lawsuit alleging sexual harassment.   
57. Because the employee has filed a complaint about a refusal to pay overtime when it is due.
58. Because the employee’s spouse has filed a complaint about a refusal to pay overtime when it is due.
59. Because the employee’s fiancé has filed a complaint about a refusal to pay overtime when it is due.
60. Because an employee, an employee’s spouse or an employee’s fiancé has filed a lawsuit alleging a refusal to pay overtime when it is due.
61. Because an employee has filed a complaint about other violations of wage and hour laws, including violation of minimum wage.
62. Because the employee has objected to the accounting, bookkeeping or accounting practices of a publicly traded company, under the federal Sarbanes Oxley law.  
63. If a company has a policy against retaliation for objecting to impropriety, dishonesty or illegality, and the employee has objected to one of them.
64. If the employee is called up to provide military reserve duty.
65. Because the employee must serve jury duty.
66. Because the employee has objected to an employer’s violation of the federal Health Information Protection and Accountability Act (“HIPAA”).
67. In some locales, due to the employee’s physical appearance.
68. In some locales, due to the employee’s marital or family status.
69. In response to the employee’s speaking out publicly on a matter of public concern if the employee is a public employee.
70. Because the employee has filed a claim for Worker’s Compensation.
71. Because the employee has filed a claim for Unemployment Benefits.
72. Because the employee has filed a complaint of dangerous workplace conditions with state or federal agencies. 
73. In many states because the employee has previously been arrested or in jail for a charge that does not reflect on his or her ability to do the job.
74. In many states, due to the employee’s medical history.
75. Due to the employee’s genetic testing information.
76. In some states because an employee engages in certain social or recreational activities unrelated to his or her job duties.
77. In some states, because an employee smokes cigarettes.
78. Because the employee needs a reasonable period of time to vote.
79. Because the employee has requested the forms to apply for a Family and Medical Leave Act (“FMLA”) leave of absence.
80. Because an employee has filed a request for a FMLA leave of absence.
81. Because an employee has taken a FMLA leave of absence.
82. In most circumstances before an employee on FMLA leave has returned to his or her job.  
83. Because an employee has made a complaint about not receiving equal pay based on gender, race or age.
84. Because an employee has filed a lawsuit for not receiving equal pay based on gender, race or age.
85. Because an employee has participated in an investigation of alleged violations of equal pay.
86. If an employee is a union member and the union contract requires a certain reason for firing be established before firing.
87. If an employee is a union member and the union contract requires a certain process be completed before a firing can take place.
88. Because an employee has joined a union.
89. If a union member filed a union contract grievance.  
90. Because the employee has participated in union organizing activities.
91. Because the employee has participated in union operating activities.
92. Because an employee refuses to engage in a criminal act.
93. Because an employee refuses to engage in a fraudulent act.
94. Because an employee refuses to engage in an act that is likely to cause harm or damage to a person.
95. Because an employee refuses to engage in an act that a state law prohibits, such as a request to commit perjury at a trial.
96. Because an employee has reported a violation of law, such as reporting an employer engaging in illegal child labor.
97. Because an employee has acted in the public interest, such as joining the National Guard or performing jury duty.
98. Because an employee has exercised a right under law, such as filing a claim for worker’s compensation.
99. In some states when an employer has acted in bad faith, such as to avoid having to pay an employee his or her earned retirement benefits.
100. In some states when an employer has acted in bad faith, such as to avoid having to pay a salesperson commissions that he or she has earned.
101. In some states if an attorney refuses to violate legal ethics.
102. In some states, for what is called a “violation of an important public policy.”
103. Because an employee filed for bankruptcy protection.
104. Because an employee has bad debts.
105. Because an employee’s wages are garnished by a court.
106. Because an employee filed a complaint under the federal Clean Air Act of 1970.
107. Because an employee filed a complaint under the federal Energy Reorganization Act of 1974.
108. Because an employee filed a complaint under the federal Occupational Safety and Health Act of 1970. 
109. Because an employee filed a complaint under the federal Safe Drinking Water Act of 1974. 
110. Because an employee filed a complaint under the federal Solid Waste Disposal Act of 1965.
111. Because an employee filed a complaint under the federal Toxic Substance Control Act of 1970.
112. Because an employee filed a complaint under the federal Comprehensive Environmental Response, Compensation and Liability Act of 1980.
113. Because an employee filed a complaint under the federal Water Pollution Control Act of 1972.
114. Because an employee filed a complaint of unsafe mining practices under federal mine safety laws.
115. Because an employee filed a complaint of unsafe railroad practices under federal railroad safety laws.
116. For refusing to participate in a polygraph test under federal laws.
117. For the results of a polygraph test under federal laws.              

It is my experience over the years that “The Big ‘At-Will’ Lie” is responsible for discouraging employees from using the many legal rights available to them to stand up for themselves – and for what is right – at work. It is my hope that this will be a “wake up call” to those who have been lulled into believing they can be “terminated any time for any reason.” It is just not true.                       

SkloverWorkingWisdom™ emphasizes smart negotiating – and navigating – for yourself at work. Negotiation and navigation of work and career issues require that you think “out of the box,” and avoid risks at every point in your career. Knowing that you have rights and remedies available to you is the place to start, for it is the “knowledge platform” upon which you can stand when treated improperly or illegally. Knowing ways to avoid disputes is even more advantageous. Learning the “in’s and out’s” of doing so is what we are here to help you with. Now it’s up to you.       

Always be proactive.  Always be creative.  Always be persistent.  Always be vigilant. And always do what you can to achieve for yourself, your family, and your career. Take all available steps to increase and secure employment “rewards” and eliminate or reduce employment “risks.” That’s what our SkloverWorkingWisdom™ is all about.

*A note about our Actual Case Histories: In order to preserve client confidences, and protect client identities, we alter certain facts, including the name, age, gender, position, date, geographical location, and industry of our clients. The essential facts, the point illustrated and the lesson to be learned, remain actual.    

Please Note: This Newsletter is not legal advice, but only an effort to provide generalized information about important topics related to employment and the law. Legal advice can only be rendered after formal retention of counsel, and must take into account the facts and circumstances of a particular case. Those in need of legal advice, counsel or representation should retain competent legal counsel licensed to practice law in their locale. 

Repairing the World . . . One Employee at a Time™

© 2011, Alan L. Sklover All Rights Reserved. Commercial Use Prohibited.