At-will employment might be the most widely misunderstood concept in the American workforce. Most people don’t realize they’re at-will employees and most people only find out when it’s too late.
Here’s the truth:
74% of US private sector employees are employed “at-will” and don’t have a written employment contract. That means the majority of Americans are working under a legal doctrine that lets an employer fire someone — at any time, for any reason, even for something as trivial as the way they chew gum.
But most people miss this part…
Just because an employer can fire someone at any time doesn’t mean they can fire them for any reason they want. Employment-at-will is not a free pass for unethical, unfair, or illegal behavior. There are real limits. Real unlawful termination rights. And in states where employment-at-will applies, knowing where the line is — and where it isn’t — could save thousands in legal fees and lost wages down the road. Georgia Wrongful Termination claims are a perfect example of unlawful termination rights in action.
Want to know your rights before you get fired?
Here’s everything you need to know.
What You’ll Learn:
- What Is At-Will Employment?
- Why At-Will Isn’t As Absolute As You Might Think
- Every Illegal Reason You Can (and Can’t) Be Fired
- Real Examples of Wrongful Termination
- Steps to Take If You Believe Your Unlawful Termination Rights Have Been Violated
What Is At-Will Employment?
At-will employment is when an employee can be dismissed by an employer for any reason — without warning.
And vice versa. An employee is free to resign from their job at any time without warning too.
49 states operate under employment-at-will laws. Montana is the only state without some flavor of at-will employment — though employers there are still required to have a legitimate reason to fire someone after a probationary period. This means that unless you live and work in Montana, you’re probably an at-will employee.
Employers can fire you.
For no reason.
No explanation required. No justification needed.
It’s certainly not fair. But it’s perfectly legal.
Except when it’s not.
As with everything else in employment law, there are limits. An employee can be fired at-will — but not unlawfully.
If a termination violates federal law, state law, or an employment contract, the affected employee may be able to pursue an unlawful termination claim. These are the circumstances where lawful dismissals end and wrongful termination begins.
Read: How Small Businesses Can Navigate Vehicle Shipping Without Overspending
Why At-Will Isn’t Absolute?
Employment-at-will is best thought of as an open road with speed limits.
An open road where an employer can terminate without notice. But they can’t fire someone:
- For being female
- For taking time off to care for a new baby
- For blowing the whistle on illegal activity
- For being older than 40 years of age
- Because of their race
- …or dozens of other reasons covered in a moment
Employment laws over the past several decades have worked to balance an employer’s need to manage a business with an employee’s right to be treated fairly. That balance is at-will employment’s exceptions.
The Civil Rights Act of 1964 began the trend, but since then the Age Discrimination in Employment Act, Americans with Disabilities Act, and Family Medical Leave Act have added even more worker protections.
If you’re wondering how those protections affect you…
Keep reading.
Every Illegal Reason You Can (and Can’t) Be Fired
Most of the unlawful termination rights listed below fall under discrimination protections.
Employers cannot fire an employee for who they are, or aspects of their identity. Exactly who that protects is as follows:
- Race, color, or national origin
- Sex or gender identity
- Religion
- Age (if the employee is at least 40 years old)
- Disability
- Pregnancy
Employees are also protected from retaliation. This means an employer cannot fire someone because they:
- Reported unsafe working conditions, compliance issues, or other illegal activity (whistleblowing)
- Filed a workers’ compensation claim
- Refused to take part in illegal activity ordered by an employer
- Took legally protected family or medical leave
Finally, some states recognize “public policy” as a reason an employer can’t terminate an employee. Basically, an employer can’t fire someone for doing something that state law explicitly permits. Jury duty is a common example of this.
If there is an employment contract or employee handbook, they can provide additional unlawful termination protections.
Employment contracts that specify a set employment term or conditions around termination give an employee the right to be employed until the end of that term — unless they violate the contract.
Similarly, an employee handbook can function as an implied contract. If an employer has written procedures for discipline and termination, they generally must adhere to those procedures.
Together, these unlawful termination protections cover almost every employee in the country.
But they’re not well known.
Real Examples of Wrongful Termination
Let’s review what actually qualifies as wrongful termination.
First, it’s important to understand what wrongful termination is not.
Being fired because a manager doesn’t like someone, for example, is not illegal under employment-at-will. Neither is being demoted without cause, or having hours cut without explanation.
Wrongful termination literally means the termination was wrongful. It went against federal law, state law, or an employment agreement.
If a boss fired someone because they filed a sexual harassment claim with HR, that’s retaliation. If an employee was fired for taking FMLA leave to care for a family member, that’s a violation of rights under the FMLA. More than 4 in 10 successful wrongful termination claims involve illegal discrimination or harassment — and it happens across workplaces of every size, every single year.
Wrongful termination looks different for every illegal reason an employer can’t act on.
Some common examples include:
- Being fired after reporting sexual harassment to HR
- Being terminated while on approved FMLA leave
- Being fired for filing a workplace safety complaint with OSHA
- Being let go after filing a discrimination claim with the EEOC
- Being terminated for taking time off under the ADA
As with any unlawful termination situation, these claims are only valid if the employer cannot prove they had a lawful reason to terminate.
If an employer can produce a legitimate reason that happened to coincide with a discrimination complaint, FMLA leave, or whistleblower claim — they will likely have a strong legal defense.
As an employee, the burden of proving a termination was illegal falls on you.
What To Do If You Believe Your Unlawful Termination Rights Have Been Violated
Think you might have a case?
The first thing to do is don’t panic.
If an employer violated unlawful termination rights, the affected employee may be eligible to file a claim with the EEOC — or possibly sue for wrongful termination, but only after filing an EEOC claim.
Either way, acting fast is essential. Here’s how.
Immediately
- Write down everything. Accounts of events and conversations leading up to the dismissal will be crucial later. Don’t trust memory to keep track of details.
- Save any evidence. Emails, performance reviews, and other communications with the employer can go a long way. Save anything possible before access to company systems is revoked.
- Review the employee handbook. Check whether the employer provided any contractual protections in the handbook. Things like “progressive discipline” or “just cause” termination provisions can be enforceable as unlawful termination protections.
Within 30 Days
- File a charge with the EEOC. Discrimination and retaliation claims require a charge of discrimination to be filed with the EEOC before suing an employer. In many cases, filing is as easy as filling out an online form.
Within 90 Days
- Contact an employment attorney. Every state has different employment laws. Find an attorney who knows how the relevant state handles wrongful termination, ideally before filing the EEOC claim.
Timing is everything. Waiting too long to file a claim could bar legal action altogether.
The Takeaway
Employers in the United States have broad legal authority to terminate employees.
They do not, however, have carte blanche to fire anyone for any reason.
Federal law, state law, and individual employment contracts create clear unlawful termination rights for employees. Understanding those rights, and how they apply — before a termination happens — is the best way to protect against unlawful dismissal.
And if a termination does turn out to be unlawful? Knowledge is power. There will be plenty of time to clean up a resume once evidence has been gathered, a claim has been filed, and an attorney has been consulted.