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The law in virtually all states and jurisdictions is that an employee who was hired for an indefinite period may be dismissed at any time by an employer, for any reason or no reason, without liability to the employer. This is classified as "employment at will."


Despite the fact that a employee is classified as an "employee at will" there are a few exceptions to their discharge. Federal and state laws protect employees with disabilities under the Americans with Disabilities Act. Federal and state laws also protect employees from termination due to race, sex, age, national origin, and similar factors. The courts have also protected an employee from termination at will if it would violate public policy, or if there is an implied contract between the employer and employee.

In some instances a employer may be held to have created a "constructive discharge" if the workplace has become so uncomfortable, or unprofessional to the employee that their principles are challenged by their continued attendance.

Public Policy Exception

A majority of the states have adopted the public policy exception to the employment at will rule. This exception is based on the theory that employees should not be fired for reasons that violate public policy. For example, an employee fired as retaliation for opposing an employer’s illegal activities, for reporting fire or other safety hazards or for other kinds of "whistle blowing activities" may be an illegal termination.

Wrongful Discharge Exception

Some states have adopted a "wrongful discharge" statute. Wrongful discharge laws vary from state to state. Each basically provides limits on when an employee can be fired. There is a Uniform Employment Termination Act of 1992, written by the National Conference of Commissioners on Uniform State Laws (the same entity that drafted the Uniform Commercial Code, Trade Secrets Acts, and other uniform laws). This Uniform Employment Termination Act at present has not been adopted by any state, however, it advocates that employees can only be fired for "good cause" such as attendance, theft, violence in the workplace, and/or poor job performance.

Implied Contract Exception

In the absence of an express employment contract, or the clear statement of "employment at will," the courts will often infer contractual obligations from the unique circumstances between the employer and employee. If it is reasonable for the employee to assume that they would continue to be employed indefinitely from the employer’s oral or written assurances as long as they perform, then perhaps a "implied contractual" employment exists and the employee may not be terminated except for good cause.

How can Wrongful Discharge Claims be avoided?

The following steps may be used to avoid wrongful discharge claims:

make sure that new employees are fully advised prior to, or at least contemporaneous with their employment, that they are "at will" and may be discharged at any time.

make sure that all employment manuals, policies, procedures and application forms clearly state that the employment is "at will."

It is always best to never terminate a employee unless there is a legitimate reason.

Finally, if there are problems with an employee’s performance or other issues, make sure that they are fully documented and the employee is advised. Otherwise, when the employee is finally terminated for the poor conduct, the employee’s personnel records may be used to show that the employee was never warned in advance. It is best to follow these steps: 1. orally warn, 2. Written reprimand, 3. Place on probation, 4. Terminate.

© Copyright 1997 - 2009 - Gregory L. Martin, Esq. - All Rights Reserved.

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