The 'Employee-at-Will' – The Ball is in the Employer's Court


Lawyers who regularly represent Plaintiffs are often contacted by a recently fired employee, asking whether there is recourse against a now former employer for what the employee believes to be a wrongful firing.  In New York and other “at will employment” states, unless an employee has a written or otherwise enforceable employment contract, that employee can be fired at any time for any reason, or for no reason.  The limitations on that rule involve firing for reasons of race, ethnicity, gender, or the like.  Therefore, while an employee cannot be fired solely due to a discriminatory reason, that employee can be fired for any other reason.  

Many potential clients express genuine surprise when they learn of this Rule, although it exists in nearly every state in the Union.  Thus, in uncertain economic times, an employer can decide one morning that that day is a particular employee’s last day on the job.  The soon to be terminated employee can be the most or least productive member of the team, or even the entire company; neither fact really matters.  The employee’s “at will” status permits the employer to terminate the employee at any time.

But even with this Rule, there are ways for an employer to handle or prepare for a firing.  Accepting that most employers are not out to fire an employee at the drop of a hat, it makes sense for an employer to keep employee files, and to record negative performance reviews contemporaneously.  If an employee’s performance might eventually lead to a firing, the employee should be warned, with the warning also recorded.  If nothing else, that can prevent a charge of discrimination if the employee is fired, according to national labor laws.  While it is true that an employee can be fired at any time, the employer would obviously prefer to not be sued for a wrongful firing, and if the employer is sued, to have a record on which to defend the firing. The fact that an employee is a member of a protected class – race, religion, gender, or sexual orientation – should not prevent an otherwise proper termination.

Of course, employees can also benefit from this “at will” status.  A disgruntled employee is free to quit at any time.  Like the employer’s right to terminate, the employee’s decision to leave can be for any reason or for no reason, at any time, with or without notice, even if that decision leaves the employer unable to fulfill a customer deadline, or, in the case of a law firm, a court-imposed deadline.  That at will status can be used as a bargaining chip in cases where an employee is unhappy with his or her compensation level, or with some other aspect of the position.  Employers might be advised to offer employment contracts to key employees to prevent this scenario. This can often be the case for construction workers who exhibit special skills that can’t be replaced during a project. Though employers can’t be fully protected from a construction civil lawsuit should an accident happen, it can be of value during a case.  The contract can require a certain period of notice for an employee to give a certain period of notice before quitting; while there may be serious questions as to the enforceability of that clause for the employer’s benefit, it might at least give an employee pause before walking out the door with no notice. However, workers compensation cases do not change in these circumstances.

Employment-at-will is the general rule in the United States.  Both employers and employees should take steps to prepare themselves with a full understanding of their rights and responsibilities pursuant to this Rule.

Michael L. Taub, a Partner at The Platta Law Firm PLLC, has been a member of the New York State Bar for 38 years, and is a graduate of the American University Washington College of Law.  He is also admitted to practice in the United States District Court, Eastern and Southern Districts of New York, and the District of Connecticut.  He has extensive experience in Plaintiff’s personal injury cases, particularly those concerning automobile accidents and premises accidents.  He has argued multiple cases before the First and Second Departments of the Supreme Court, Appellate Division.

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