Employment at will—the right to terminate a work relationship for any reason or no reason at all—is a state law concept structured to give both businesses and workers flexibility and mobility. For employers, employment at will obviously provides great latitude concerning staff management and it can help facilitate decisions related to seasonal and holiday workers, outsourcing, probationary periods, and policy effectiveness. Forty-nine states recognize employment at will as the default employment relationship (Montana being the exception).
But employment at will is not an employer’s carte blanche and the doctrine does have its limitations. While an employer need not necessarily give a reason for terminating an employee at will, if a reason is given, it must be a permissible one. Even when no reason is given, the circumstances of the termination might imply an impermissible motive underlying the termination. Further still, the relationship between the employer and employee may evolve over time to imply something more than at-will status.
Employers should always pause and assess the situation before opting for termination.
Personal characteristics and immigration status
Anti-discrimination laws, spearheaded by Title VII of the Civil Rights Act of 1964, prohibit workplace discrimination based on race, gender, national origin, or religion. Other state and federal laws have expanded anti-discrimination protections to age, sexual orientation, pregnant females, and new mothers.
It is permissible to refuse employment or terminate an existing employee if their immigration status prohibits them from working; however, federal statutes like the Immigration Reform and Control Act (IRCA) prohibit hiring and firing decisions made based on legal alien status.
A perfectly legal basis for termination might later be perceived or characterized as pretextual for something more insidious, potentially making the circumstances surrounding a termination relevant to a wrongful termination lawsuit. Common examples of pretextual termination include releasing an employee before he or she qualifies for retirement benefits, or coercing an employee’s departure through uncomfortable or inhospitable work conditions in order to avoid paying severance.
Not cooperating with company investigations
Generally, employees might refuse to cooperate with a company investigation—a property search or drug test, for example. It is also generally alright for a company to respond to such refusal with a termination letter. But there are situations where non-cooperation is not proper grounds for terminating an employee at will. The federal Employee Polygraph Protection Act, for example, prevents termination for refusal to take a lie detector test.
First Amendment rights
While the First Amendment to the U.S. Constitution broadly protects freedom of speech, the Constitution generally regulates only government activities and its application to private employers is therefore limited. However, some types of speech, such as politically expressive speech, operate in a gray area. While several states have extended protection for political speech to private employees, Ohio is not among them.
Other speech, such as discussions about workplace conditions and acts contrary to public policy, remain in the sphere of protection. Let’s delve into them.
Politics affecting workplace conditions
The National Labor Relations Act prohibits employers from banning discussions about workplace conditions, including how the political climate or the outcome of a particular election might impact the workplace. By logical extension, employers also cannot fire terminate employees for such discussions.
Under the U.S. Supreme Court’s infamous decision in Citizens United v. FEC, 130 S. Ct. 876 (2010), which held that corporations have a right to make independent political expenditures under the First Amendment, employers can communicate directly to employees about elections, encourage them to vote for certain candidates, and, in many states, even compel them to do political work or attend political gatherings during work hours and for compensation.
In a legislative parallel, the Civil Service Reform Act of 1978 prohibits discrimination (up to and including termination) of a public employee for his or her political affiliation. This protection has not found widespread purchase in the private sector. Ohio has no such employee protections, but it does require employers to allow for “reasonable” time off to vote at the polls. See R.C. 3599.06.
Employers cannot terminate employees simply for attempting to defend or assert their rights. For example, consider an employee who files a good faith lawsuit for workplace discrimination; the employer cannot terminate the employee out of hand just for bringing the lawsuit. A court could find that such a termination was retaliatory.
Another point of retaliation might be an employee challenging the business on public policy grounds. Public policy is an amorphous talking point in the law, but in our context the heart of it is to encourage acts that the public would view as morally or ethically positive and discourage those which are not. An employee’s refusal to commit an illegal act, reporting an employer’s illegal act (i.e., whistleblowing), or exercising a legal right (e.g., voting) are all favored by public policy and may not be used as a basis for termination.
Sometimes, an implied contract can arise from an employment at will relationship. Such an implied contract could arise from representations by the employer that suggest job security to the employee. Courts will often carve out or limit an employer’s otherwise blanket right to terminate based on these kinds of representations. In some states, even at-will policies in employee handbooks can be amended or nullified by an employer’s subsequent representations and assurances. See, e.g., Wilson v. General Motors Corp., 454 N.W. 2d 405 (Mich Ct. App. 1990).
Most of the prohibitions on termination that we’ve discussed require the employer to take some conscious (often contentious) action. An implied contract, though, can form from the most innocuous of conversations. Hence, employers should be careful about representations made to employees in any circumstance.
Max Julian is an attorney at The Gertsburg Law Firm. Julian’s practice is focused on commercial litigation. He can be reached at email@example.com or by phone at (440) 571-7541.