Know the Difference.
“Right to Work” and “Employment-at-Will.” Both are employment terms that may appear in offer letters and employee handbooks and are tossed around frequently in legal circles. What do the terms mean and are they interchangeable?
They are in fact very different.
Right to Work laws are related to unions. In a Right to Work state, briefly, employees have the right to work for a company and benefit from any union contracts that cover the company without being required to join the union or pay union dues. Non-member employees are also bound by the union contracts and the union will bargain on their behalf. Over half of this country’s states are covered under Right to Work laws. https://www.nrtw.org/right-to-work-states
Employers in states without Right to Work laws can require that employees pay dues even if they do not join a union if they want to be covered by any results of bargaining activity.
Whether in a Right to Work state or not, employees can refuse to join a union or resign once they have joined.
Employment-at-will, on the other hand, only has to do with the employment relationship itself and the terms/length of employment.
Most states in the U.S. (except, at press time, Montana) are at-will states. At-will basically means that an “employer can terminate an employee at any time for any reason, except an illegal one, or for no reason without incurring legal liability. Likewise, an employee is free to leave a job at any time for any or no reason with no adverse legal consequences.” Terms of employment can also be adjusted for lawful, business-related reasons. (see https://www.ncsl.org/research/labor-and-employment/at-will-employment-overview.aspx for more information)
So, in a nutshell employees can quit? Just like that?
Well, yes, they actually can.
Employees can sign an offer letter and then turn around and tell you the following day that they have reconsidered and accepted a job elsewhere. Employees can work a few weeks, decide a job is not for them and suddenly call you one morning to let you know that they are quitting. Employees can leave in the middle of a project, right after a two-week training session or a day after receiving a promotion or bonus. State laws as to final pay should still be observed, even if employees do not give notice or simply stop showing up for work (i.e. “Job Abandonment.”)
So what protections do employers have? If employees can leave at any time for any reason, technically, then, you can fire an employee for any reason at any time, right?
Well, yes… and no.
Terminations should always be lawful and make sense.
The action of firing an employee for the following reasons (for example) is UNLAWFUL and never advised:
- exposing company fraud (“whistleblowing”)
- requesting a protected leave of absence
- asking for an accommodation for his or her disability
- being pregnant
- bringing a complaint forward of sexual harassment
On the other hand, firing an employee for (for example):
- having a persistent bad attitude
- frequent occurrences of insubordination
- performance issues that don’t improve after a reasonable period (60-90 days)
- a serious incident of workplace violence
- too frequent occurrences of tardiness/absences (that are not otherwise protected by state or locally-mandated sick leave)
IS lawful with adequate documentation and is a business necessity.
Note that terminations based on performance, violations of company policy or other lawful business-related factors should never be a surprise as policies should be clearly outlined in an employee handbook.
Best practices also encourage that general performance issues be well documented and progressive in nature, with a plan for improvement discussed with the employee well before a termination happens. Events, such as gross misconduct, that warrant immediate employment action should likewise be well documented, supported by written policies, and consistently enforced.
Employers may run into trouble if an employee is suddenly fired for “performance issues” but the latest Performance Review on file is a stellar one with no subsequent records of poor performance or discussions with the employee.
As with voluntary terminations, employers should always make sure to verify state law for final pay details for involuntary terminations. Even if an employee is fired, some states still require payout of accrued vacation/PTO and prohibit any deductions from a final check to recoup business losses or failure to return company property.
Right to Work and Employment-at-Will… both having to do with employment but very different concepts. Understanding of these two terms will assist in navigating employee and employer rights under these laws.