- Parental Leave
- Pay Disparity
- Religious accomodation in the workplace
- Equal pay and prior salary information
- I quit! How to avoid constructive discharge
- You Can't Shred Email
- Navigating Unemployment Claims
- Considering Criminal History in Pre-Employment Decisions
- Defamation Claims from Former Employees
- Mixed Motive Causation
- Requesting Accomodation: Kowitz v. Trinity Health
- Antitrust Law in Human Resources
- An Evolving Standard: Joint-Employment
- What Does At-Will Employment Mean for Employers?
- Let's Talk About Wages
- THE FLSA: CHANGES ARE COMING
- Follow Up: Obesity and the ADA
- The Importance of Social Media Policies
- Is Obesity a Qualifying Disability under the ADA?
- Retaliation on the Rise: The EEOC Responds
- What Motivates You?
- "But I thought ...
- Who’s expecting? And what is he expecting?
- Are You Still Doing Annual Performance Reviews?
- Who is Your Employee?
- The unpaid intern trap Part II
- “We’ve been the victim of a cyber-attack”
- So, a Hasidic Jew, a nun in a habit and a woman wearing a headscarf walk into your office?
- The unpaid intern trap
- Pregnancy in the workplace
- Let's talk about honesty.
- "Did You Know" Series - Part I
- Conducting an Internal Investigation
- What HR can look forward to in 2015!
- The chokehold of workplace technology
- Does your company have trade secrets?
- North Dakota Construction Law Compendium for 2014
- Does the North Dakota baby boom affect you?
- Ban the Box? Why?
- The end of the world as we know it
- Everybody has an opinion
- Changes, Changes, Changes!
- Nick Grant presents at North Dakota Safety Council's 41st Annual Safety and Health Conference
- Email impairment: A potentially harmful condition
- Are Employers Required to Give Stressed-Out Employees Time Off?
- Can you obtain a credit report when investigating employee wrongdoing?
- Can’t we just sidestep the ACA?
- Should Your Employees Telecommute? Part III
- Should Your Employees Telecommute? Part II
- Should Your Employees Telecommute?
- Proper Investigation of Employee Misconduct
- Battles in the Wellness War
- Rules are rules! Aren’t they?
- What's going on in Bismarck
- A glimpse ahead
- Obesity as a disability under the ADA – reweighing the issue
- What’s next for your business under the Affordable Care Act?
- Criminal Background Checks
- Becoming a lawyer is a process, not an event [Section 5 of 5]
- Congress Says Yes To North Slope Energy Jobs Bill
- Test Your Knowledge of Social Media Policies and Employee Discipline
- Becoming a lawyer is a process, not an event [Section 4 of 5]
- What Every Employer Needs to Know About the NLRA
- Will the 2012 Elections Make A Difference
- Where There's Smoke...
- Dress Code Etiquette: Is Casual Friday Becoming Freaky Friday
- The Next Disaster May Be Yours
- Hostile Work Environment Claims
- North Dakota Employment Law Links
- There's An App For That
- Am I a “Business Associate”? Why Should I Care?
- Do You Recognize a Cat's Paw When You See One?
- Cell Phones Can Cost a Lot, Part II
- Becoming a lawyer is a process, not an event [Section 3 of 5]
- Cell Phones Can Cost a Lot, Part I
- The Economy - What HR Professionals Need To Know
- Becoming a lawyer is a process, not an event [Section 2 of 5]
- Three New Challenges For HR Professionals
What Does At-Will Employment Mean for Employers?By: Allison Mann
In North Dakota, and every other state other than Montana, employment is presumed to be “at-will.” What this means, is that, generally, an employer can terminate an employee at any time, with or without cause, for any legal reason. Likewise, an employee can terminate the relationship at any time, just because they feel like it.
However, both state and federal law have abridged the at-will doctrine by carving out exceptions to the general rule. Laws have created protected classes and situations where an employer cannot discharge an employee without legal repercussions. In addition, the employer’s own policies and contracts may limit its right to terminate an employee.
Some legal commenters have even theorized that at-will employment is essentially worthless to an employer, after taking these factors into consideration. While this statement may be an extreme interpretation, there is some truth at its foundation.
Laws Abridging Employers’ Rights
Laws restricting the at-will doctrine are found at both the federal and the state level. They include, but are not limited to, the following:
These are just to name a few. The more pessimistic commenters argue that these laws have essentially made everyone part of a protected class: women (or men), racial minorities (or those in the majority), pregnant women (or those recently pregnant), those with a medical condition (or with a close relative with a medical condition), the religious (or not), the married (or unmarried), whistleblowers, military, the aged, disabled and those that have been injured on the job. It is hard to find an employee that won’t fit into at least one of these categories.
- The Americans with Disabilities Act;
- The Civil Rights Act of 1964;
- The Age Discrimination in Employment Act;
- The Family and Medical Leave Act;
- The Pregnancy Discrimination Act;
- Sarbanes-Oxley Act;
- Uniformed Services Employment and Reemployment Rights Act;
- North Dakota Human Rights Act;
- North Dakota Retaliation Law;
- North Dakota law relating to employer’s discriminatory practices; and
- Workers’ Compensation laws.
However, these laws don’t mean that you cannot fire someone that belongs to a protected class. They do mean that you cannot fire someone because they are part of one of these protected groups. Where employers get in trouble is when there is no clear reason why an employee was fired. In many of these instances, the employee may assume, and oftentimes can make a very good showing, that they were fired for an illegal, discriminatory reason. Take for example Jane, a pregnant employee who was terminated because of consistent, poor work performance. Jane may argue that she was fired because she was pregnant. Depending on the circumstances, Jane may be able to prove wrongful termination if her employer cannot show another valid reason for the termination.
Contracts and Policies Abridging Employers’ Rights
In many situations, an employer may contract away its “at-will” employer status. These situations range from individual employment contracts to collective bargaining agreements. Generally, an employer cannot terminate these employees unless it can show good cause for such termination. One common example of this situation specifically recognized in North Dakota law is employment for a definite term. For example, a clause in the contract that states: “The term of this agreement is for __ years.”
In addition, an employer may inadvertently waive at-will status in its own policies. Two common policies terminated employees have argued waive at-will employment are probationary period policies and progressive discipline policies. Employees argue that these policies give them the right to either work for the entire probationary period, or that the entire progressive discipline policy must be followed before an employee can be terminated.
In theory, at-will employment gives employers the power to react to day-to-day situations, and make real-time employment decisions. As shown above, this power is tempered by law and private agreement.
So, how should employers address these issues?
First, employers should minimize the risk of a seemingly discriminatory termination. The following guidelines can help ward off such wrongful terminations suits:
Second, employers must avoid inadvertently waiving at-will employment status, or be aware when at-will employment has been waived.
- Clearly communicate all job requirements and standards to employees;
- Apply all requirements to employees consistently;
- Investigate any complaints against an employee before taking disciplinary action; and
- Consider all applicable laws and policies before making a termination decision.
These are just a few general tips. For more specific guidance or for help in developing policies to address at-will employment, it is recommended that competent legal counsel be consulted.
Our interest in serving you
My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at firstname.lastname@example.org. We promise to take your comments and ideas to heart.
(Otherwise known as “the fine print”)
I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.
Reprinted with permission from an article submitted for publication in the August, 2016 Southwest Area Human Resource Association newsletter.