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Horton Law Firm Blog Law Basics: Employment at Will

Law Basics:  Employment at Will

The most fundamental concept in employment law is employment at will.” Most employees are employed “at will.”  Employment at will is a presumption that applies to employment relationships of an indefinite duration.  An employee at will can be fired for good reason, bad reason (including an immoral reason), or no reason at all–at anytime and without any notice.  Ouch.  Pretty harsh.

So,  what if you show up at work wearing a Clemson shirt and your supervisor is a Carolina fan and he fires you? Employment at will. You lose. Or what if you are fired for missing a day because your daughter had a 24 hour virus? You lose: employment at will. Or because your supervisor wants to give your job to his golfing buddy or girlfriend? Employment at will.  I could go on and on. So, what are the exceptions?

Well, I will post some video related to some of the exceptions in the near future, but in general the main exceptions are as follows:

Federal Law

The top three exceptions under federal law are as follows:

1. Title VII: Employers can’t fire an employee because of race, sex, national origin, pregnancy or for complaining about these types of discrimination or harassment based upon these characteristics.

2. ADEA: Employers can’t fire an employee because of an employee’s age (if over 40) or for complaining about age discrimination.

3. FMLA: Employees who work for employers with 50 or more employees are entitled to take 12 weeks of (unpaid) leave for a “serious health condition” and cannot be fired for taking time off which qualifies for FMLA protection.

There are other federal law exceptions, but these are the main exceptions. If these do not apply and you want to know for sure if there might be another, you should consult an employment attorney.

State Law

There are less exceptions under South Carolina law, but the main two are as follows:

1. Employee handbook: If you have an employee handbook that provides for mandatory progressive discipline, this MIGHT be an exception. The law also permits an employer to have a disclaimer which essentially means the employer is free to ignore its promises. If you have an employee handbook, you should have it reviewed by an employment lawyer. Why? Because it depends on the language used (mandatory or permissive) and the specifics of the disclaimer.

2. Public Policy Exception: The public policy exception is a little hard to define, but it primarily prevents an employer from terminating an employee for refusing to violate the law.  It prohibits an employer from firing an employee for exercising her political rights.  It may also apply if the employee was terminated for reporting a violation of law.   This exceptions is limited, but whether it may apply is hard to know without knowing the specific facts of an individual’s case. Once again, the facts matter.

Termination in violation of the above exceptions can give rise to a cause of action for wrongful discharge.

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