What’s the difference between “at-will employment” and being employed in a “right to work” state? This question comes up a lot in my consultations.
One of the most common statements I hear from potential clients is, “I know we’re in a right to work state and that means I probably don’t have any rights.” Normally, it’s said with a feeling of frustration and powerlessness. However, the statement is wrong for two separate reasons: 1) that’s not really what the employee means, and 2) the employee does have rights, although maybe not as many here as in other states.
What Does “Right to Work” Mean for South Carolina Employees?
First of all, while we ARE in a right to work state, that’s not really what the employee means in that statement. For South Carolina employees, “right to work” means that the employee cannot be compelled to join a union in order to work for a particular company. See South Carolina Code Section 41-7-10. The employee CAN join, but that can’t be a reason to refuse to hire someone. The employee can still be covered by a union contract but does not have to pay dues. South Carolina is not a heavily unionized state, but unions do operate here in various industries.
What Does At-Will Employment Mean for South Carolina Employees?
What the South Carolina employee actually means in the statement above is that South Carolina is an “at-will employment” state. This means that an employee can be fired for good reason, bad reason, or no reason at all. The company does not have to provide a reason for the termination (again, another common reason that employees reach out to my office). Perhaps the company doesn’t like the football team that you root for, or the color of your socks is particularly off-putting. You can be fired for those reasons, unless you have a contract that says otherwise. But for most employees who don’t have a contract for a certain term of years, then the at-will default rule is what will govern.
At-will employment also means that an employee can leave for good reason, bad reason, or no reason at all, unless the employee has signed a contract that says otherwise (such as a requirement to provide a certain amount of written notice).
Does a South Carolina Employee Have Any Rights in the Workplace?
The answer is yes. Although a company has great leeway in firing you or taking other personnel actions against you, the company cannot fire you for an illegal reason. What are some examples of an illegal reason to terminate someone? Here are just a few:
(1) Because of their race, age, sex, national origin, disability, or religion (illegal discrimination).
(2) Because the employee complained about discrimination or harassment on the basis of race, age, sex, national origin, disability, or religion (illegal retaliation).
(3) Because an employee requested medical leave under the Family and Medical Leave Act or a reasonable accommodation under the Americans with Disabilities Act.
(4) Because the employee complained about safety concerns in the workplace or reported safety concerns to OSHA (whistleblower retaliation).
(5) Because the employee reported unpaid wages to SC Department of Labor, Licensing, and Regulation or reported unpaid overtime or minimum wage to U.S. Department of Labor.
(6) Because the employee engaged in behavior protected by the South Carolina Political Rights Statute.
This is not an exhaustive list, but it does illustrate that South Carolina employees do have protections and rights under state and federal law. However, many of the exceptions are narrow, and many are difficult to prove. The purpose of an employment law consult is to delve into the facts of the employee’s situation and see whether any of these exceptions to the at-will default rule apply and would thereby provide a method for the employee to bring a lawsuit against the company for violation of those rights.
Every case is different, and many employees who contact me do not have claims that would be viable under the law. But if you have been terminated, harassed, discriminated against, or retaliated against, then you should reach out to a South Carolina employment lawyer for just such a fact-specific consultation. All legal claims have a time limit, so don’t delay in protecting your rights.
