The At-Will Myth
Employers have lied about "At Will Employment" for generations. This is how companies cheat the system and how you can fight back!
How many times have you seen this policy at work?
“You are employed at-will. This means you can be terminated for any reason, including no reason, at any time, with or without cause, with or without notice.”
It’s a common policy, and while it is not technically wrong, it certainly leaves out a lot of important details. So let me make something clear right out the gate:
Wrongful Termination is Illegal Even in At Will States!
But if At-Will employment means you can be fired for any reason, then how can this be true? The answer is that many employers leave out the most important detail of At-Will employment: You can be fired for any LEGAL reason.
There are 49 At-Will States in the U.S., Montana is the only exception. But in all 50 U.S. states, wrongful termination is still illegal—you can sue and you can win against your employer for illegally firing you.
What Makes Termination “Wrongful”
Any termination that violates local, state, or federal laws is “wrongful termination.” There are MANY ways this can happen, but here are a few quick examples:
Firing you because you requested a disability accommodation;
Firing you for reporting unsafe conditions;
Firing you in retaliation for reporting sexual harassment;
Firing you because of your race, age, religion, national origin, disability, sex, or other protected status;
Firing you because you took protected leave, such as FMLA.
These are far from the only reasons that would be illegal to fire someone, but they are some of the most common. Even in an At-Will state, an employer who fires you for illegal reasons like this could face serious financial consequences.
For example, in 2023 a jury awarded $41.5 million to a Neonatal ICU nurse who was fired because she reported unsafe conditions for patients. This happened even though the nurse was employed “At Will.” Further, the employee won this verdict despite multiple claims by the hospital that she was fired for “poor performance” and “misconduct.”
And this raises an interesting question: Can employers just refuse to say why you are fired to escape liability? Or better yet, can they just make up another fake reason as a cover up?
They can try, and in my cases they almost always do, but whether they succeed in the cover up depends in large part on how prepared the employee is to fight.
Do not let this intimidate you! There are simple steps employees can take to protect themselves.
What if the Company LIES About Why They Fired You?
Employers who fire employees for illegal reasons will do one of two things: (1) Refuse to say why you are fired, or (2) Claim you had poor performance.
What if they don’t say why I am fired?
This one is pretty straight forward. If you have some evidence that shows an illegal motive for firing you, then their refusal to say why you are fired looks suspicious. For example, I recently had a case where my clients boss fired her “at will.” However, we also had text messages from him confessing his love to her. When she didnt reciprocate… well he didnt want her around anymore. That’s sexual harassment, its gender-based discrimination, and At-Will employment was no excuse.
What if they say I was fired for poor performance?
In these cases, it becomes a battle of credibility. Who’s version of events is most believable?
I recently won $106,000.00 for a client who was fired from a fast food chain. There, he actually had zero performance reviews. None. That is, until he requested 5 weeks off to care for his sick grandmother under FMLA. Suddenly, the manager had all kinds of grievances about my client.
But all those complaints began only after the protected activity (requesting FMLA leave).
These are merely examples, and I am NOT saying your case is worth millions or hundreds of thousands of dollars. Every case is unique and you need an individual evaluation to understand what your case might be worth.
SO WHAT DOES THIS ALL MEAN? WHAT IS THE POINT?
THE POINT: At will employment means you can be fired for any LEGAL reason. If you have some evidence that your termination had an ILLEGAL motive, then you can still get justice. This is true even if your employer refuses to say why your are fired, and even if they make up a cover story.
At the end of the day, every case is a battle of evidence and credibility.