Some legal terms can be confusing and are misused or inappropriately interchanged. This is particularly true with legal terms associated with employment or labor laws. Two employment-related legal terms people regularly misuse are “at-will” and “right-to-work.” Many people use the terms interchangeably or confuse them for one another when in-fact they each have entirely different meanings. To help resolve the confusion, we will discuss the difference between the two.
In its simplest definition, “at-will” is a common-law doctrine that defines an employment relationship between an employer and employee in which the employer has the right to terminate the employee at any time with or without cause and for any reason. Similarly, the employee is free to quit employment at any time without cause or for any reason. The doctrine also allows employers to increase or reduce wages, alter benefits, or otherwise change employee terms and conditions of employment at-will.
With the exception of Montana, all states have adopted the at-will doctrine. Some states, although they have adopted the at-will doctrine, require employers to provide employees notice before changing wages, benefits, and/or other terms and conditions of employment. See State Wage Payment Laws.
In order to escape the at-will doctrine, an employer and employee may entered into an employment contract which designates that the contact may only be terminated due to just cause. Although these types of employment contracts are typically written and signed by both the employer and employee, verbal agreements may also meet the requirements necessary to overcome at-will employment. Moreover, in some states, employee handbooks may be sufficient as well to overcome the at-will protections offered to employers. Collective bargaining agreements also typically trump employer’s at-will employment rights.
In addition to an employment contracts, there are both federal and state laws that limit an employer’s at-will employment rights. These laws protect employees from adverse employment actions, up to an including termination, based on many various factors, which can vary from state to state. These factors include, but are not limited to:
- National origin
- Military service
- Union affiliation
- Marital status
- Age (typically 40 and over)
See The At-Will Presumption and Exceptions to the Rule for more information on the at-will doctrine.
The term “right-to-work” is often confused as meaning that an individual has the right to gainful employment. The reality is right-to-work refers to whether a union and employer can agree to compel all employees in a designated bargaining unit to pay dues or assessments to the union. The National Labor Relation Act, the federal law that governs union-employer relationships, permits unions and employer to compel all employees in a designated bargaining unit to pay dues or assessment to the union, regardless of whether they choose to be members of the union.
To counter the authority the NLRA gives employers and unions to bind even unwilling employees, twenty-four (24) states have passed what are referred to as “right to work” laws. These laws prohibit employers and unions from compelling employees to pay dues or assessments if the employees choose not to do so, even if the union represents the bargaining unit of which the employees are members.
Below are states that have and have not passed right-to-work laws.
|Idaho||District of Columbia|
|North Dakota||New Hampshire|
|South Carolina||New Mexico|
|South Dakota||New York|
It is essential for employers and employees to understand the difference between “at-will “and “right-to-work”, and whether they apply to their situation. Additionally, to help reduce potential liability issues, employers and human resource professionals must understand and comply with their state laws associated with these legal terms. If you are unsure about your obligations related to at-will or right-to-work issues, it may be beneficial to consult with an employment-law attorney to help.
Contributed by Suzanne Mathews