The Difference Between the Terms “At-Will” and “Right-to-Work”

Some legal terms can be confusing, 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 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.

What Does At-Will Mean?

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 at any time without cause or for any reason.

The doctrine allows employers to increase or reduce wages, alter benefits, or otherwise change employee terms and conditions of at-will employment.

With the exception of Montana, all states have adopted the at-will doctrine.

Although some states have adopted the at-will doctrine, they still require employers to provide employees notice before changing wages, benefits, and/or other employment agreements and conditions of employment.

To escape the at-will doctrine, an employer and employee may enter into an employment contract that designates the contract may only be terminated due to just cause.

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.

In other states, an employee handbook may be enough to overcome the at-will protections offered to employers.

Collective bargaining agreements also typically trump an employer’s at-will employment rights.

In addition to 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, including termination, based on many various factors. These factors can vary from state to state.

 These factors include, but are not limited to:

  • Race
  • Religion
  • Sex
  • National origin
  • Military service
  • Union affiliation
  • Marital status
  • Whistleblowing
  • Disability
  • Age (typically 40 and over)

Check The At-Will Presumption and Exceptions to the Rule for more information on the at-will doctrine.

What Does Right-To-Work Mean?

The term “right-to-work” is often confused as meaning that an individual has the right to gainful employment.

The reality is that right-to-work refers to whether a union and employer can agree to compel all employees in a designated bargaining unit to pay union dues or assessments to the union.

The National Labor Relation Act, the federal law that governs union-employer relationships, permits unions and employers to compel all employees in a designated bargaining unit to pay dues or assessment to the union, regardless of whether they choose to have union membership.

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” employment law.

These laws prohibit employers and unions from compelling employees to pay dues or assessments if the employees choose not to do so.

The same is true 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:

YesNo
AlabamaAlaska
ArizonaCalifornia
ArkansasColorado
FloridaConnecticut
GeorgiaDelaware
IdahoDistrict of Columbia
IndianaHawaii
IowaIllinois
KansasKentucky
LouisianaMaine
MichiganMaryland
MississippiMassachusetts
NebraskaMinnesota
NevadaMissouri
North CarolinaMontana
North DakotaNew Hampshire
OklahomaNew Jersey
South CarolinaNew Mexico
South DakotaNew York
TennesseeOhio
TexasOregon
UtahPennsylvania
VirginiaRhode Island
WyomingVermont
Washington
West Virginia
Wisconsin

www.nrtw.org/rtws.htm

FAQs

1. How can I guarantee that I am an at-will employee?

Check your documents; you’re most probably one unless the papers say otherwise.

Part of being an at-will employee is the recognition that termination is possible at any given time. That said, negotiations with any prospective employer are encouraged.

2. For employers, what are the pros and cons of having at-will employees?

In business operations, advantages of at-will employment include having more legroom for flexibility.

Operations will be a bit more nimble because the steps required in contract negotiations are lessened or even completely eliminated, especially come renewal time.

That said, the resources of the business can be allocated more for other important operational undertakings, such as augmenting income.

Not having several contractual obligations also allows more room for adaptation, which was seen to be beneficial when the COVID-19 pandemic hit.

Another advantage is getting to keep and promote employees based on their own track performance and merit, not because of longevity in the business.

The termination process will also be easier and faster since an employee can be dismissed on the spot when there is cause for termination.

On the other hand, the disadvantages are seen when there are drastic staffing changes, such as when there are shortages.

Employees can suddenly quit without being obligated to give notice.

Also, there are businesses that find difficulty attracting and retaining talents due to at-will employment.

That includes other operational deterrents, such as hesitation among at-will employees to speak up regarding crucial issues, perhaps out of fear they can be dismissed any time.

This only deters productivity and hinders employees from contributing good suggestions and decisions for the company.

3. To what extent should I scrutinize my employment contract?

Any employment contract is crucial and binding as an agreement between you and your employer. It usually has basic job duties.

Before being employed, it is best to do your research about non-disclosure agreements, non-compete agreements, exclusive employment, and the like.

It is also beneficial, especially if your employment involves invention, to discuss ownership rights.

4. How can I best simplify what the right-to-work principle means?

Simply put, the principle serves as a guiding concept for all Americans to have the right not to belong to any union or union shop.

You may join a labor union, but you also have the right not to be forced.

Conclusion

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 experienced employment lawyer to seek legal advice.

Contributed by Suzanne Mathews
 

Employment Law Updates

Laws change in a moment.

Sign up to stay informed.

Visiting on behalf of:

Have employees in more than one state? SUBSCRIBE HERE!

THANK YOU FOR SUBSCRIBING!

We hope you find our newsletters help you better navigate employment and labor law issues.

Employment Law Updates

Laws change in a moment.

Sign up to stay informed.

Visiting on behalf of:

Have employees in more than one state? SUBSCRIBE HERE!

THANK YOU FOR SUBSCRIBING!

We hope you find our newsletters help you better navigate employment and labor law issues.