If you are employed at will, your employer does not need good cause to fire you. In every state but Montana (which protects employees who have completed an initial "probationary period" from being fired without cause), employers are free to adopt at-will employment policies, and many of them have. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.
This article will help you figure out whether you're employed at will, what rights you have as an at-will employee, and what you should do if your prospective or current employer asks you to sign an at-will agreement.
Learn more about Employee Rights.
The law generally presumes that you are employed at will unless you can prove otherwise, usually through written documents relating to your employment or oral statements your employer has made.
Many employers take pains to point out, in their written policies, applications, handbooks, job evaluations, or other employment-related documents, that their employees work at will. If you are currently employed, look through your employment documents -- particularly those you have signed -- to see whether any of them mention at-will employment. If you have signed a document agreeing that you are an at-will employee, that's probably the end of the story.
If you have not signed an at-will agreement, check your employee manual or other written workplace policies. Do they state that you can be fired at any time? That you can be fired without cause? Even if your employer does not use the term "at will," statements that you can be fired without good cause or "for any reason" are indications that your employer follows an at-will policy.
On the other hand, some employers have written policies that require good cause to fire, provide an exclusive list of reasons for which employees can be fired, or otherwise provide employees with some job protections. If your employer has adopted these kinds of policies, you are entitled to rely on them.
Similarly, if you have signed an employment contract that promises job security, you are not employed at will. For example, if you have a two-year contract that states you can be fired during the contract term only for committing a crime, then you are not an at-will employee. If you are fired for any reason not specified in the contract, you may well have a legal claim against your employer for breach of contract.
Has your employer made any statements, either during the hiring process or after, indicating that you will be fired only for good cause? For example, an employer might say, "You'll always have a home here as long as you do a good job," or "We only fire employees who are unable to meet our performance standards, even after coaching and training." In these situations, especially if the comments have been made repeatedly and/or were a big reason you took the job, your employer may not be able to fire you at will.
On the other hand, if you are told during the hiring process or afterwards that you will be an at-will employee, your employer will certainly rely on that statement as proof that it reserved the right to fire you for any reason, if you are terminated and take legal action against your employer.
As an at-will employee, you have the right to quit your job at any time and for any reason. While employers might try to insist that you provide "two weeks' notice" prior to leaving, you are under no legal obligation to do so. However, quitting suddenly could result in a bad reference from that employer.
Additionally, at-will employees cannot be fired for reasons that are illegal under state and federal law. In these situations, the government has decided to make an exception to the general rule of at-will employment.
For example, if your employer is subject to federal and state laws prohibiting job discrimination (as all but the smallest employers are), you cannot be fired because of certain characteristics, such as your race, religion, or gender. (For more information on discrimination, see Your Rights Against Discrimination and Harassment.)
Similarly, you cannot be fired because you have complained about illegal activity, about discrimination or harassment, or about health and safety violations in the workplace (see Nolo's article Assert Your Safety Rights Without Fear of Retaliation).
And you cannot be fired for exercising a variety of legal rights, including the right to take family and medical leave, to take leave to serve in the military, or to take time off work to vote or serve on a jury.
To reinforce their right to fire at will, many employers ask job applicants and new employees to sign a written statement agreeing that they are (or will be) employed at will. Such a statement might appear in an employment application, an employment contract or offer letter that the employer asks you to sign and return, an acknowledgment form for an employee handbook, or elsewhere.
Theoretically, you don't have to sign an at-will agreement—but most courts have held that your employer can fire (or refuse to hire) you for failing to do so. And, even if you don't sign the agreement, the default rule is that employees work at will.
Even though you may not have much choice about signing an at-will agreement, that doesn't mean your employer will rely on it to fire you without a good reason. Savvy employers know that they have nothing to gain by firing employees arbitrarily. Instead, employers are often motivated to work through issues with you before resorting to such drastic measures.
Be wary of signing an at-will agreement if you relied on your employer's promises of continued employment when you decided to accept the job. For example, let's say that your employer promised, during the hiring process, that it would give you at least one year to learn your new job and that you would not be fired during that time. If that promise influenced your decision to take the job, you should not sign an at-will agreement contradicting the promise. Virtually every court will treat a signed at-will agreement as the final word on the subject, no matter what your employer said to you earlier.
If your employer wants you to sign an at-will agreement that seems to undercut its promises, ask about the discrepancy. If the employer stands by its earlier statements, ask that they be put in writing. If your employer refuses to honor its statements or changes its tune, it might be time to talk to a lawyer--particularly if you quit another job on the basis of those broken promises.
For more information on finding and working with a lawyer, see Nolo's article How to Find an Excellent Lawyer.
]]>Handing over your current salary can significantly reduce your bargaining power, but refusing to provide it makes you seem uncooperative and could cost you the job. For some employees, particularly women, this can lead to pay disparities that follow them from job to job. Salary history bans are aimed at addressing this issue.
In most states, employers are free to ask job applicants about their current or prior salaries. However, many states and cities are considering salary history bans that prohibit this practice. So far, more than a dozen states have passed this type of law, including California, New York, New Jersey, Illinois, and Washington. Some cities, such as New York City and San Francisco, have passed similar laws. (To learn about California’s salary history ban, see our article on California equal pay laws.)
Two states, Wisconsin and Michigan, have bucked the trend by enacting laws that specifically prohibit salary bans.
Salary history bans are designed to narrow the pay gap between men and women. Recent studies have shown that the gender pay gap is alive and well. Various studies show that women earned around 80% of what men earn. The pay gap is even larger when taking race into account. African American and Latino women earned around 55% to 60% of what a white male earned.
The federal Equal Pay Act and similar state laws make it illegal for employers to pay men and women different wages for the same work. Despite these laws being on the books for many years, the gender pay gap persists.
Legislators are beginning to recognize that certain practices perpetuate inequality in pay, even if there isn’t necessarily a discriminatory intent. One of these practices is relying heavily on an applicant’s previous pay when setting the salary for a new job. Doing so often causes inequality in pay to follow women from job to job.
A salary history ban prohibits employers from asking applicants about their current or past salaries, benefits, or other compensation. This means employers can’t ask about your current salary on job applications or other written materials or ask you about your salary in an interview.
In some states with salary history bans, employers are allowed to seek salary history information after making a conditional offer of employment with a specified salary. However, if you voluntarily tell a prospective employer about your current or past salary, it is typically free to use that information in setting your pay.
If you live in a state with a salary history ban, you have the right to refuse to answer questions about your salary. Employers may still ask you what your salary requirements or expectations are for the position, though. If you live in a major metropolitan area, you should check with your local government to see if it has a salary history ban.
If your area doesn’t have a salary history ban, you’ll have to do some creative thinking about how best to answer the salary question. One tactic is to ask what the salary range is for the position first, so that you have an idea of whether your current salary is in the ballpark. Another tactic is to delay the salary discussion until you’ve had a chance to interview—and prove your skills and worth.
Sometimes an employer or a recruiter will insist on knowing your current salary in the early stages of the application process. In that case, you should be truthful about your salary, but also mention the value of your benefits package, bonuses, or other perks. Or, you can decline to answer and hope that you’ll still be considered for the job.
If you think you’re being paid less than a male counterpart with similar experience, qualifications, and seniority, you should talk to an employment lawyer. Federal law, and the laws of many states, make it illegal for an employer to pay men and women different wages for the same work.
According to the Equal Employment Opportunity Commission and some (but not all) courts, your prior salary alone is not a sufficient reason to pay you less than a male employee performing the same job.
If you've been asked for your salary history in violation of state law, or you aren't receiving equal pay for equal work, contact an employment lawyer to discuss your legal options. Find an attorney near you by using our Lawyer Directory.
]]>Ban-the-box laws help the estimated 30% of adults with a criminal past get a fair shot at finding work, by encouraging employers to assess their qualifications and skills before denying employment.
At some point in their lives, most people have filled out a standard job application with a set of common questions. One of those questions is: “Have you ever been convicted of a crime? Check yes or no.” Many applicants reluctantly check “yes,” knowing that it often means the end of the application process for them.
Employers often used the question to weed out applicants with a criminal record, without considering the specifics of the crime, how long ago it happened, or what the applicants have been up to since then.
Not surprisingly, those with a criminal past face high unemployment rates. Studies have shown that lack of employment leads to high recidivism rates. In other words, ex-offenders who are out of work are more likely to commit further crimes.
There’s also a concern of racial discrimination. One type of discrimination, called disparate impact discrimination, happens when a seemingly neutral policy disproportionately affects members of a particular race.
Because African American and Latino men are arrested and convicted at disproportionately higher rates than Caucasian men, asking about criminal records has a disproportionate impact on them.
All ban-the-box laws prohibit employers from asking applicants about criminal history on an initial job application. However, some go further, requiring employers to wait until after they have conducted an interview or made a conditional offer of employment before asking about criminal history.
A few laws also impose additional requirements. For example, in California, employers must engage in a multi-factored individual analysis of whether the criminal record justifies denying employment. And, if the employer decides to deny employment based on a criminal record, it must provide the applicant with notice and an opportunity to provide mitigating evidence that lessens the impact of the conviction.
Most ban-the-box laws contain exemptions for security-related jobs and those that require working with children, vulnerable adults, and the elderly.
To date, there is no federal ban-the-box law; these are laws being passed by states and cities. Initially, these laws applied to government employers only. However, more states and cities are passing laws that apply to government and private employers alike.
Currently, 15 states (and the District of Columbia) have ban-the-box laws that apply to private employers. They are:
More than 35 states have laws that apply to government employers. To learn about your state's rules on arrest and conviction records, see our state articles on considering criminal records during employment.
Several cities have their own laws, especially ones in major metropolitan areas. To learn whether your city has one of these laws, contact your local government.
Even in states that don’t have ban-the-box laws, a rigid practice of asking about criminal history and denying employment can violate federal antidiscrimination laws.
As mentioned above, categorically denying employment to applicants within criminal records can have a disproportionate impact on certain racial groups. The Equal Employment Opportunity Commission (EEOC) has warned against this practice, issuing guidelines to follow in order to avoid discrimination. It includes conducting an individualized analysis considering factors such as:
To learn more, see our article on getting hired with a criminal record.
Some states have additional rules that apply to certain types of criminal records. For example, many states prohibit employers from considering sealed or expunged criminal records, arrests that didn’t lead to conviction, or juvenile records. To learn more, select your state from our state articles on considering criminal records during employment.
Because this is a complex area of the law, and the rules vary widely by location, it’s a good idea to consult with a lawyer about your practices.
]]>I ran with a bad crowd when I was a kid, and I have a couple of misdemeanor convictions for alcohol and drug offenses. I've long since cleaned up my act, but I'm concerned that my youthful indiscretions could torpedo my job search.
I'm looking for a retail position, and many of the companies I'm interested in use a standard employment application form that includes a box you have to check if you have an arrest or conviction record. Can they refuse to consider me if I check the box?
Whether an employer can disqualify you based on your criminal record depends on several things. First of all, a number of states limit an employer's right to ask applicants about certain offenses.
Even if an employer has the right to ask about your criminal record, it may not be allowed to consider that history in making hiring decisions, unless the offense is related to the job for which you are applying.
To find out your state's rules on employer use of criminal records, select it from the list in State Laws on Use of Arrests and Convictions in Employment.
If your state's law doesn't limit an employer's right to gather or use this information, federal discrimination laws might. The Equal Employment Opportunity Commission (EEOC) has said that excluding all applicants with a criminal record could discriminate against certain racial and ethnic groups.
The EEOC's guidance to employers who want to ask applicants about their criminal history is to look at each applicant's circumstances, rather than simply disqualifying anyone with a criminal record. To make sure they aren't acting in a discriminatory way, employers should consider the nature and seriousness of the offense, how much time has passed since the offense, and the nature of the job. For example, an employer might reasonably exclude an applicant with a history of identity theft offenses from a job that involves handling confidential customer information.
Unfortunately, not all employers have gotten the memo on how much weight they can place on criminal history in hiring. Many employers use a standard applicant form that asks about criminal records, without giving applicants a chance to explain and without indicating how the company plans to use that information.
This has led to the "ban the box" campaign, an effort to get rid of that question on application forms. Many states have passed laws "banning the box" or otherwise limiting employers' ability to consider past arrests or convictions.
Your best strategy might be to try to seal or expunge your criminal record. Because you were a juvenile when these offenses took place, and they are relatively minor, you may qualify to have your record sealed. The purpose of sealing or expunging records is to wipe your slate mostly clean.
If you apply for a job in law enforcement or you commit a similar offense as an adult, the state can likely still consider your record, even though it is sealed. Otherwise, however, you are generally allowed to act as if these offenses never happened. If you are asked whether you have a criminal record or have been convicted of a crime, you may answer "no." And, you don't have to check the box on application forms that ask these same questions. This could be the surest path to your next job.
If you've been denied a job based on a previous criminal conviction, it's worth looking up the laws in your state to determine whether your employer acted within the law. If your state has "banned the box" or otherwise prohibits employers from considering criminal records in the hiring process, you might have a legal claim against that employer.
In such cases, it's a good idea to contact a knowledgeable employment lawyer to discuss your legal options.
I was laid off from my last job when the company decided to downsize. I received a severance package, and the paperwork said that the company would follow its standard reference policy of giving out only my dates of employment, positions held at the company, and compensation.
I'm looking for a new job, but every time I get to the stage of the hiring process where they check my references, I get turned down. A recruiter told me that my former manager is badmouthing me, telling everyone who calls that he thinks I have a poor attitude and no respect for authority. Can he violate the company's own policy? Is there anything I can do to stop this?
From a legal standpoint, you have a few potential claims that might be available to you. They include:
And if you're not interested in pursuing a case in court, there are steps you can take to try to stop your former manager's behavior.
To prove a defamation claim, you would have to show that your former employer made false statements of fact about you, with malice, and that you were harmed as a result.
Based on the facts you've related, it sounds like you would face a couple of potential problems in making a defamation claim:
Depending on the laws in your state, you might also have a claim for tortious interference with employment. In states that allow this claim, you'd generally have to show that:
If a former employer is trying to sabotage your efforts to find new employment, you might be able to file a claim based on your state's anti-blacklisting law.
These statutes define blacklisting in different ways. Some prohibit only the maintaining of an actual blacklist, while others bar employers from making false statements or taking other steps to stop an employee from getting a job.
Unlike defamation claims, these statutes generally don't require you to prove you suffered actual harm (such as failing to get a job) as a result of the blacklisting.
If you're not interested in going to court, there may be a practical way to shut this manager up. Contact your former employer's human resources department or the person who signed your severance paperwork.
Explain that your former manager is going beyond the company's policy and giving out negative information that is harming your job search. Ask the company to immediately put a stop to this behavior and enforce its standard reference policy.
Even if you would have trouble ultimately winning a defamation claim, your former employer doesn't want to take its chances in court. Companies adopt limited reference policies like this precisely to avoid defamation claims.
Unless there is a broad conspiracy at your former employer to prevent you from ever working again, a brief letter should put an end to this problem. After all, your former employer's goal should be to see you working -- not continuing to collect unemployment (which is charged against its account).
If your former employer is falsely claiming you were fired, or exaggerating the reasons for which you were fired, you can pursue one of the legal claims described above. You can also ask an attorney to draft a "cease and desist" letter and send it to your former company. This will put your former employer on notice that you're taking its lies seriously.
Above all, you should discuss the matter with a knowledgeable employment attorney in your area, who can advise you on the best way to proceed.