At-Will Employment — What It Means, In Plain Words

What “at-will” means in plain words

In plain words, at-will employment is a two-way rule. The employee can end the job. The employer can end the job. Either side can do so at any time, and the reason — if a reason is given — must be a lawful one.

That last part is the whole point of this page. “At-will” does not mean “for any reason at all, even an illegal one.” The sections below print, in the agencies’ own words, the limits DOL and the NLRB state: discrimination on the bases DOL lists is prohibited, whistleblower status and complaints under laws DOL enforces are protected, a private contract or a labor contract can govern the termination, and acting together with co-workers about pay and conditions is protected under the law the NLRB enforces.

What DOL says about termination

DOL opens its Termination page this way: “If you’ve lost your job, you have certain rights, such as the right to continue your health care coverage and, in some cases, the right to unemployment compensation.”

DOL then states its general rule for when a termination is governed only by a contract. The full sentence is printed in the next section, because it names all three protected reasons at once: discrimination, whistleblower status, and a complaint under a law DOL enforces.

Reason one that is off-limits: discrimination

DOL’s Termination page has a section headed “Equal Employment Opportunity (EEO).” It states: “Prohibits specific types of employment discrimination. Collectively, these laws prohibit discrimination in most workplaces on the basis of age, race, color, religion, sex, ethnic/national origin, disability, and veteran status.”

In plain words, the bases DOL lists are:

• age
• race
• color
• religion
• sex
• ethnic/national origin
• disability
• veteran status

That list is DOL’s list, printed exactly as DOL states it. This page does not add to it and does not take anything away from it.

Reasons two and three that are off-limits, and the contract rule

DOL states the full rule in one sentence: “In general, if the reason for termination is not because of discrimination on these bases, or because of the employee’s protected status as a whistleblower, or because they were involved in a complaint filed under one of the laws enforced by the Department of Labor (see Whistleblower and Non-Retaliation Protections), then the termination is subject only to any private contract between the employer and employee or a labor contract between the employer and those covered by the labor contract.”

In plain words, DOL’s sentence does three things:

• It names the protected reasons. A termination may not be because of discrimination on the bases listed above, because of the employee’s protected status as a whistleblower, or because the employee was involved in a complaint filed under one of the laws DOL enforces.
• It names what governs otherwise. If none of those is the reason, DOL says the termination is subject only to any private contract between the employer and employee, or a labor contract between the employer and those covered by the labor contract.
• It is worded as a general rule. DOL begins the sentence with “In general,” and this page keeps that wording. It is a general statement, not a ruling on any one termination.

So a contract matters in DOL’s own framing. DOL does not say on this page that a job with no contract and no illegal reason behind its ending is governed by anything else.

Acting together about pay and conditions: protected concerted activity

The NLRB enforces the National Labor Relations Act. Its page headed “The Law” states: “The National Labor Relations Act protects most employees whether the workplace is unionized or non-unionized.”

The same page states the background this way: “In 1935, Congress passed the National Labor Relations Act (“NLRA”), making clear that it is the policy of the United States to encourage collective bargaining by protecting workers’ full freedom of association. The NLRA protects workplace democracy by providing employees at private-sector workplaces the fundamental right to seek better working conditions and designation of representation without fear of retaliation.”

On what the law protects, the page states: “The law protects the right of employees to engage in protected concerted activities-group action to improve wages, benefits, and working conditions and to engage in union activities and support a union. You also have a right to not engage in protected concerted or union activities.”

In plain words: the protection is not limited to union workplaces. Workers who are not in a union, acting together about pay, benefits, or working conditions, are covered by the protection the NLRB describes, and workers also have the right not to take part.

Protected concerted activity, in the NLRB’s own words

The NLRB’s Concerted Activity page states the right, its examples, its limit on the employer, the single-employee rule, and the way protection can be lost, all in one passage:

“You have the right to act with co-workers to address work-related issues in many ways. Examples include: talking with one or more co-workers about your wages and benefits or other working conditions, circulating a petition asking for better hours, participating in a concerted refusal to work in unsafe conditions, openly talking about your pay and benefits, and joining with co-workers to talk directly to your employer, to a government agency, or to the media about problems in your workplace. Your employer cannot discharge, discipline, or threaten you for, or coercively question you about, this ‘protected concerted’ activity. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.”

The NLRB’s Protected Concerted Activity page states the same protection and what the Board does about it: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”

Section 7 and Section 8(a)(1), in the NLRB’s own words

The NLRB’s page on interfering with employee rights states the starting point: “Employees have the right to unionize, to join together to advance their interests as employees, and to refrain from such activity. It is unlawful for an employer to interfere with, restrain, or coerce employees in the exercise of their rights.”

It then quotes the Act: “Section 7 of the National Labor Relations Act (the Act) guarantees employees ‘the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,’ as well as the right ‘to refrain from any or all such activities.’”

And it states the employer-side rule: “Section 8(a)(1) of the Act makes it an unfair labor practice for an employer ‘to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7’ of the Act.”

On threats, the same page states that an employer may not: “Threaten employees with adverse consequences if they engage in protected, concerted activity. (Activity is ‘concerted’ if it is engaged in with or on the authority of other employees, not solely by and on behalf of the employee himself. It includes circumstances where a single employee seeks to initiate, induce, or prepare for group action, as well as where an employee brings a group complaint to the attention of management. Activity is ‘protected’ if it concerns employees’ interests as employees. An employee engaged in otherwise protected, concerted activity may lose the Act’s protection through misconduct.)”

On job actions, the same page lists as something an employer may not do: “Discharge, constructively discharge, suspend, layoff, fail to recall from layoff, demote, discipline, or take any other adverse action against employees because of their protected, concerted activities.”

If the job ends: health coverage, unemployment, and severance

DOL’s Termination page states the health-coverage point this way: “Upon termination of employment, some workers and their families who might otherwise lose their health benefits have the right to choose to continue group health benefits provided by their group health plan for limited periods of time.” DOL names the Consolidated Omnibus Budget Reconciliation Act (COBRA) and the Health Insurance Portability and Accountability Act (HIPAA) as the laws under which employers may be required to provide certain notices to their employees.

On unemployment, DOL states: “Workers who are unemployed through no fault of their own (as determined under state law), and meet other eligibility requirements, may be eligible to receive unemployment benefits.” It adds: “Unemployment insurance payments (benefits) are intended to provide temporary financial assistance to unemployed workers who meet the requirements of state law.” And: “Under the Federal-State Unemployment Insurance Program, each state administers a separate unemployment insurance program within guidelines established by federal law.”

On severance pay, DOL’s Severance Pay page states: “Severance pay is often granted to employees upon termination of employment. It is usually based on length of employment for which an employee is eligible upon termination. There is no requirement in the Fair Labor Standards Act (FLSA) for severance pay. Severance pay is a matter of agreement between an employer and an employee (or the employee’s representative).” That page also points readers to answers from the elaws FLSA Advisor for the question of how severance pay is calculated and when it is due.

Veterans’ reemployment rights

DOL’s Termination page states: “Protecting the employment rights of veterans is a responsibility of DOL’s VETS. VETS protects service members’ reemployment rights when they are returning from a period of service through its administration of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).” VETS is DOL’s Veterans’ Employment and Training Service.

State laws vary

State laws vary. This page is a federal page: every rule on it comes from the DOL and NLRB pages listed below, and it prints no state rule and no state-by-state table.

DOL’s own page shows one place where state law enters even a federal topic: unemployment eligibility turns in part on state law, in DOL’s words “as determined under state law,” and each state runs its own unemployment insurance program within federal guidelines.

For a question about a state rule — including how a state treats the ending of a job — go to your state labor department. That is the office that states its own state’s rules. Nothing on this page stands in for what a state labor department says about its state.

What this page does not cover

This page covers only what the DOL and NLRB sources below say, in general, about how a job can end and the federal limits on the reasons. It does not cover any one state’s rule, any one contract’s terms, or any one person’s termination. It does not say whether any real firing was lawful or unlawful — the agencies’ pages state the general rules, and applying them to a real case is not something this page does.