What is At Will Employment?
At will employment is the default employment relationship in all states except Montana. At will employment means employees can resign or be fired for any reason, with a few exceptions. The general rule is that termination needs to be legal and not involve retaliation or discrimination of any kind by the employer. Additional legal protections include termination in violation of public policy or in retaliation for whistleblowing.
Montana has unique laws that offer additional protection for employees during their probationary period. A probationary period, unless defined by the employer, is typically 6-months. Other states have statutory or common law protections that limit the employer’s ability to terminate an employee without cause.
Is At-Will Employment a good idea?
Montana is the only State in the US that offers protection from termination for the employee after their probationary period. A probationary period, unless defined by the employer, is typically 6-months.
Unlawful Reasons for Termination
There is a common misconception surrounding termination for at will employees. At will employees are not left totally unprotected and there are still reasons that are considered unlawful termination. Below are examples of things that would be considered unlawful termination under at will employment:
- Unwillingness to work in an unsafe environment
- Discrimination or anything related to it
- Attempting to negotiate a raise
Are you an at-will employee if you have a contract?
Typically, an employment contract provides additional protections and limitations on termination, but you can still be considered an at-will employee even if you have a contract. Employment contracts typically include a union collective bargaining agreement and a section that specifically addresses termination. The terms of the contract will determine the rights and obligations of both parties, including the conditions under which the employee can be terminated. If you want to see what is typically included in an employment contract, please visit this article.
Since nearly all aspects of employment are negotiable, employees that are in high demand will negotiate their employment contracts to protect them from termination without cause. There are no set rules for the content of employment contracts, so it is up to the employer and employee to negotiate the exact terms of their relationship.
Below are terms that are routinely negotiated during employment:
- Whether your employment is At-Will vs. Fixed-Term
- Compensation Structure
- Job Duties
- Outside Employment
- Non-Compete Clause
At Will Employment States
Currently, all States except for Montana are at-will employment States. Montana’s Wrongful Discharge From Employment Act was created to ‘balance the need to protect employees from wrongful terminations with an employer's need for protection from employee poor performance or bad behavior’.
According to the WDFEA, an employee can only be terminated for good cause after a probationary period. The goes further in saying that if an employer does not clearly establish a probationary period, the default will be 6-months from the date of hire. During the probationary period, the employment can be terminated by either the employee or employer at any time.
Do I need to give notice for at-will employment?
At-will employees do not need to, and are not required to, give notice when terminating their employment contract. Most employees provide a resignation letter or oral notification when they intend to terminate the employment relationship.
What are good ways to avoid legal complications?
The best way an employer or employee can avoid legal complications is to:
- Document Everything
- Address Terms Upfront
Document Everything
When possible, get everything in writing and make sure you use clear and concise language.
Address Terms Upfront
While the excitement of perspective employment may be hard to overcome, it is important to address terms upfront so the terms and conditions of the employment are clearly outlined.
If you need to create an employment contract for you or your team, ContractsCounsel can help. We have a team of lawyers who have been vetted and work in over 30 different industries. Contact us today to find out how we can help.
