FIRING AT-WILL EMPLOYEES: LEGAL LIMITATIONS

By Bob Joyce, Professor of Public Law and Government, University of North Carolina At Chapel Hill & Drake Maynard, Faculty, School of Public Health, University of North Carolina at Chapel Hill

So what?  What does it mean to be an employee at will?  It means that you can be fired at any time, for any reason or no reason, with notice or without notice.  It means, as a legal matter, that your job hangs by the barest thread, subject to being snipped at any moment, with no recourse.  It means, as a practical matter, that the employer holds all the cards in the employment arrangement.

But there is one more element to the law of employment at will:  yes, it’s true that an at-will employee may be fired for any reason or no reason.  But even an employee at will may not be fired for an unlawful reason.  The law puts in place some protections against dismissal even for at-will employees.

This blog post lists the unlawful reasons.  If an employer fires an employee for any reason not listed here, the law of employment at will likely prevails, and the employee is out of luck.  But if one of these reasons is behind the dismissal, the employer has acted unlawfully and the employee may have legal protection.

Protections under federal statutes

Federal statutes provide protections to at-will employees, both in the private sector—businesses and non-profits above a minimum number of employees—and in government.

• Race.  Under Title VII of the federal Civil Rights Act of 1964 (42 U.S.C. §§ 2000e et seq.), it is unlawful for an employer to dismiss you (or to discriminate otherwise, such as in hiring, promotions, or compensation) because of your race.  This protection applies fully to at-will employees.  You can go to the Equal Employment Opportunity Commission and file a charge of discrimination.  The EEOC will investigate your claim and, perhaps, make an effort on your behalf to reach an accommodation between you and your employer.  If that effort fails, you will be issued a right to sue letter and you can take the employer to court.  The effort and expense may be too great, but the legal remedy is there if you can take advantage of it.
• Sex.  Title VII protects you against dismissal—or other discrimination—on account of your sex just as it does on account of your race.  The statute uses the term “sex.”  In common usage today, however, the term of choice is usually “gender.”  For this purpose, the terms are equivalent.
• Religion.  Title VII protects you against discrimination on account of your religion.  If you can’t work on Saturday because of religious beliefs, the employer is required to make an effort (but not go to great expense) to accommodate your religious need rather than simply fire you.
• National origin.   Title VII does not use the term “ethnicity,” but it gets at the same notion by protecting you against dismissal on account of your national origin.
• Color.  The fifth, and final, protected characteristic under Title VII is “color.”  It correlates closely with race, of course, but it is not the same thing.  The protection could apply, for example, if a light-skinned African American employer discriminates against a dark-skinned African American employee because of that employee’s color.
• Age.  Three years after enacting Title VII, Congress passed the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq..  It prohibits dismissal—or other discrimination—on account of a person’s age, once that person reaches 40.  It is not unlawful to dismiss an employee who is 35 because that employee is too old, but it is unlawful to dismiss someone who is 41 for being too old.  Go figure.  When the ADEA was first passed, its protections ended at age 65, and employees were often subject to mandatory retirement at that age.  After a few years the age limit was raised to 70, and then the upper limit was removed altogether.  It is not unlawful to fire an older worker because she can no longer adequately perform the job, but it is unlawful to fire her just because of her age.  The ADEA is administered through the EEOC, as Title VII is.
• Disability.  In 1990, Congress passed the Americans With Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq.  The ADA covers many kinds of situations in addition to employment, but its application to employment is its main feature.  You may not be fired because of an impairment—mental or physical—that substantially limits you in a major life activity.  And the ADA requires an employer to make an effort to accommodate your disability (perhaps at substantial expense).  It is unlawful to dismiss you because of your disability or because the employer doesn’t want to make the accommodation.  The ADA is administered through the EEOC.
• Sexual orientation.  The EEOC has in recent years begun interpreting Title VII as outlawing discrimination on the basis of sexual orientation or transgender status.  This development is relatively new and the courts have not yet endorsed it.  Its status remains unsettled.
• Genetic information.  The most recent federal statute is the Genetic Information Discrimination Act, 42 U.S.C. 2000ff et. seq.  It prohibits discrimination against you because of genetic information about you or information about your family medical history.
• Military service.  With some limitations, your employer cannot fire you because you enter military service.  The Uniformed Services Employment and Reemployment Rights Act, 39 U.S.C. §§ 4301 et seq., so provides, and also requires that, within limitations, the employer must hold a job for you when you get back from service.

Federal constitutional protections in public employment

Protections that stem directly from the United States Constitution apply only to employees of the government—state or local—and not to employees in the private sector.  How come?  Because the Constitution acts to constrain how government acts.  That is, it describes the relationship between citizen and government.  It does not directly control how private entities act.  When the government becomes an employer and hires you to work for it, you don’t stop being a citizen.  Two relationships exist at once—employer/employee and government/citizen.  When the government acts against you in the way that any employer might act—say, by firing you—the protections that you enjoy as a citizen may affect the legality of the employer’s action.  Employees in the private sector do not have these protections.

• Free speech.  When you go to work for the government, one protection that follows you as a citizen is the right to free speech embedded in the First Amendment.  That right is not absolute, but if you believe you were fired because of what you said on a matter of public concern, you can pursue the matter with a lawsuit.  The court will balance your interests in speaking out against the governmental employer’s interest in getting the job done without unreasonable disruption.
• Religion (again).  The First Amendment also protects individuals in the free expression of their religion.  When you go to work for the government you have the full protection of Title VII, described above, but you also have this constitutional protection and, if you believe your dismissal was based on their religion, you may sue directly under the constitution, in addition to pursuing your Title VII remedy.
• Unreasonable searches.  The Fourth Amendment protects individuals against unreasonable searches and seizures.  If a governmental employer looks through your desk drawers or computer-usage records, or demands urine or blood for a drug test, and fires you for what it finds (or because you refuse to go along with the search), the possibility exists that you may sue under the Fourth Amendment.

Protections under state law

Every state has enacted protections against dismissals that are supplemental to the federal protections.  They vary from state to state.  The list here is based on the law in my home state, North Carolina.  The list in your state is likely similar.  And in some states, municipalities may have the authority to enact protections through ordinances.

• Workers’ compensation, wage and hour, and mine safety claims.  Under North Carolina law, it is unlawful for your employer to fire (or otherwise to adversely treat) you because you file a workers’ compensation claim or testify with respect to the claim of another employee.  The same is true with respect to wage and hour claims under state law and to claims under the state’s mine safety law.
• Sickle cell.  You may not be fired (or otherwise adversely treated) you because you possesses the sickle cell trait or hemoglobin C trait.
• National guard service.  You may not be fired (or otherwise adversely treated) you because you serve in the National Guard.
• Genetic information (again).  Under North Carolina law, as under GINA, discussed above, you may not be fired because of genetic information about you or a family member.
• Pesticide use.  You may not be fired because you pursue your rights under the state statute on the regulation of the use of pesticides or testify with respect to the claim of another employee.
• Drug paraphernalia sales.  You may not be fired because you refuse to sell certain products banned by the state statute controlling sales of drug usage products.
• Juvenile order compliance.  You may not be fired because you attend a court proceeding or take other actions that a court may order in cases where your child is under the jurisdiction of the juvenile court for delinquency.
• Domestic violence protection.  You may not be fired if, with reasonable notice to the employer, you have to take time off work to obtain, through the judicial system, a domestic violation protection order or civil no-contact order.
• How you vote.  If you work for the government in North Carolina, you may not be fired for how you cast your vote.
• Serving on election day.  As long as you give proper notice to your employer that you will be absent, you may not be fired because you agree to serve as a precinct official, appointed by the county board of elections, on election day.
• Whistleblowing.  The North Carolina Whistleblower’s Protection Act protects employees of the state, of community colleges, and public schools from dismissal for reporting violations of law, fraud, misappropriation of resources, specific dangers, and gross mismanagement by their employers.  It does not apply to other governmental employees or to employees in the private sector.
• The public policy wrongful discharge tort.  If I, the employer, fire you, my employee, because you refuse to do something that would violate the public policy of the state, I have committed the tort of wrongful discharge and you can sue me.  If you win, you don’t get your job back, you get money from me to compensate you for your lost job.  Here is an example:  I fire you because you testify against me in court, truthfully, in response to a subpoena.  It is the public policy of this state that everyone is to tell the truth in court.  I can’t get away with firing you because you won’t lie in court.
• Sexual orientation.  Many states have laws barring employment discrimination on account of sexual orientation or transgender status.  My state is not one of them.  Yours may be.

Learn more from Bob and Drake in their upcoming GMS webinar The Basics of Employment Law and Human Resources Practice On December 2nd.  Click here to register.