The difference between at-will employment and right-to-work laws

A common misconception I see, especially online, is confusion about the difference between right-to-work laws and at-will employment. People often mix the two up, but in reality, these are two very different things. I am not an employment law expert by any means, but hopefully I can help clear up these misconceptions and help people understand the difference between these two concepts!

Starting with at-will employment, simply put, at-will employment means that an employer can generally fire an employee without warning and for any legal reason or even no reason at all. Employees are also generally free to quit at any time and for any reason. At-will employment became popular in late 19th century, although throughout the twentieth century states began enacting more and more exceptions to at-will employment.

Legal reason is a very important part. What a lot of people online often are confused about is that even where employment is at will, you can’t be fired (or have any other adverse employment action taken against you) for certain illegal reasons. Prohibited reasons generally include: discrimination based on race, gender, religion, disability status, etc.; retaliation against an employee for taking FMLA leave; retaliation against an employee for refusing to do something illegal or for reporting illegal conduct to the police or a regulatory agency like OSHA; retaliation against an employee for asserting other legal rights such as suing their employer (including for wrongful termination), testifying as a witness in a wrongful termination case, etc.; and other public policy exceptions that vary by state. Of course, it can be difficult to prove that the termination was unlawful. While federal law does create some nationwide rules regarding what you cannot be fired for, the exact exceptions to at-will employment vary from state to state. Of particular note, some states have broader anti-discrimination laws than those under federal law.

If an employee is fired for an illegal reason, they likely have legal remedies such as a wrongful termination lawsuit, the ability to file a complaint with the government, etc. However, the exact remedies, requirements to get those remedies, etc. vary from state to state and often case to case (sometimes they can be fact specific). So if you think you have been wrongfully terminated (or have had other adverse action taken against you by your employer), you should research the specific laws of your jurisdiction and should consider consulting a reputable attorney from your jurisdiction that specializes in employment law.

Every state except one is an at-will state. In Montana, the default rule is technically still at-will employment, but in Montana, employment becomes for-cause after a probationary period (for-cause employment means termination requires a just cause, which means your employer needs a good reason to fire you). In Montana, employment is at-will during a new employee’s probationary period.

Even in a state where the default rule is that employment is at-will, that default rule can be modified via a contract or union rules that require a good reason for the termination. For cause employment is also common for a lot of public sector jobs.

At-will employment has both pros and cons. One common criticism of it arises from the unequal bargaining power between employers and employees. Others praise it and credit it as a reason for the strength of the US economy. A full discussion of the pros and cons of at-will employment is best left for another article.

Some people accidentally refer to the concept of at-will employment as right-to-work. But right-to-work laws are completely different. Simply put, according to Wikipedia, “the term right-to-work laws refers to state laws that prohibit union security agreements between employers and labor unions. Such agreements can be incorporated into union contracts to require employees who are not union members to contribute to the costs of union representation.” Basically, these laws aim to give an employee a right to abstain from joining and contributing to a union if they so choose.

According to Wikipedia: “The 1947 federal Taft–Hartley Act governing private sector employment prohibits the "closed shop" in which employees are required to be members of a union as a condition of employment, but allows the union shop or "agency shop" in which employees pay a fee for the cost of representation without joining the union. Individual U.S. states set their own policies for state and local government employees (i.e. public sector employees). Twenty-eight states have right-to-work policies (either by statutes or by constitutional provision). In 2018, the U.S. Supreme Court ruled that agency shop arrangements for public sector employees were unconstitutional in the case Janus v. AFSCME.”

Once again, the exact language and contours of a right-to-work law will vary by state. As of writing this article, twenty-six states, and Guam, have right-to-work laws. Other states previously had right-to-work laws, but have repealed them. This includes Michigan, which repealed its law effective this year.

Right-to-work laws have pros and cons. The economic effect of right-to-work laws is not clear and has been debated. A full discussion of the pros and cons of right-to-work laws is best left for another article.

Disclaimer: The contents of this article are for informational purposes only and do not constitute legal advice. This article is not intended to create a lawyer-client relationship.