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ARTICLES:

Employment AT-WILL
Its meaning and history

NOTE: If you have a contract of employment, or are a union member or government worker, you might not be an “at-will” employee, no matter what the employer says, and you may need a lawyer’s help to figure out your proper status.

Whether or not you are “at-will”, you may have lots of legal rights arising from your employment or the termination of your employment. In fact, sometimes “at-will” employees have more rights than those with contracts under certain laws.

You may be wondering what the term “at-will” really means.

Employers often put the term “at-will” in your employment documents of various types. I often get calls from people who just got fired, and who asked the employer for the reason, and the employer told them something like this: “I don’t have to have a reason to fire you, because you’re an at-will employee and I can fire you for any reason or no reason.”

There is such a thing as “at-will” employment, but it doesn’t mean what your boss might tell you it means.

In this article, I hope to give you some insight into what it really means to say you are an “at-will” employee.

Background about the “at-will” master-servant employment relationship.

Employment “at-will” is a legal term that goes way back, at least to the 1800s, to explain the relationship between employers and their free workers. Historically, employees who were neither indentured servants (bound to serve for a set time to pay off a debt), nor slaves, were free to quit if they wanted.

Likewise, the employer was free to fire employees for any reason good or bad. Sometime in the 1800s people began to sue their employers for various reasons. The courts began to write opinions using the “at-will” phrase to describe the freedom enjoyed by the employer and employee to end the employment at any time.

20th Century limits on employers’ freedom to fire employees.

Then in the 1900s, Congress and many states began to pass laws which placed limits on the freedom that employers have to fire employees.

For example, it violates the discrimination laws when employers fire employees because of their race, gender, etc., or fire employees in retaliation for certain things, and many other reasons that constitute wrongful terminations.

Avoiding problems with slavery and infringing the freedom of association.

The courts also became concerned about turning the employment relationship into a form of slavery. That’s why courts will not force an employee to stay at work if he wants to quit. So employees are free to quit at any time.

However, if the employee had a contract which was violated by quitting, there may be penalties to pay or contract damages owed to the other party.

But we all have an interest in our freedom to associate with whom we please. That’s why courts are reluctant to force employers to re-hire a wrongfully terminated employee, if the employer strongly resists re-hire. So, both the employee and employer are free to end the relationship at any time.

But there may be penalties to pay, contractual damages to pay, or even legal damages under the discrimination and wrongful termination laws.

Working definition of “employment at-will”.

The most common way in which the term “employment at-will” is used is as follows: You are “at-will” if you lack an employment contract (or union contract) that limits the employer’s right to fire you, or you are not a government employee with mandated job protections. If the employer terminates an “at-will” employee wrongfully, the employee may be able to collect damages.

In modern times, under “employment at-will”, there are many legally wrongful terminations, and you have the right to sue your employer if the real reason he fired you was one of the protected reasons. These protected reasons are often lumped together and called “exceptions to the ‘employment at-will’ rule.” I have a lot of material on this site that touches on wrongful termination-related issues. See my articles on wrongful termination, retaliation, and discrimination for more information.

Miscellaneous info:

Get a Service Letter

Even if you are an “at-will” employee, you can force the employer to give you a written explanation of the   true  reason for your termination by properly requesting a “service letter.” See my service letter article for an explanation of how to do this, along with a printable request form.

Some law books still use the “master-servant” phrase to describe the employer-employee relationship

You might find it interesting that in the law, the employer has long been known as “master” and the employee as “servant.” Today, those terms have nothing to do with either slavery or indentured servitude. The “master-servant” phrase is still in use in modern law books. Go to a law library and look in the law books called “Missouri Digest” and you will see that job-related court decisions are still being grouped under the “Master-Servant” heading.

Article written by | Tim Willoughby


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Timslaw.com Missouri Employment Law

Maintained by Attorney Phil Willoughby
Founded by Tim Willoughby, Esq. (1959-2013)

Phil is a Missouri employment lawyer who is licensed to practice in Kansas and Missouri, and primarily takes cases in Saint Louis and Kansas City. He is a member of the Missouri Bar Association and Kansas Bar Association. Additionally, he has practiced in the United States Federal Courts of Missouri in St. Louis and Kansas City. He has also practiced in the Kansas Federal District Court in Kansas City, Kansas.

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Phil Willoughby, Attorney
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