Can your employer fire you without a warning for something they let you do in the past?
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UPDATED: Feb 6, 2020
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Everyone knows some employment “horror stories” that happened either to them, a friend or co-worker —where an employee was fired seemingly without any cause or justification. Maybe you have read about the multi-million-dollar judgments won by a worker challenging his or her firing. The reason for this is that in the United States, all employment is “employment at will,” except to the limited extent discussed below.
As the term employment at will implies, an employee at will works at the will—or whim—of the employer. An employer may fire an employee at will at any time, for any reason, without notice. To put it quite simply, an employee at will has no automatic right to his or her job.
Exceptions to Employment at Will
There are a couple important exceptions:
1) Is there a written employment contract (including a union or collective bargaining agreement) which has terms guarantying a job or limiting discipline and termination? If so, the contract’s terms or provisions will govern and must be honored by both parties.
2) Is there illegal discrimination going on—e.g. under federal law, is one employee being treated worse because of his or her race, color, national origin, sex, religion, age over 40, or disability? Some states add other protected categories, like sexual orientation or family status.
The important thing in this regard is that ONLY those categories covered under state or federal laws are protected. An employee may be terminated for any other reason. For example, in this age of strong (and sometimes vitriol) political feelings and disagreement, it pays to not discuss politics at work. Your employer can fire you because of who you support, or your views on hot-button issues There is no protection against discrimination based on political views. Only those few specifically defined categories are protected from discrimination at work.
Other than as set forth above, all employment is “employment at will.” Since employment at will is literally “at will” and completely at the employer’s discretion, an employer may fire someone for behavior that the employee was previously allowed to do. You may be fired today for something you did yesterday; past permission to do something does not give you a continuing right to keep doing it. And worse: even if you have suspended the now-prohibited behavior, you can still be fired because you did it in the past. Put bluntly, your boss can decide to terminate you for something you did weeks, months, or even longer ago. Remember: “at will” means AT WILL. Shocking as it may be, you could be fired for giving away a Game of Thrones spoiler to a manager who hasn’t seen the latest episode yet.
If you feel that the circumstances of your firing may be illegal, you should consult with an employment attorney (or talk with a union official if you belong to a union).