At will employment: What it is and why it can be dangerous for employees

At will employment is a kind of employment many Americans are stuck with, whether they like it or not. At-will means that the employer can dismiss the employee at any time, for just about any reason (barring a handful of termination causes that are illegal in the US).

This type of employment is a far cry from unionized work, wherein employees are typically protected by a collective bargaining agreement that ensures they can only be fired with “just cause.” Just cause can be hard to prove, which is why it’s a common joke that union workers, no matter how lazy or incompetent at their job, are difficult to get rid of. That’s not to say union workers are actually lazy—they just have far less to fear if they choose to be, as opposed to people stuck with at-will employment. This is what you must know about at will employment. 

What you can’t be fired for under at-will employment

We’ll start with this list because it’s far shorter than the near-infinite list of things you can be fired for as an at will employee. Here are the things you can’t (in theory) be fired for, regardless of what kind of employment you occupy.

  • Discrimination. Any termination made on the grounds of discrimination is illegal. This means you can’t be fired for anything mentioned in federal, state, and local anti-discrimination laws. Federal laws explicitly state that no one can be discriminated against either in hiring or firing on the basis of race, religion, sex, or national origin. State and local laws sometimes take things further by adding additional protected classes.
  • Pregnancy. The Pregnancy Discrimination Act of 1978 takes the “discrimination based on sex” clause mentioned above a step further by extending that law’s protection to pregnant individuals.
  • Age. According to The Age Discrimination in Employment Act of 1967, as long as an employer has 20 or more employees (in order to qualify them as an employer in this context), they can’t fire someone age 40 or older solely on the basis of age.

These are the big ones, but again, the law extends further on the federal, state, and local levels, so do research on the laws in your area to see a full list of what you can’t be fired for. Remember, though, that these laws don’t always do their job in protecting at-will employees, because it can be hard to concretely prove things like discrimination. This brings us to our next talking point.

What you can be fired for under at-will employment

Does the boss think you’re “not really gelling” with the rest of the team? Does he or she find the way you dress “lewd and offensive?” Did you forget to say hello to said boss this morning? Any and all of these grievous offenses can net you a job termination under at-will employment. You’re not protected from anything, including the wrath of your boss if they had a bad morning and want to take out their frustrations by firing a random employee.

While this sounds bad, and it is, it gets worse when you consider that employers can dance around antidiscrimination laws if they’re smart about it. Instead of them saying you’re fired because they found out you practice a certain religion, they’ll just say your work performance has been slacking and you’re coming in below their expectations. It’s that simple.

The Society for Human Resource Management has an interesting article arguing that employers of at-will employees don’t have it quite that easy when it comes to firing people, due to the risk of incurring retaliatory lawsuits. However, this point is somewhat undone by the article’s opening story, detailing a CEO of a consulting firm who fires at-will employees whenever he wants, for whatever reason he wants. As of the article’s 2017 publication date, that CEO had never been sued by a former employee.

This boils down to the simple fact that most people just don’t have the money or time to lawyer up and go after a malicious termination lawsuit, especially if they’re now unemployed and need to use said money and time to find a new job before they become homeless. Plus, the odds of winning a lawsuit waver wildly from case to case, so going all-in on litigation isn’t always a prudent choice.

At will employment pitfalls

Barring the legal element, then, what’s actually stopping bosses with unlimited power from stomping on every at-will employee? Very little, but wise employers know it’s bad for morale if everyone on a team is constantly paranoid about being fired. If an employee is spending every second walking on eggshells rather than thinking about how to improve the company as a whole, progress will stagnate and the business’ bigger picture will die in favor of keeping one boss feeling good about themselves in a never-ending game of “The Emperor’s New Clothes.”

A Forbes article mentions this as their central thesis for why at-will employment is bad. In article author Liz Ryan’s eyes, employees driven by fear rather than confidence are going to make up a less productive, creative, and worthwhile workforce.

Ryan makes a fair point, though it hinges on bosses being self-aware and good at their jobs—something current research indicates is not the case. A 2018 study illustrated evidence that the Peter Principle (the idea that employees will be promoted to a role one notch above their level of competence) might be true after all, meaning a lot of bosses out there are incompetent and bad leaders. In other words, trusting that your at-will employment is safe in the hands of your boss could very well be a naive pipedream.

At will employment, in summary

At will employment is, for many people, an unfortunate inevitability. Most Americans aren’t in a position to be picky and wait indefinitely until a cozy union position opens up, meaning many hardworking folks will bite the bullet and become at-will employees just so they can put food on the table.

It’s not an ideal way to live life, though, so if you’re one of the people forced to choose between at-will employment and unemployment, just make sure the boss you’ll be reporting to is sane, competent, and fair… or that you have a nest egg built up for a wrongful termination lawsuit.