At-will Employment - Statutory Exceptions

Statutory Exceptions

Although all U.S. states have a number of statutory protections for employees, most wrongful termination suits brought under statutory causes of action use the federal anti-discrimination statutes which prohibit firing or refusing to hire an employee because of race, color, religion, sex, national origin, age, or handicap status. Other reasons an employer may not use to fire an at-will employee are:

• for refusing to commit illegal acts – An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
• family or medical leave – federal law permits most employees to take a leave of absence for specific family or medical problems. An employer is not permitted to fire an employee who takes family or medical leave for a reason outlined in the Family and Medical Leave Act.
• not following own termination procedures – often, the employee handbook or company policy outlines a procedure that must be followed before an employee is terminated. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful termination.

Examples of federal statutes include:

• Equal Pay Act of 1963 (relating to discrimination on the basis of sex in payment of wages);
• Title VII of the Civil Rights Act of 1964 (relating to discrimination on the basis of race, color, religion, sex, or national origin);
• Age Discrimination in Employment Act of 1967 (relating to certain discrimination on the basis of age with respect to persons of at least 40 years of age);
• Rehabilitation Act of 1973 (related to certain discrimination on the basis of handicap status);
• Americans with Disabilities Act of 1990 (relating to certain discrimination on the basis of handicap status).
• The National Labor Relations Act provides protection to employees who wish to join or form a union and those who engage in union activity. The act also protects employees who engage in a "concerted activity". Most employers set forth their workplace rules and policies in an employee handbook. A common provision in those handbooks is a statement that employment with the employer is "at-will." In 2012, the National Labor Relations Board, the federal administrative agency responsible for enforcing the National Labor Relations Act (NLRA), instituted two cases attacking at-will employment disclaimers in employee handbooks. The NLRB challenged broadly worded disclaimers, alleging that the statements improperly suggested that employees could not act concertedly to attempt to change the at-will nature of their employment, and thereby interfered with employees’ protected rights under the NLRA.
• In 2012, Region 28 of the National Labor Relations Board, located in Arizona, attempted to outlaw the practice of including at-will employment disclaimers in employee handbooks by finding such at-will provisions unlawful under the National Labor Relations Act. Arizona Region 28 case - American Red Cross Arizona and Lois Hampton addressed the Unlawful waiver of NLRB rights and a second case, Hyatt Hotels Corporation and Unite Here International Union, addressed the Settlement of claims.
• In addition to being fired based on status in a protected class (e.g., race, gender, etc.), employers are not allowed to retaliate against any protected action. "Protected actions" include suing for wrongful termination, testifying as a witness in a wrongful termination case, or even opposing what they believe, whether they can prove it or not, to be wrongful discrimination. In the recent federal case of Ross v. Vanguard, Raymond Ross successfully sued his employer for firing him due to his allegations of racial discrimination.