WHAT DOES EMPLOYMENT AT WILL MEAN AND WHEN CAN I CHALLENGE MY TERMINATION IN COURT?

By: Jake Modla, Esq.

“AT WILL” EMPLOYMENT DEFINED

In South Carolina and North Carolina, the relationship between an employee and his employer is “at-will”. “At-will” employment means an employer is free to terminate an employee at any time for any reason, including a good reason, a bad reason, or no reason. The only exception is that an employee cannot be fired for an illegal reason. “At-will” employment also means an employer can change the terms of the employment relationship with no notice and no consequences. For example, the employer can reduce your pay, change your scheduled work time or shift, or reduce the amount of vacation time offered.

EXCEPTIONS TO “AT WILL” EMPLOYMENT

1. Employees with employment contracts: The “at-will” employment relationship can be modified when a contract of employment is entered into between the employee and his employer. Employment contracts can provide for a specific length or term of employment, for example a two-year employment period; or the employment contract may only allow for termination of the employee for “cause”. “Cause” typically includes reasons such as poor performance, employee misconduct, or economic struggles of the employer. If an employer terminates an employee in violation of one of the provisions of the employment contract, the employee can challenge the termination in a breach of contract lawsuit.

2. Termination in violation of public policy: Some “at-will” employees who are terminated can challenge their employer’s decision if the reason for the termination violated public policy. Terminations that violate public policy include: 1) an employee terminated for refusing their employers order or directive to do something that violates state law, for example an employers request that an employee lie to an OSHA inspector; 2) an employee terminated for reporting a violation of the law by their employer, for example reporting an employers fraudulent sales practices or use of child labor; or 3) exercising a statutory right, for example filing a claim under the state worker’s compensation laws.

3. Illegal Discrimination: Federal and state discrimination statutes prohibit employers from making termination decisions based on an employee’s race, color, religion, sex, pregnancy, national origin, age, disability, or veteran status. These laws protect workers from being terminated because of their membership in these protected classes. In other words, Pete’s boss can fire him because he failed to follow safety rules in the manufacturing plant, but Pete’s boss cannot fire him because he is African American.          

4. Retaliation: Retaliation is another statute-based exception to “at-will” employment. Federal and state law protect employees who are fired in retaliation for engaging in protected activities. Protected activities include being a witness or testifying on behalf of another employee in their discrimination lawsuit, reporting minimum wage or overtime pay violations, engaging in union activities, or engaging in concerted activities- two or more employees going to management and complain about working conditions.

The employment lawyers with Cromer Babb & Porter are available in South Carolina and North Carolina to help you review the facts of your termination and determine if you can sue your employer for an illegal termination.

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