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Editor: Neil B. Gailmard, OD, MBA, FAAO
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Employment At-Will: What Does It Mean in Your State?
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October 11, 2017
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I often hear optometrists say they practice in an employment at-will state. This is generally taken to mean that an employer may dismiss an employee for any reason, or no reason at all, and without warning. Most of us have looked up our own state or another specific state to determine if it is employment at-will and it seems like it always is. Even California, which is a very employee-friendly state, describes itself as employment at-will. It turns out that all states are employment at-will, so you can stop looking them up and stop worrying about it (although Montana has a slightly different approach that I’ll describe below).
There are some exceptions to at-will employment in every state, however, and these exceptions vary somewhat from state to state. I will explain the exceptions below, but these are mostly just common-sense factors that you already know. Knowing which states have what exceptions does not usually matter because ODs should not violate any of them anyway.
As readers of this column are aware, I like to keep things clear and simple and I hope you find that useful, but I should note that I’m not an attorney and you should not rely on this article for legal advice.
The employment at-will doctrine
The reason the basic premise of employment at-will is accepted as policy in virtually all states is that it applies equally to both employers and employees. An employee certainly does not have to give a reason in order to quit. To me, that makes the policy fair. However, there are valid reasons why employees need some protection against malicious or illegal acts by employers and those are defined in the exceptions.
Exceptions to employment at-will
Here is a simple overview of the exceptions that exist about firing employees for any reason. Some of these are federal law and exist in all states, while others are in effect only in some states. Most of these exceptions are already well accepted in our society or seem like common sense to most people, but it is important for employers to understand and follow the law. Most optometrists will not find these exceptions very difficult to abide by.
• Statutory exceptions. This just means that an employer may not fire an employee if it would violate a federal law. Major examples are the various laws that prohibit discrimination toward a protected class, such as race, color, religion, sex, national origin, age, or handicap status. Employers do not need a reason to fire someone as long as the reason is not one of these items.
• Public policy exception. Similar to the exceptions above, but it can be pursued at the state level. You can’t fire someone if it violates public policy. An example is that you can’t fire someone for refusing to commit a crime.
• Covenant of good faith. You can’t fire someone for malicious reasons, such as the employee sues you or reports you for some wrong-doing and you fire him for that reason. This exception could also be claimed if you gave consistently great reviews and then fired him or her for no reason.
• Implied contract exemption. This exception could apply if you gave an employee a special contract or if your employee manual specifies how and why a person can be dismissed. The contract can be verbal if you told someone they would not be fired. In other words, the employer can override employment at-will.
• Unions and civil service employees. Similar to the contract exemption above, but these workers are not typically found in optometric practices.
• Montana has its own state law that defines wrongful discharge, which includes the exceptions above or a “discharge that was not for good cause (a legitimate business-related reason) and the employee had completed the employer's probationary period (six months unless specified).”
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