Are you familiar with Right To Work laws?  Do you know what Employment At Will means?  Many people don’t fully understand these concepts and I’ve heard people misuse these terms all the time with me.  So, what the heck is the difference anyway?  Read on…..

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Right To Work means that an individual cannot be forced, as a condition of employment, to join a labor union nor pay dues to a labor union.

Employment At Will means that an employer can fire you, at any time, for any reason (that isn’t illegal under state or federal law) or as an employee you can also quit your job, at any time, for any reason.

These definitions seem easy enough on the surface but there are actually several things you need to know about each.

Right To Work

Q:  Don’t all U.S. employees have the “right to work” without joining a union?

A.  Not exactly.  It is true that no employee in the U.S. can legally be required to be a full-dues-paying, formal union member.  However, while the Taft-Harley Act of 1947 outlaws the “closed shop” concept (which is when an employer can only hire union members) and section 14(b) allows states to pass right to work laws against union-security measures to supersede the federal law, in many states an employee can still be forced to pay certain union dues or be fired from his/her job.

Q: What about Right to Work States?

A.  In Right To Work states workers are given a choice when it comes to union membership.  Employees covered by Right To Work laws can’t lawfully be required to pay any union fees to keep their jobs.  However, not all employees who work in a state with a right to work law are necessarily covered.  Right to work laws specifically do not protect railway and airline employees nor do they protect employees of private-sector contractors on some federal properties.

Q. Which states are right to work states?

A.  As of August 2018,  28 states and Guam have passed right to work laws.  Click here for a  list of right to work states.  *Please note, legislation is constantly changing so you may wish to confirm with a labor relations attorney for the latest legal developments.

Employment At Will

Q. aren’t all u.s employees considered at-will employees?

A.  Not exactly.  Every state except Montana has the right to adopt at-will employment policies and while it is generally presumed you are an at-will employee you may be able to prove otherwise in certain situations.  This is the reason many employers include employment-at-will statements in their offer letters, handbooks, policies and reiterate the message during the hiring and on boarding process.  The at-will default can be modified by a contract, both written or implied and there are also a few exceptions to the employment at will default that include public policy and a covenant of good faith.

Q: Do I have to sign an at-will agreement or acknowledgment?

A. You never have to sign any document that you are uncomfortable with, however, refusing to sign such a document doesn’t mean that you won’t be considered an at-will employee by default.  And, in many cases, the courts have upheld the employer’s right to fire (or refuse to hire you) if you do not sign such a document.

Q: is it ever illegal to fire someone who is considered an at-will employee?

A: Employment at will does not override the federal and state obligations employers have when it comes to termination practices.  Businesses with 15 or more employees are prohibited from discriminating against people in protected classes and can’t fire you because of your age (over 40), race, gender, ethnicity, veteran status, genetic information, religion, disability, etc.  Likewise, employers cannot fire you in retaliation for complaining about illegal activity, discrimination, harassment or health and safety violations.  Additionally, you can’t be fired if you exercise your legal rights such as taking leave covered under the Family and Medical Leave Act, for serving in the military, serving on a jury or voting.

As you can tell, employment law and employment-related guidelines can be very complex.  It is important to know your rights, the expected behaviors and any consequences whether you are an employer or an employee.  Understanding the expectations on both sides definitely helps the employee/employer relationship and prevents misunderstandings.

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Reality Check

Employers:

• Have you included the proper employment at will statements in your offer letters, policy acknowledgments, employee handbook, application and other employee documents?

 

• Do you know if your employees are covered under the right to work laws?

 

• Do you understand all the risks associated with firing an employee?

 

• Are you aware of the things you should avoid saying to a potential candidate or new employee that would create an implied employment contract?

 

• Do you know when you should use an employment contract?

 

If you answered NO to any of the questions above or need help navigating the complexities of being an employer, Who’s Your HR? can help!  I’m happy to answer questions, provide coaching, training, templates, and tools or even create customized solutions to help you make wise hiring and employment decisions.

Who’s Your HR? is available to assist you with HR consulting, contract or project work.  Please review the Solutions and Service page or find my contact information in the menu to the left of this article.

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