I often hear employers utter variants of the following in one conversation: “Well, this is an at-will state, so I can fire them if I want,” later followed by “Like I said, this is a right-to-work state, so I can fire them any time!” However, these two terms are not interchangeable or related. As North Carolina is both an at-will and right-to-work-state, it is important to delve deeper into the meanings of these terms to ensure proper usage and understanding.
At-Will
At-will employment is the norm in American workplaces (except in Montana and Puerto Rico) and means that employment relationships may be terminated by either party for any reason or no reason, so long as the reason is not prohibited by law or agreement (like an employment contract or collective bargaining agreement). However, at-will employment does not equal an employment free-for-all, and there are multiple considerations employers must make to a) ensure the at-will nature of their employment relationships and b) safeguard their termination decisions.
Firstly, refrain from implying employment contracts in your oral representations, offer letters, or employee handbooks. Courts utilize these conversations and documents to establish employment contracts employers do not intend and/or do not want. Use precise language and do not guarantee employment for any amount of time, unless a position specifically requires it (e.g. is temporary in nature).
Secondly, before separations, consider state and/or federal discrimination or retaliation provisions. This is imperative in protecting your company should a terminated employee allege violations of a provision which would negate any at-will contentions. This also includes considering possible separations in violation of public policy, a common law mechanism NC courts utilize to disavow the at-will doctrine when an employee is fired for engaging in a public good worthy of protection, like reporting professional violations to a licensing board or refusing to falsify safety records. The following are a list of common statutes and statuses to consider when separating an employee in NC:
- Federal: Title VII of the Civil Rights Act, Pregnancy Discrimination Act, the Equal Pay Act, Age Discrimination in Employment Act, Title I of the Americans With Disabilities Act, Sections 501/505 of the Rehabilitation Act, Title II of the Genetic Information Nondiscrimination Act, National Labor Relations Act, Fair Labor Standards Act, Family Medical Leave Act, Whistleblower Protection Act, Occupational Health and Safety Act, Uniformed Services Employment and Reemployment Rights Act, and Fair Credit Reporting Act
- State: Equal Employment Practices Act, Discrimination Based on Sickle Cell Trait or Hemoglobin C Trait, Discrimination Based on Genetic Testing and Genetic Information, Discrimination Based on the Lawful Use of Lawful Products During Non-Working Hours, Discrimination Based on AIDS or HIV Status, Hazardous Chemicals Right to Know Act, Discrimination Based on Jury Service, Discrimination Based on Military Service, Persons With Disabilities Protection Act, Retaliatory Employment Discrimination Act, and Workers Compensation Act
At-will employment comes with its triumphs and its struggles, especially in a state like North Carolina, with a rich tapestry of employment protections. However, the underlying principles of at-will employment remain, where I may fire you if you don’t laugh at my jokes, so long as it’s not pretext for a prohibited (see above) termination.
Right-to-Work
On the other hand, right-to-work laws address the rights of workers to maintain employment either with or without affiliating with or providing financial support to unions. In other words, employees may receive the benefits of a union contract without having to pay their share of dues and fees or they may choose to join the group. Approximately half of US states do not have right-to-work laws governing private sector employers.
However, the Labor Management Relations Act of 1947 authorizes states to enact right-to-work laws to bar union shops, where employees must join and maintain union membership to keep their jobs, and/or agency shops, where employees must pay fees/dues to a union to maintain their employment. Yet, please note that there are exceptions, and that federal labor law and policy allows for agency and union shops and covered rail and air carriers may enter into union shop agreements.
Although NC is not a heavily unionized state, NC General Statutes §§ 95-78-84 delineate the state’s public policy regarding right-to-work, expressly prohibit union and agency shops, and provide a mechanism by which aggrieved parties (those having been denied either employment or the continuation thereof) may pursue damages.
As at-will and right-to-work employment issues can be complicated and confusing, contact Soule Employment Law Firm at 984-242-0771 to bolster your comfort levels with these topics.
Legal Disclaimers: Jenny Sweet is licensed in the state of North Carolina. This article discusses general principles of North Carolina and federal law. It should not be considered legal advice for a particular factual setting and does not create an attorney-client relationship.