Historically, there have been different types of labor agreements in the United States. In the private sector, which dominates the country’s economy, so-called labor agreements at-will prevail. They are used in all states except Montana. At-will employment contracts are also used in state organizations and institutions.
The doctrine of employment at-will has been developed by judicial practice. It is based on the free will of the parties, rather than a guarantee of employment. The essence of this provision is that the employer has the right to fire the employee at any time, without any grounds and even without notifying the employee of the reasons for such a decision. For example, an employer may terminate an employee’s employment in order to reduce payroll costs, reduce payroll due to reorganization or changes in the company’s operations. It is also possible that the employer does not need such highly qualified specialists at a given time, and certain work functions can be performed by less qualified workers with lower wages.
Cases of termination, when there are no claims against the employee by the employer, should be distinguished from termination for cause (termination for cause). For the most part, it is termination at the employer’s initiative due to the employee’s breach of work discipline, failure to perform or inadequate performance of work duties, or violation of the law. An at-will employment contract means that the employer may, without prior notice to the employee, change working conditions: work schedule, wages, vacation time and pay, the provision of benefits, and so on. This is a significant difference between U.S. labor law and most countries, where there must be a reason for firing an employee by the employer’s initiative. When an employee is hired in the USA, there is no need to specifically state that there is an at-will contract – American employment law proceeds from the presumption of this contract.
The employee, in turn, has the right to tell the employer in writing that he is leaving “as of tomorrow” or in two weeks, or to specify another date. Employees usually try to notify their employer in advance of their desire to quit, as they are interested in maintaining a good relationship with the employer, as they may need positive recommendations to present at the new place of employment.
If the employment contract does not specify the period of employment, it means that it is concluded for an indefinite term and the employee is hired permanently. If the contract stipulates that the employee can be dismissed only in case of violation of labor discipline or failure to perform or improper performance of his functions (fired), the obligation to prove this rests on the employer – otherwise the court will decide to reinstate the person at work and pay compensation to him. Such a contract, according to many lawyers, is an at-will contract, but not a pure at-will labor agreement.
Judicial practice has developed as an exception to the doctrine of employment at-will the doctrine of protection of the labor rights of an employee acting in the public interest (public policy). Thus, an employee cannot be fired for absenteeism if the reason for not coming to work was the fact that he was a witness in a criminal or civil case or was a member of a jury, etc.
Particular attention should be paid to layoffs. Since the employer does not have to prove the necessity of layoffs, the task of an attorney who is approached by an employee who believes that he was unfairly dismissed is to check whether the layoff was just a pretext and whether the actual reason for the dismissal was discrimination or a desire to retaliate for criticism, displeasing the employer with suggestions, complaints, etc.
For example, K., a highly qualified network engineer whose specialty is among the most sought-after in the U.S. labor market, found a more promising job and notified his administration in writing that he would be fired in two weeks. This deadline was based on his agreement with his new employer, as well as on ethical considerations (so that the employer could prepare a replacement). The next week, K. was handed a check with one week’s pay and a notice that he had to quit his job after one week, not two weeks, as he had expected.