By: AJ Esral, Esq.

            “This employment is at-will, which means either party can terminate it at any time, for any reason, or for no reason at all.”

            This is a standard clause that we routinely draft in employment agreements, and iterate in handbooks, in big, bold letters. And at-will employment is a staple of today’s job market, offering both employees and employers freedom of mobility.  When our clients call to confirm that they can fire a particular at will employee, they often quote back to us: “After all, I can fire an employee ‘for no reason at all,’ right?”

            The thing is, at will employment is not exactly at-will. Yes, technically you can terminate the employment for no reason, but be honest – when is the last time you did anything for no reason at all?  When people make a decision, there’s always a reason.  Practically speaking, nobody terminates an employee for no reason at all.

            And that’s where things get sticky.

            Because while there are any number of legitimate reasons to want to terminate someone—bad work product, attendance, or because they wear blue jeans that remind you of the hours spent fruitlessly trying to find Waldo, to name a few—there are a few bad reasons to terminate someone, reasons that are illegal and could get you in trouble.

            Here are the main offenders:

1. Discrimination Based on a Protected Class

            This is probably the most well-known exception to at will employment. You can’t discriminate against someone based on a legally protected characteristic, which a person’s race, religious beliefs, gender, gender identity, sexual orientation, age (typically 40+), or disability, to name a few of the more prevalent ones. You can discriminate on the basis of wearing blue jeans, which is not, as of yet, a protected characteristic.  (Although in Maryland, hair texture and hairstyle are.)

            Importantly, if the job requires a specific protected characteristic, then you may qualify for a narrow exception to the discrimination laws, called a BFOQ – a bona fide occupational qualification.  Indeed, Title VII (the basis for all anti-discrimination law) explicitly writes that it is not unlawful to discriminate on the basis of religion, sex, or national origin “in instances where [those are] reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C.A. § 2000e-2. So, for example, the EEOC has allowed the use of same-sex counselors in the treatment of special-needs clients at a social agency. Equal Emp. Opportunity Comm’n, EEOC Dec. No. 76-130 (1976).

In a similar type of carveout, the Supreme Court has established a “ministerial exception” which bars ordinary discrimination claims. In other words, for ministerial employees of an institution—rabbis, Catholic schoolteachers, youth program leaders, and the like—the court won’t ever reach the merits of discrimination claims at all, deferring to the religious institution to decide on any position that serves one of said institution’s core functions. See, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012); Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732 (2020).

            But if you don’t have a legitimate and plausible reason to exclude a member of a protected class, then be careful. You can still fire them, but you need a good non-discriminatory reason—or you risk the expense and distraction of having the employee file a complaint with the EEOC.              

And it is important to keep in mind that even if you may fire someone for anon-discriminatory arbitrary reason, like disliking their blue jeans, that still doesn’t mean that you should fire them for an arbitrary reason.  It’s still bad practice because it invites scrutiny and damages overall credibility and employee morale. Even though you will prevail on the employee’s EEOC complaint, you would be better off avoiding the complaint in the first place.

            Here are a few more bad reasons to fire someone.

2. Retaliation

            It’s illegal to fire someone for:

• complaining about harassment or discrimination within the workplace,
• participating in an investigation, or
• requesting an accommodation.

And if you come up with a plausible alternative reason to fire them (“Sorry, but you’re just not a good culture fit.”), but do so shortly after they did one of the above, then it will still look like retaliation, which will work against you if they ever file a claim.

3. NLRA violations

            Most employers don’t know about this, but the National Labor Relations Act (NLRA) prohibits firing someone for engaging in a “protected concerted activity.” This is when employees act, or seek to act together to talk or lobby about their working conditions, such as:

• Wages,
• Hours,
• Safety,
• Scheduling, or
• Policies 

            So, you can’t fire someone for discussing pay with their coworkers, or for talking about unionizing. And this can be a bit of a hot wire, because you can’t either fire someone for talking assertively to (read: cursing out) their supervisor about working conditions. In a recent Second Circuit opinion, for example, the court upheld the NLRB’s order finding an employee’s discharge unlawful when the employee posted an expletive-laden message on Facebook attacking a supervisor for speaking to him harshly in a heated debate about unionizing. See NLRB v. Pier Sixty, LLC, Nos. 15-1841 (2d. Cir. 2017).

4. Wage and Hour Retaliation

            This is another big one.

            It’s very tempting when an employee asks too many questions about overtime, FLSA classification, missed breaks, or payroll errors to just show them the door. It makes for bad policy and workplace morale.  And it’s unlawful.

5. Leave Protections

            Some absences from work are legally protected.

            Think FMLA (for employers with 50 or more employees), pregnancy-related leave, or disability or military leave. It does happen that someone who is on legally-protected leave should be fired, for whatever reason (and often having nothing to do with performance, such as a general reduction in force). But timing the termination so that it coincides with the date they are supposed to return from FMLA leave is legally reckless. One of the main points of FMLA leave, and anylegally-sanctioned leave, frankly, is to protect an employee’s job while they are out.

            In sum, at-will employment is not entirely at-will. There are some wrong ways to discharge at will employees that are against the law, and employers should be careful to have a legally cognizable reason behind every termination of employment, supported by meticulous documentation.

            If you want to discharge an employee and find that the circumstances are less pristine than that, let’s talk.

            At Luchansky Law, we help employers understand when and how to handle discipline and discharge decisions.  If you find yourself in a situation that would benefit from our guidance, shoot me an email at aj@luchanskylaw.com, or call me at 410.522.1020.  I would be happy to guide you through it.