In almost every state in the United States, at will employment is the standard – insomuch as “at will employment” is an employment agreement between the employer and employee that employment can be terminated by either the employer or employee for any reason at any time, so long as the reason is lawful. Indeed, termination of at will employment cannot be based on discrimination and it cannot be done for no reason at all. In practice, most often, this kind of employment arrangement generally provides greater control and negotiating power to the employer than the employee.
Although at will employment is generally the default, it can be modified by contract in writing between the employer and employee. For example, a C-suite executive might engage in an employment agreement for a fixed employment term and with fixed reasons that he or she can be fired – in other words, termination “for cause.” These “for cause” reasons can include performance misgivings or even criminal offenses, such as embezzlement or fraud. When these terms are provided for in a written employment agreement, it is easy to see how narrowing the terms can be to the termination opportunities available to the employer.
Because the at-will employment presumption is widely held and rather strong, it can be very difficult for an employee to overcome that presumption and prove that any other illicit, illegal reason drove the employer’s decision to terminate. For this reason, public policy exceptions have been carved out by the states, and of course, illegal discrimination and retaliation reasons can be advanced by an employee where appropriate.
In 2021, former New York City Mayor Bill DeBlasio signed legislation that caused a major shift in at will employment for fast food workers. This legislation, which became effective in July 2021, prohibits employers of fast food restaurants/franchises from terminating employees or substantially reducing their working hours without “just cause.” The legislation defines “just cause” as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.” This legislation does not apply to employees who are subject to a probation period, which cannot exceed 30 days from the first date of work. This legislation was prompted by the termination of a fast food worker in 2018 for not smiling – yes, that was the reason given – although the worker noted that there were no customers to smile at in the Chipotle chain. Subsequent to this termination, the foregoing legislation was birthed, and with it, greater protections to the employee were created. The legislation has been the target of various lawsuits by employers’ groups and associations to try to unravel its effects. But for now, it is the law of NYC and will provide immense protection for the tens of thousands of fast food workers.
Disclaimer: The information contained in this post is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls and communications. Contacting us, however, does not create an attorney-client relationship.
