Employment "at-will" provides maximum workplace flexibility for employers in exercising managerial discretion over employees. An individual is classified as at-will if the employee is hired for an indefinite duration and may quit, or be fired, at any time, with or without notice. At-will employment also allows employers to adjust the terms of employment at any time, for any reason, and without legal consequences. Within the United States, state courts articulate exceptions to the employment at-will doctrine on a case-by-case basis.
This procedural framework provides little stability or predictability in the workplace. Employers and employees are subject to the vagaries of state court determinations, which contravenes principles of procedural fairness and workplace democracy that have long been present when a collective bargaining representative advocates for its members.
The at-will regime places employees at risk and largely discourages them from making internal complaints regarding suspect or inequitable policies and procedures, based on the reasonable fear of termination without cause. A just cause standard for dismissal would, by contrast, provide more predictability for both employers and employees and would eliminate the vagaries of state court determinations in evaluating claims of wrongful termination and retaliation.
Under the at-will regime, it may be virtually impossible for employees to prove a legal violation as an exception to employment at-will, since employers remain the custodians of the essential information. Just cause protections shift the applicable burden of proof from the employee to the employer: under a just cause standard, the employer may only discipline or discharge an employee for a legitimate, provable reason.
This article examines the legal landscape of the at-will employment regulatory scheme compared to a just cause requirement in the context of state and municipal statutes that have carved out specific exceptions to provide greater employee protection. Local governments implement such ordinances to protect vulnerable workforce populations from economic hardships caused by substandard working conditions, abusive workplace practices, and pervasive unjustified firings. Such local statutes have survived preemption challenges under the National Labor Relations Act, as well as legal challenges under the Dormant Commerce Clause.
Montana remains the only state that is not an at-will employment state, enforcing a good cause standard for termination. Other states have carved out just cause exceptions through specific statutory remedies for public employees — for example, Connecticut General Statute §7-278 imposes just cause principles in the dismissal of a police chief, requiring written notice of the specific grounds for dismissal and an opportunity to be heard.
New York City has become, in effect, a laboratory for such local ordinances. In December 2020, the City Council amended the Fair Workweek Law to enact the Wrongful Discharge of Fast Food Employees law, which took effect July 4, 2021 and protects employees of large fast-food chains from arbitrary terminations and reductions in hours absent employee misconduct or a bona fide economic reason. The statute also provides procedural protection for redressing employer violations through arbitration.
For neutrals and counsel, these overlapping frameworks underscore the importance of identifying the controlling source of authority — ordinance, statute, civil service rule, or collective bargaining agreement — before evaluating any dismissal dispute. The applicable standard of review, burden of proof, and available remedies all flow from that determination.
Mark J. Berkowitz, J.D., is an arbitrator and mediator based in Fort Lauderdale, Florida, serving parties in labor, employment, and workplace disputes in person and virtually.