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A Risky Employer Right

Through the turn of the 20th Century, employers had the unqualified right to hire and fire anyone, “at will,” for any reason.  With the exception of Montana, the “at will employment” concept is proclaimed to survive in every American state as the right of either employer or employee to terminate an employment relationship for any or no reason at any time, with or without advance notice.  It’s a simple enough doctrine, in theory.

The realities of unequal bargaining power between management and rank-and-file workers have significantly eroded the scope of “at will” over the past century.  For example, the 1935 National Labor Relations Act banned terminating employees due to union membership or other pro-union support.  At the same time, organized labor’s growing influence established standing employment contracts in key industries that required “good cause” justification for a union member’s termination.

The landmark Civil Rights Act of 1964 signaled further (and overdue) protections against management’s unquestioned abilities to end employment relationships, making it illegal to terminate for the race, sex, national origin or religion of the worker. The Act’s principle of “protected classifications” benefitting from prohibitions against discrimination has since grown to cover an extensive list under federal and state laws.  These include the federal Age Discrimination Employment Act protecting employees 40-plus years old and the U.S. Americans with Disability Act similarly shielding disabled workers.

Thus, while “at will” is still the presumed employment relationship in California and most other states, termination for “any reason” no longer means what it did 100 years ago.  Termination for “any reason except those found by Congress, a state legislature or the courts to be an illegal reason” would be more accurate.