Employment At Will or Right To Work – Making the Distinction

In Tennessee, which is both an “employment at will” state and a “right to work” state, these two terms are very often confused. Once you understand the meaning of each term, I think you’ll find it easy to use them correctly in the future.

Employment-at-will means that both the employer and the employee are in their employment relationship voluntarily, and both are free to terminate the relationship at will. To the employer, this means that they can terminate any employee any time they want, with cause or without, with notice or without, and are under no obligation to even provide the employee with a reason for their termination. Now, all of us know that employers do have restrictions placed on them by law which prevent them for terminating employees because of their membership in a class protected by law (race, gender, etc.[1]). Likewise, if there is a written employment agreement, that may trump that at-will nature of the relationship. Another legal protection is what is commonly referred to as “whistle blowing.” The Tennessee Public Protection Act (TPPA)[2] prohibits the termination of an employee because that employee reported, or failed to participate in, illegal or unethical behavior that violates public policy[3]. Absent one of these three issues, an employer is free to terminate an employee because they want their nephew to have the job, or because they don’t like the color of the employee’s shoes. It doesn’t matter. If the basis for the termination (or failure to hire, or failure to promote) is based on anything other than the three exceptions noted above, the employer is free to use whatever rationale they choose, or no rationale at all. That’s what “at will” means.  The employer is under no obligation to be fair. Two questions I hear a lot are whether someone can be terminated for doing something they didn’t actually do, or if they have never received any type of disciplinary action. The answer to both is that there is no requirement for employers to treat employees fairly, or nicely, or logically.

The employee, too, is free to terminate the employment relationship any time they choose, for any reason or no reason at all. An employee has fewer restrictions. They can quit because their boss is Asian, or because their co-worker has only one arm and seems to work too slowly. Pretty much the only thing that prevents an employee from terminating an employment relationship at will, without consequences, is a written employment agreement that binds them to certain terms. Very often employees do not see themselves as free to “just quit” when they are being treated badly. They need the job, and they’re not confident that they can find another comparable, or better, job if they quit. However true this assumption may be, in the eyes of the law an employee who doesn’t like their job can quit. Period.

“Right to Work” is an altogether different concept. Right-to-work states are those where a person is not obligated to join a union in order to work. They have the right to work without being compelled to join a union. This topic is currently making headlines because the National Labor Relations Board (NLRB) is suing Boeing to try and prevent them from taking  some manufacturing operations to South Carolina. South Carolina is a right-to-work state, whereas Washington (Boeing is based in Seattle), is not. Boeing maintains that, as a private employer, they are free to base their manufacturing operations wherever they choose. The NLRB, on the other hand, is claiming that Boeing is guilty of unfair labor practices by taking  the jobs out of Washington. The NLRB is a federal agency that primarily advocates on behalf of unions, so their interest is in keeping Boeing in Washington and out of a right-to-work state like South Carolina. The NLRB claims that Boeing is retaliating against the union employees by moving to a state where the employees are not free to strike under the union banner. It’s fascinating if you’re into this stuff like I am. If you want to follow the story, just Google NLRB and Boeing and you’ll get your fill of stories from both sides.

So, if you’re talking about the right to fire an employee, or the employee’s right to quit, that’s employment-at-will. If you’re talking about union labor, that’s right-to-work. Don’t you feel smarter? Remember that nothing written above, which is meant to reach a broad audience of readers, should be construed as legal advice or an accurate restatement of any law. Consult an attorney (namely me) for legal advice pertaining to your unique circumstances.