This Month Only! >> $20 off and a FREE SHRM tote with your membership and code TOTE2018!
Sign up for free email newsletters and get more SHRM content delivered to your inbox.
Is your employee handbook keeping up with the changing world of work? With SHRM's Employee Handbook Builder get peace of mind that your handbook is up-to-date.
Build competencies, establish credibility and advance your career—while earning PDCs—at SHRM Seminars in 12 cities across the U.S. this spring.
#SHRM18 will expand your perspective – on your organization, on your career, and on the way you approach HR. Join us in Chicago June 17-20, 2018
Protected Behaviors at the State Level
Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.
The common-law concept of “at-will” employment gives employers broad authority to terminate employees for virtually any reason, but federal and state laws carve out important exceptions that, if violated, can lead to a court date.
“The at-will doctrine is alive and well everywhere,” says Peter Petesch, an employment attorney in the Washington, D.C., office of Atlanta-based law firm Ford & Harrison LLP.
Almost every state recognizes at-will employment. Only one state, Montana, sets a higher standard by requiring employers to have a “reasonable cause” for termination.
Even so, says Petesch, the at-will doctrine is not absolute. In fact, it has “been eroded in some places,” he says. Most states and dozens of municipalities have laws that ban discrimination, and many offer greater protection than federal law.
In addition, 29 states and the District of Columbia restrict employers’ ability to fire employees for various forms of off-duty conduct. The most common state statutes protect employees’ right to use tobacco products. Some states extend the protection to alcohol use, too. Rarest are laws found in four states that protect all legal activities away from the employer’s premises.
Employers must do their homework to ensure that planned terminations do not violate any of these myriad laws.
“You really need to check the state law, the Constitution and the case law to see if the termination is lawful,” says Camille A. Olson, SPHR, who chairs the labor and employment practice of Seyfarth Shaw in Chicago.
“The advice I give is don’t stick your nose in off-duty conduct,” says Wayne L. Hersh, a partner at Berger Kahn in Irvine, Calif. “All you do is make [employees] mad and think they have a lawsuit against you.”
When ex-employees do go to court, they usually lose, Petesch notes: “The facts may be compelling, but the firings are not illegal.”
(See Map, "Off-Duty Protection.")
You have successfully saved this page as a bookmark.
Please confirm that you want to proceed with deleting bookmark.
You have successfully removed bookmark.
Please log in as a SHRM member before saving bookmarks.
Please sign in as a SHRM member before saving bookmarks.
Please purchase a SHRM membership before saving bookmarks.
An error has occurred
Recommended for you
HR Education in a City Near You
SHRM’s HR Vendor Directory contains over 10,000 companies