At-Will Employment & Wrongful Termination

Let's Talk Legal

Let’s talk about ‘at-will’ employment. In the Untied States there are 49 states that have this doctrine, the only exception is Montana. The concept is that it represents freedom for both the employer and employee when it comes to ending the employment; with a simply ‘goodbye’. There is no requirement for giving notice by either party. Let me say that again, there is no requirement of notice.

Montana has a Wrongful Discharge From Employment Act (WDFEA), which only applies to the first six (6) months of employment (MT Code Sec 39-2-901). After no more than a six-month probationary period, it would allow an employer to discharge an employee for either poor behavior or performance.

What qualifies for ‘at-will’ termination? It means an employee can be dismissed for any reason, if it is not an unlawful reason. So, that means, for any reason, bad, good, fair or unfair.

Let’s talk about ‘unlawful’ reasons. Employees do have rights under ‘at-will’, wrongful termination happens when an employer illegally fires an individual by violating employment laws or public policies. Not discussed above are workplace agreements which generally are for exempt roles.

Let’s break down discrimination and employment laws associated with:

Protected Classes
Religion
Age (40 years or older)
Disability or Genetic
Race, Color, and National Origin
Sex (includes pregnancy, gender identity, and sexual orientation)

Equal Employment Opportunity Commission (EEOC) – Enforces federal laws that protect employees and job applicants from workplace discrimination and harassment based on protected characteristics.

Americans with Disabilities Act (ADA) – Prohibits discrimination against qualified individuals with disabilities and requires employers to provide reasonable accommodations, unless doing so would create an undue hardship.

Age Discrimination in Employment Act (ADEA) – Protects employees and job applicants who are 40 years of age or older from discrimination in hiring, firing, promotions, compensation, and other employment decisions.

Civil Rights Act, Title VII – Prohibits employment discrimination based on race, color, religion, sex, and national origin. Applies to employers with 15 or more employees.

What you need to know to prove discrimination:

An employee must show that a protected characteristic was the motivating factor that caused their employer's decision to fire them. To do this, it begins with the employee establishing they are a protected class. What occurred at the workplace where they suffered an adverse action. Finally, that the employer's stated reason is a cover-up or pretext for the actual reason for termination.

Documentation:

Suspicious Timing - being terminated days after requesting a reasonable accommodation or filing a complaint for harassment, etc.
Disparate Treatment - able to prove that similarly situated employees outside of your class are treated more favorably for the same conduct the employer states you did.
Direct Evidence - proof in verbal or written form of the comments or communication that directly reference your protected status. Derogatory or slang comments, nicknames on your time card, etc.
Shifting Reasons - documentation from your employer that gave inconsistent or contradictory reasons for your termination.

There needs to be evidence that the discrimination that reflects the dismissal was illegal for one of the following: race, color, religion, sex, national origin, age, disability, or genetic information. An employee can file a claim through the Department of Labor to bring charges or an employment attorney.

Example: Martha informed her employer that she was 5 months pregnant. She was terminated three weeks later for company layoffs, however no one else in the company was laid off.

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