Employees-at-Will: When Can They Not Be Fired At The Employer’s Will?

By Adam J. Shafran, Esq.

Massachusetts, like all other states, follows the employment doctrine known as “employee-at will.” The concept is rather straightforward. On one hand, when an employee is considered an employee-at-will, the employee can choose to leave his or her employment at any time, without advance notice, and without having to give a reason for doing so. On the other hand, the employer can make any negative or adverse decision concerning the employee’s employment, up to and including termination, for any reason or no reason at all, so long as that reason is not an illegal reason. While the foregoing might seem fairly obvious, many employers do not realize the legal protections that an employee-at-will has, and when they are not permitted to terminate an employee-at-will.

So, when is it illegal to terminate an employee-at-will?

First, and foremost, an employer cannot terminate an employee-at-will when the decision to do so is motivated by a discriminatory factor. More specifically, an employee-at-will cannot be terminated based on his or her race, color, religion, national origin, ancestry, sex, age, sexual orientation or based on any genetic factor. An employee-at-will also cannot be terminated based on a disability, which includes not only a prohibition on terminating an employee who has a disability, but it is also unlawful for an employer to terminate an employee based on the employer’s belief or perception that the employee is disabled, even if the employee actually is not. Similarly, an employee can also not be terminated for taking leave under the Family and Medical Leave Act (“FMLA”). Indeed, an employee who takes leave under the FMLA is legally entitled to be restored to the same or an equivalent position upon return to work from FMLA leave.

Courts in Massachusetts have also crafted what has become known as the public policy exception to the employment-at-will doctrine. Under this exception, an employee-at-will cannot be terminated for reporting any type of illegal conduct that the employer has been or is engaged in, or for refusing to engage in any act that the law prohibits. It is important to note however, that in order for an employee-at-will to be protected under this exception it is not enough for an employee to allege that the employer is violating any of its own internal policies or procedures, rather the employee must be able to prove that the employer was violating a law or regulation in order to be protected.

There are also a number of statutory exceptions to the employment-at-will doctrine. Some important exceptions to note are as follows: 1) an employee-at-will cannot be terminated for filing a workers’ compensation claim; 2) an employee-at-will cannot be terminated for testifying in a court proceeding; 3) an employee-at-will cannot be terminated for having to serve jury duty; 4) and an employee-at-will cannot be terminated for inquiring or attempting to ensure that he or she has been paid all the wages that are due.

Finally, for employers who have employees that are paid on a commission basis, there is one additional exception to be aware of. This exception, known as the breach of the implied covenant of good faith and fair dealing, prohibits an employer from terminating an employee who is paid on a commission basis for the purposes of preventing that employee from earning his or her commission that is about to become due.

In conclusion, if you are an employer and are considering making the difficult decision of terminating one of your employees,it is advisable to thoroughly examine your reasons for doing so, to ensure that there are no exceptions to the employee-at-will doctrine that your employee may seek to invoke.