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What is the difference between the “at-will” employment and “right-to-work”?

At Will vs Right-To-Work Employment Differences

To simplify the differences between the two, “right to work” surrounds one’s freedom to work without being forced to join a union, and “at-will” gives employees and employers the right to choose whether or not one stays employed.

“At-Will” Employment:

“At-will” gives employers the right to fire an employee without cause.  It gives employees the right to leave without notice. Although one giant exception is discrimination.    

An employer cannot tread upon a protected class, such as religion, race, nationality, or gender. In these cases, federal and state laws trump the “at-will” law, and many state laws protect classes that federal laws do not. While one may not discriminate against a protected class, it does not protect against disciplining or firing an employee for a just cause such as negative performance reviews, criminal activity, violating company rules, and harassment of co-workers. 

Another key exception is firing someone when it would be against society’s interest. An employer cannot fire an employee for sounding an alarm against the company’s wrongdoing or refusing to perform actions that violate public safety or break the law.

“At-will” is the default when it comes to employment in all states with the exclusion of Montana.  Therefore, it is prudent for employers to specify employment is “At-Will” within the employee handbook.  Clear clarification within the employee handbook helps avoid employees claiming an “implied contract” was in effect. In addition, making employees fully aware of the employee/employment arrangement is prudent and decreases the pathway for employees to sue should they be fired.

“At-Will” Employment: Implied Contract

Why would an implied contract be of concern?

An “implied contract” makes the “At-Will” employment terms exempt.  While it is not a written contract, the employer has “implied” to the employee that they will not suffer an “At-Will” termination. For example, let’s say the employee handbook outlines a standard company policy on how an employee can be terminated: verbal warning, written warning, three-week performance probation, review, and then termination. If a company releases an employee without following their specified steps, then an employee may have terms to take action for unlawful termination.

Having a documented process for termination within the employee handbook can muddy the water regarding “At-Will” employment firings. Procedures are looked at as commitments given and will be scrutinized by the courts. Unless there are specific disclaimers to justify making an employee’s dismissal without documentation surrounding the history of problems and proper procedures, then the company may find itself falling short in its termination of the employee through the eyes of the judge or jury. 

States With “At-Will” Employment

Employment laws are fluid;  therefore, employers and employees need to stay abreast of changes.  However, each state is not uniform within its employment laws.  While some states may follow the no exception beyond federal law, others will follow a “good faith” exception to “At-Will” termination.  Situations such as terminating an employee to avoid paying out bonuses or commissions is considered a breach of faith by the employer.  

While Montana is not an “At-Will” state, it allows employees to be considered “At-Will” during their probationary period. Therefore, they are allowed to be let go during the probationary period; after that, they can only be terminated for a just cause.

Right To Work

Many confuse right-to-work and “at-will” employment.  Yet, they are two separate legal issues.  

Right-to-work allows one to work in a field without being forced to join a union and pay union dues to receive the same rights granted to the unionized workers.  Currently, 28 states have a right-to-work law prohibiting employers from requiring an employee to join the union to maintain employment.

While not all states have a right-to-work law, all government employees, state or federal, are protected under the right-to-work laws. In addition, the Taft-Hartley Act of 1947 allows for employees not to be part of a union to be hired,  but the employee may be required to join a union after becoming employed.  In the right-to-work state, this act is nullified as an option as well.

Controversy surrounds the right-to-work laws.  Unionized employees find it offensive that non-unionized employees receive the same benefits without contributing funds to make it happen, while non-unionized employees feel they shouldn’t have to contribute to supporting positions they fundamentally oppose.

Summing It Up:

A state can be a right-to-work and partake in “at-will” employment.  With that said, right-to-work does not affect “at-will” employment, yet being part of a union can impact the employers’ options surrounding the “at-will” employment vs. just cause termination.  For example, a union contract that requires employers to have just-cause or requires a set of procedures to be followed before firing an employee.  Can protect a unionized employee from being fired “at-will”, but may not give the same protection to the non-unionized employee.

While right-to-work allows an employee not to join the union yet receive the same pay and benefits, it does not allow the non-unionized employee the right to partake in the counselors who supply negotiations for members in jeopardy of being fired.  Should a collective-bargaining agreement be in place to protect union members against “at-will” firings, a non-member may be covered as well, depending on state law and rulings surrounding state and federal regulators.

Both “at-will” employment and right-to-work laws and regulation are not static. Therefore, never assume you know the law; always do your research and check with a qualified employment law attorney to clarify the latest laws in the state you reside in. 

Here at Dean Law, we pride ourselves on giving you up-to-date information while helping you attain a fair and just outcome.

Schedule Your 30 Minute Free Initial Consult.

If you, or someone you know, is concerned about a State of Idaho employment or employee situation concerning “at-will” or right-to-work interpretations, please feel free to schedule a free 30 minute consultation with Dean Law.   Our specialization in Idaho Employment Law offers the expertise and support you need that can pave the way to a fair and just outcome. 

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