Q: I’m considering leaving my job and moving to accept an offer from an Ohio employer. A friend told me I should ask for an employment agreement that specifies I will not be an employee at will. What does that mean?
A: “Employment at will” means that, unless you agree otherwise with your employer, either you or your employer may terminate the employment relationship at any time for any reason that does not contradict the law. If you do not get an employment agreement for a specific period of time, you will be an “at will” employee and can be terminated at any time. By the same token, as an at-will employee, you are free at any time to leave a job you no longer want in order to take a better position.
Q: What happens if the employer will not agree to employ me for a specific period of time?
A: If you take the job in Ohio as an at-will employee, your employer could lawfully terminate your employment on the day that you arrive. On the other hand, as an at-will employee, you would be free to leave that job at any time to take a better position.
Q: Is Ohio the only “at will” state?
A: No. Almost every state in the United States considers employees to be “at will” unless the employment falls into an exception to the employment-at-will doctrine. The only state where "at will" is not the general rule is Montana, which has a law making it somewhat harder for employees to be terminated.
Q: What are the exceptions?
A: Ohio has five basic exceptions to the employment-at-will doctrine.
1) The employment-at-will doctrine does not apply if an employment contract provides for a specific term of employment or job protection, such as allowing a termination only for just cause.
2) Facts and circumstances may imply a contract, even if the employer does not provide a written employment agreement. Facts and circumstances that may imply a contract include information contained in employee handbooks, oral representations by supervisors of job security in exchange for good performance, and written assurances reflecting company policy. (Note: These conditions can often be difficult for an employee to satisfy, particulary because a simple disclaimer in the employee handbook stating that the handbook is not a contract, or a notice from the employer that the employee can be terminated for any reason, will prevent the employee from claiming there is an implied contract.)
3) Promissory estoppel is another exception to the at-will doctrine. In such a case, an employee reasonably relies (to his or her detriment) on something an employer says or writes, even though it is not a contract. Let’s say, for example, that the employer suspends the employee from the job for failing to obtain an expensive license of some kind, but promises to reinstate the employee when the license is obtained. If the employee, relying on the representation that he or she will be reinstated, spends money to obtain the license, and the court finds that the employer should have expected the employee to rely on the promise, then the court could prevent the employer from refusing to reinstate the employee under the "promissory estoppel" theory.
4) A “public policy” exception would prohibit an employer from terminating an employee “at will” if such a termination would violate certain important public policies. For example, if an employee can prove he or she was terminated only for taking time off to serve on a jury, a court may determine that the employee was wrongfully terminated because jury service is an important public function, and allowing employees to be terminated for serving on a jury would endanger that important function.
5) State and federal laws prohibit employment terminations for specific reasons, such as discrimination based on race, sex, disability, or other protected class status, or retaliation for engaging in protected conduct, such as whistleblowing or filing a workers' compensation claim. For example, an employer may not terminate an at-will employee because the employer learns that the employee has a disability.
Q: How can I get a contract for a specific term of employment?
A: Bargain for it. In your case, you might say you will only accept the new job with a minimum employment term (say, a year) or an agreement that you will only be terminated for just cause. Once you quit your job and move to Ohio, however, you will lose your bargaining leverage and probably will not be able to bargain for job security.
Certain employees have contracts that are not at will, including some public school teachers and other public officials who, by law, are entitled to annually renewed employment contracts. Also, union members generally are protected by a collectively bargained agreement preventing the employer from firing them without just cause.
Q: What is “just cause”?
A: “Just cause” does not have an exact legal meaning and depends on the circumstances. Generally speaking, however, it refers to sufficient fault on the part of the employee to justify termination. For example, an employer usually will have just cause to terminate an employee who fails to show up or call off from work for several days. In the case of performance problems, however, just cause usually means that the employee consistently has failed to meet the employer’s reasonable expectations despite the employer’s warnings and instructions to improve.
Q: What happens if an employee has a contract, but the employer fires her anyway without just cause?
A: The employee could bring suit for damages from a breach of contract claim to recover the earnings he or she lost as a result of being fired without just cause before the end of the contract.
This "Law You Can Use" consumer legal information column was provided by the Ohio State Bar Association. It was originally prepared by Akron attorney Neil E. Klingshirn of Fortney & Klingshirn, and updated by Columbus attorney Jeffrey P. Vardaro of The Gittes Law Group.