AT-WILL VS. RIGHT-TO-WORK

Steven Cesare, Ph.D.

A business owner from Maryland called me the other day to finalize the details regarding his termination of an employee driving a company vehicle on company time, while under the influence of alcohol. Based on my quick assessment of the fundamentals, this was going to be an easy process. The company has adequate Employment Practices Liability Insurance that includes coverage for wrongful termination claims. The company also has a current employee handbook containing a zero-tolerance drug and alcohol policy stipulating that any such use while on company time could lead to performance management, up to and including immediate termination. And to make it even easier, when confronted with the accusation, the employee admitted to his intoxication while driving the company vehicle.

That termination process, while obviously important, serves merely as pretext to the central point of this posting. During our conversation, the business owner made a comment that I hear quite frequently from others in the green industry. “Well, Steve, I don’t think we have much to worry about, since Maryland is an ‘at-will’ state.” While he is generically correct, I thought it appropriate to highlight the distinction between “at-will” states and “right-to-work” states; a distinction that sometimes confuses business owners.

Readers of this weekly blog are well aware of the numerous, vital differences between certain legal terms that are frequently mis-referenced colloquially. For example, common mistakes are routinely made when using terms like: salaried vs. exempt, PTO vs. Sick Leave, commission vs. bonus, Foreman vs. supervisor, Comp Time Off vs. Paid Time Off, and reasonable suspicion drug testing vs. random drug testing.

First, regarding at-will employment, all states, except Montana, are considered “at-will” states. This means the employment relationship between the employer and the employee is for an unspecified period of time and may be terminated at-will at any time, either by the employee or the Company for no reason or for any reason, not expressly prohibited by law. The rare exceptions to a company’s at-will policy typically involve when an employee has a written employment contract that specifies the precise terms of employment or when an employer’s actions violate public policy.

Your employee handbook should have an At-will Policy like this: “This means the employment relationship is for an unspecified period of time and may be terminated at-will at any time, either by the employee or the Company for no reason or for any reason not expressly prohibited by law. This at-will employment relationship includes the right to discipline, demote, or transfer an employee with or without advance notice. No manager, supervisor, or employee of the Company has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the Company President has the authority to make any such agreement and then only in writing. This represents an integrated agreement with respect to the at-will nature of the employment relationship.”

Second, “Right-to-Work” states are bound by the National Labor Relations Board that has determined employees have the “right” to join or not join a labor union. Employees in Right-to-Work states may choose to join a union, pay union dues and receive union representation, OR work independently from union representation. Conversely, in “Non-Right-to Work” states, employers can require their employees to join a labor union and pay union dues.

As of the date of this posting, the following states are legally designated as “Right-to-Work” states: Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.

Stop yawning! I know this posting is bureaucratic in nature. That point being said, we all agree this content is simply more evidence that human resources is becoming increasingly litigious with each passing day.

If you don’t believe me, your exempt 40-year old female Hispanic, diabetic Foreman, with an employment contract, who you call a “supervisor,” wants to know if she can use her future Comp Time accrual for a vacation, paid for with her bonus percentage for selling enhancements that are not completed, and when she will receive payment for her granted but unused Sick Leave hours if she gets fired for refusing a random drug test while driving her personal vehicle with her child as a passenger, on company time, in Montana.

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