In a previous post, we discussed how the majority of employees across the U.S. are presumed to be at-will, meaning their employers are permitted to terminate their services for any legally permissible reason — or no reason whatsoever.

As firmly entrenched as this legal presumption is in the area of employment law, it’s important to understand that there are exceptions, starting with the existence of an employment contract.

Employment contracts

In negotiating an employment contract, a prospective employee can negotiate the inclusion of a provision that essentially circumvents the at-will presumption by dictating either 1) a set period of employment or 2) termination may not take place absent a showing of cause.

While the determination as to what employee actions or scenarios would justify termination for cause can be reached via negotiation, it has historically included such reasons as economic necessity, substandard performance or employee misconduct.

It should be noted that these types of cause for termination provisions are typically reserved for the employment contracts of executive-level employees or included in collective bargaining agreements.

Common law exceptions

In recognition of the fact that adherence to the presumption of at-will employment can sometimes produce less than equitable results, courts have recognized three exceptions, meaning three situations in which it doesn’t apply. These include public policy, implied contract, and implied covenant of good faith and fair dealing.

At the outset of examining these exceptions, it’s important to understand that they are not necessarily recognized in all 50 states and, even if they are, it is not always easy for an employee to demonstrate that they qualify.

We will examine the first exception to the presumption of at-will employment, public policy, in a future post.

Consider consulting with an experienced legal professional as soon as possible if you have any questions or concerns about the circumstances in which your employment was terminated.