Monday, February 24, 2014


On an almost daily basis, one prospective client or another informs me that he or she has been wrongfully terminated from a position of employment, and asks me if I can help.  Many of these workers tell me they had been faithfully employed by the same employer for years, even decades.  Some report that they have been fired for an insufficient reason or for patently incorrect reasons, or for no stated reason at all.

It is often difficult to hear these stories, and impossible not to empathize, particularly for workers in their 50’s and 60’s who (let’s face it) are going to have a difficult time restarting their careers.  Unfortunately though, and far more often than not, it is my sad duty to advise them that, apart from helping them with unemployment compensation and perhaps negotiating the details of a settlement package, there is little else that I can do for them, however unfair it may seem.

The question is why.  The answer is the Pennsylvania doctrine of “at will” employment.  Under the doctrine of “at will” employment, an employer can terminate an employee’s employment for any reason or for no reason at all, even an unfair or inaccurate reason, so long as it is not an illegal reason.  Illegal reasons for termination include discrimination on the basis of a protected status (such as race, religion, gender, age (over 40), disability, etc.) and discrimination on the basis of protected activity (such as requesting or taking leave under the Family and Medical Leave Act, filing a Workers’ Compensation claim, whistleblowing (in narrowly defined circumstances), etc.).  However, in the absence of discrimination on the basis of a protected status or protected activity, and in the absence of an employment contract prohibiting termination except for specified “cause”, an employer can fire at will, regardless of the employee’s years of service and regardless of the adequacy of fairness of the reasons for termination.

There is also an exception to the “at will” employment doctrine known as the “public policy” exception.  Generally, this exception makes it unlawful for an employer to fire an employee for refusing to commit a crime or for complying with a legally imposed duty (such as serving jury duty) or when specifically prohibited from doing so by a controlling statute.  Thus, under Pennsylvania law an employee may have a claim for wrongful discharge if he or she is terminated for filing a workers’ compensation claim.  But beyond these rather clear-cut cases the public policy exception has only limited application. 

It is arguable that the “at will” employment doctrine is a legal anachronism, not in keeping with the consumer protection and employee protection laws enacted and implemented across America over the last half century.  On an individual level the obvious unfairness that flows from the “at will” employment doctrine can work significant injury to the lives and livelihoods of employees and their families.  It is also arguable, and to some degree unavoidably true that on a larger level, the “at will” employment doctrine may actually promote employment.  If an employer could not fire “at will”, that employer would be far less likely to hire an employee in the first place for fear that the employer could never thereafter get rid of that employee.

As a practical matter, the “at will” employment doctrine is not entirely without limits.  Although a Pennsylvania employer can fire an employee for any reason or no reason at all, so long as it is not an illegal reason, if an employer actually does fire an employee for no reason at all or for a patently ridiculous reason, that termination almost inevitably gives rise to an inference that there must have been an illegal reason at play.  That is, if the stated reason for firing makes no sense, the logical conclusion is that the stated reason was nothing but a pretext for an unstated proper reason.  The silver lining for such fired workers is that even if they have no wrongful termination claim, they likely do have a claim for unemployment.

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