Is It Legal To Be Fired Without Notice?

Can your employer fire you without notice? “The short answer is yes,” says Sonya Smallets, an employment law attorney at Minnis & Smallets in San Francisco, California. “In many to most circumstances, employees can be fired without notice.”

The reason for this unsettling answer lies in the doctrine of employment at will, which says that employers have the right to terminate workers at any time and for almost any reason. Still, there are important legal exceptions to this rule.

If you have an employment contract or an implied contract, or if your termination involved discrimination, retaliation, or public policy violations, you may have grounds for a wrongful termination claim.

Even state-specific laws and rules about final paycheck requirements can come into play. Knowing these protections is the first step in deciding whether to accept what happened or to fight back. For legal advice on your situation, speak with a local wrongful termination lawyer.

Understanding At-Will Employment

Under at-will employment, an employer or employee can terminate employment at any time without notice or cause. This applies to nearly all private-sector employees in the United States. While a termination may feel unfair, it may not be unlawful.

However, at-will does not override federal, state, or local employment protections. Employers must still follow federal and state law when terminating employment. They cannot fire an at-will employee for illegal reasons.

Exceptions to the At-Will Rule

There are a few major exceptions to the general rule of termination without notice:

1. Government employees
2. Union members
3. Mass layoffs
4. Employment contracts
5. Illegal termination

Here’s a closer look at these exceptions.

Government Employees

“When talking about at-will employees, we’re really focused on private-sector employees. The rules that apply to government employees are different,” says Smallets.

For example, when a federal government employee starts their job, they have a yearlong probationary period in which they can be fired at any time and for any (legal) reason, just like private-sector employees.

However, after their first year, federal government employees become permanent. At that point, they can only be terminated for poor performance, misconduct, or medical inability. And before the government agency can terminate them for one of these reasons, it must provide advance notice as well as evidence and give the employee an opportunity to appeal.

So, if you are a government employee, you likely have more robust job protections than your private-sector counterparts.

Union Members

“Another major exception to the at-will employment rule is union employees,” says Smallets. “Union employees are completely different because they’re working according to a collective bargaining agreement that spells out the rules for termination.”

Your union agreement likely includes limitations on:

• When you can be terminated;
• How you can be terminated; and
• What type of notice is required.

“It’s not that the union employee would have the right to pursue a wrongful termination claim in court,” explains Smallets. “Rather, it’s that their union would have the right to pursue whatever remedies their collective bargaining agreement allows the union to pursue on the employee’s behalf, which is typically some kind of grievance procedure.”

Mass Layoffs

A third exception to at-will employment kicks in if your employer is conducting a layoff that meets the requirements of the Worker Adjustment and Retraining Notification (WARN) Act.

The WARN Act is a federal law that requires certain employers to give 60 days’ notice before executing a mass layoff or plant closing. It generally applies to companies that have over 100 employees or plant facilities with over 50 employees. A mass layoff is defined by the reduction of 50 or more employees within 30 days.

There are exceptions to the WARN Act, such as unforeseeable business circumstances, natural disasters, or faltering companies. If an employer fails to comply with notice standards, employees are required to pay employees wages and benefits for the notice period.

Smallets notes that California and other states have laws like the federal statute requiring a notice period for layoffs, though time periods vary.

Illegal Reasons for Termination

The final major exception to at-will employment is getting fired for an illegal reason. Some of the major categories of unlawful termination include:

Retaliation

It’s illegal for an employer to retaliate against you if, for example, you:

• Reported safety violations or unsafe working conditions to the Occupational Safety and Health Administration (OSHA)
• Acted as a whistleblower on the company’s illegal activity
• Engaged in protected activities, such as taking covered medical leave under the federal Family and Medical Leave Act (FMLA)

Discriminatory Reasons

Federal law prohibits employment discrimination against various protected classes.

• Title VII of the Civil Rights Act covers race, color, religion, sex (including gender, gender identity, sexual orientation, pregnancy, childbirth, and related medical conditions), and national origin.
• The Americans with Disabilities Act (ADA) prohibits disability discrimination
• The Age Discrimination in Employment Act (ADEA) prohibits age discrimination

The Equal Employment Opportunity Commission (EEOC) enforces employee rights and protections.

Employers in workplace discrimination claims will argue that the reason for a termination or other adverse action, such as demotion, was the employee’s poor performance or some other legitimate reason. However, if you think the real reason was discrimination, you may have a wrongful termination case.

How Employment Contracts Affect Termination Notice

Another area where the general rule of at-will employment wouldn’t necessarily apply is if you have an employment contract that lays out:

• Grounds for termination
• Procedures for termination
• Notice requirements

A gray area exists where there is no written agreement that applies to you specifically, but rather general company policies or an employee handbook that lays out guidelines for termination. Learn more about the difficulties in proving the existence of an implied contract.

Implied Contracts and Promises

In certain situations, a contract may not be written. An implied employment contract is inferred based on the conduct of the parties. Generally, there are multiple sources of supporting evidence that create the employment obligation for the parties.

Company handbooks, offer letters, oral promises, and long-standing assurances can all create an implied contract or promise of employment. These materials may place conditions or limits on the at-will employment status of the employees. A court could treat these promises as binding when terminating an employee.

Enforcement of these implied contractual agreements varies by state. Some stats are more supportive of implied agreements, while others take a more skeptical approach. If an implied contract is recognized, firing without following its procedures can support a wrongful termination claim. Employees should review handbooks, policies, and communications if they suspect an implied agreement was violated.

What To Do if You Were Fired Without Notice

Getting fired without notice can feel like a jarring and upsetting experience. However, it is important not to become emotional in the moment. Instead, gather your employment documents, such as your employment contract, employee handbook, and offer letter.

Keep a record of all communications with your direct supervisor and human resources personnel. Request a written explanation of your termination. Take note of the date of your firing and the date of when you received your final payment.

If you suspect that you have a wrongful termination claim, speaking with a lawyer can help you analyze the situation. The lawyer will look for signs that the firing involved one of these causes of action:

• Discrimination
• Retaliation
• Public policy violations
• Breach of employment contract or implied contract
• WARN Act coverage

A lawyer will review your eligibility to claim unemployment benefits. They will check whether severance was offered (and whether signing a release affects legal rights).

Using an Employer’s Failure to Warn as Evidence of an Impermissible Motive in Termination

“An employer is generally under no obligation to give notice of termination. However, if an employee believes their termination happened for an illegal reason, then the employee may be able to point to the employer’s failure to warn them about their behavior and give them an opportunity to improve as evidence that an impermissible motive affected the decision,” says Smallets.

“This is particularly true if the employer’s failure to give the employee an opportunity to improve violated the employer’s policies or if, in doing so, the employer treated the employee differently than other employees.”

Smallets gives an example of how this could play out. “An employee might say, ‘Wait a second, you didn’t give me any notice that I was having performance deficiencies. But you did give notice to my coworkers — who hadn’t complained about sexual harassment last week — that they had performance issues. You gave them an opportunity to fix it, but not me.’ You could potentially use that as a piece of evidence to support a claim of unlawful termination. It’s less about how much notice you were given, such as two minutes versus two weeks, and more about what led up to the termination decision.”

Consulting an Employment Lawyer

The at-will employment doctrine means many job losses come without warning, but not every termination is lawful. Exceptions exist for workers covered by contracts, union agreements, and state or federal laws, as well as for those who experience illegal motives such as retaliation or discrimination.

Because the rules vary by state and circumstance, speaking with a skilled employment attorney is the best way to protect your rights and evaluate whether you have a wrongful termination case.

Visit the Super Lawyers directory to find an experienced wrongful termination lawyer in your area for legal advice if you’re considering a wrongful termination lawsuit against a former employer.