Is It Legal to Be Fired Without Notice?

Use these links to jump to different sections:

• Exception 1: Government Employees
• Exception 2: Union Members
• Exception 3: Mass Layoffs
• Exception 4: Employment Contracts
• Exception 5: Illegal Reasons
• Find Experienced Legal Help

It’s a troubling question that many employees have wondered about at some point: Can my employer fire me without notice? “The short answer is yes: In many to most circumstances, employees can be fired without notice,” says Sonya Smallets, an employment law attorney at Minnis & Smallets in San Francisco, California.

The reason for this unsettling answer lies in the labor law doctrine of employment at will, which says that an employer can fire an employee:

• At any time and without warning;
• Without needing to provide a good cause for the termination;
• As long as the termination isn’t for an illegal reason.

In the United States, virtually every state is an at-will state. The one exception is Montana, where state law gives employees who believe they were terminated without good cause a ground for legal action.

So, if you are:

1. A private-sector employee in an at-will state;
2. You’re not a member of a union;
3. You weren’t terminated as part of a mass layoff;
4. You have no employment contract setting a period of employment; and
5. You weren’t fired for illegal reasons—

Then, your employer can most likely terminate your employment without notice. Here’s a closer look at some of the major exceptions to the general rule of termination without notice.

Exception 1: 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.

Exception 2: 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.” 

Exception 3: Mass Layoffs

A third exception to at-will employment kicks in if your employer is conducting a layoff that meets the requirements of the federal Worker Adjustment and Retraining Notification (WARN) Act. Under WARN, employers with 100 or more employees must provide 60-day notice of a plant closing or mass layoff.

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

Exception 4: Employment Contracts

Another area where the general rule of at-will employment wouldn’t necessarily apply is if you have an employment contract that lays out the grounds for termination, procedures for termination such as performance reviews or written warnings, and notice requirements.

A gray area exists when 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. Smallets says that in the vast majority of cases, employees who allege wrongful termination on the basis of provisions in an employee handbook will not prevail since courts don’t interpret these handbooks as contracts. Learn more about the difficulties in proving the existence of an implied contract.

Exception 5: Illegal Reasons

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 a protected activity, 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, pregnancy, childbirth and related medical conditions, and sexual orientation), and national origin. The Americans with Disabilities Act (ADA) prohibits disability discrimination, and the Age Discrimination in Employment Act (ADEA) prohibits age discrimination.

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.

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

“While an employer is generally under no obligation to give notice of termination, if an employee believes their termination happened for an illegal reason—discrimination, retaliation—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, particularly 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” explains Smallets.

“For example, 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.”

Find Experienced Legal Help

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

For more information on this area of law, see our overview of wrongful termination.