The “Dear Atty” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”
I have a brother-in-law who is kind of a know-it-all. He runs his own business and has a handful of employees. Because he is kind of a jerk, he constantly is reminding his employees that he is “The Boss” and that, because Wisconsin is an “at-will” state, he could fire them at any time, for no reason. I have told him that I think he is wrong about that. He says that I am wrong because, of course, he believes that he always is right. Please help to settle this disagreement.
Wishing my Sister Never Married the Guy
Boy, he sounds like a real piece of work. Even if he were right, which he is not, it sure says a lot about the guy that he takes pleasure in threatening to fire his own employees.
He is correct in saying that Wisconsin is an “at-will” state. But that is only part of the story.
The Law: In an at-will employment relationship, both the employer and the employee are free to terminate the employment relationship for any reason, or no reason at all, except if the termination of employment is for a discriminatory reason or is in violation of a contract.
Your brother-in-law’s mistake is that he is ignoring the part of the at-will rule after the word “except.” As a practical matter these exceptions tend to swallow the rule.
The first exception is that the at-will employment relationship cannot be terminated for discriminatory reasons. As you probably know, there are many federal, state and local laws prohibiting discrimination on all sorts of grounds, e.g., race, national origin, sex, age, disability, use of Family and Medical Leave, sexual orientation and even personal appearance. If the termination of employment runs afoul of any of these laws the “at-will” rule does not apply.
The second exception to the at-will rule applies if the termination of employment is in breach of a contract. There are many types of employment contracts. One example is a written employment contract between the employer and an individual employee. Often these type of contracts eliminate the at-will standard and apply a higher, more stringent standard of “cause” for termination. Another type of contract arises in the union setting where employees are covered by a collective bargaining agreement. Those agreements typically require the employer to show “cause” for termination; the at-will rule would not apply in that situation either. Lastly, an employer’s own policies could, if not written carefully, rise to the level of an enforceable contract that would trump the at-will standard (that is why we are so careful in drafting handbooks and similar policies to add disclaimers stating that the handbook and policies are not a contract).
The bottom line is that, while employment in Wisconsin is at-will, employees cannot be terminated in violation of the law or in breach of a contract.
I suggest you show this article to your brother-in-law the next time he is over for dinner. If you are lucky, doing so could cause it to be the last time that he is over for dinner.
If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years.