At-will employment rule in Ohio
Q: I’m considering leaving my job and moving to accept an offer from an Ohio employer. A friend told me I should ask for an employment agreement that specifies I will not be an employee at will. What does that mean?
A: “Employment at will” means that, unless you agree otherwise with your employer, either you or your employer may terminate the employment relationship at any time for any reason that does not contradict the law. If you do not get an employment agreement for a specific period of time, you will be an “at will” employee and can be terminated at any time. By the same token, as an at-will employee, you are free at any time to leave a job you no longer want to take a better position.
Q: What happens if the employer will not agree to employ me for a specific period of time?
A: If you take the job in Ohio as an at-will employee, your employer could lawfully terminate your employment on the day that you arrive. On the other hand, as an at-will employee, you would be free to leave that job at any time to take a better position.
Q: Is Ohio the only “at will” state?
A: No. Every state in the United States considers employees to be “at will” unless the employment falls into an exception to the employment-at-will doctrine.
Q: What are the exceptions?
A: Ohio has five basic exceptions to the employment-at-will doctrine:
The employment-at-will doctrine does not apply if an employment contract provides for a specific term of employment or job protection, such as allowing a termination only for just cause.
If an employer says or writes something that is not exactly a contract, but the court nonetheless treats it as though it were a contract, then the employment-at-will doctrine will not apply. For example, the court may determine that written assurances in an employee manual make it clear that an employee will not be terminated unless he or she fails to perform satisfactorily or gives some just cause.
Promissory estoppel is another exception to the at-will doctrine. In such a case, an employee reasonably relies (to her detriment) on something an employer says or writes, even though it is not a contract. Let’s say, for example, that an employee is accused of a crime. The employee may be suspended from his job until the trial is over, and has relied on his employer’s verbal promise that he will be reinstated if he is acquitted. If the court finds that the employer should have expected the employee to rely on the promise, then the court may use “promissory estoppel” to decide that the employee was terminated wrongfully.
A “public policy” exception would prohibit an employer from terminating an employee “at will” if such a termination would violate public policy. For example, if an employee can prove she was terminated only because she took time off to serve on a jury, a court may determine that she was wrongfully terminated because, according to public policy, an employee cannot be terminated for taking time off for jury service.
While at-will employment applies to most employment relationships in Ohio, there are some laws that prohibit terminations for unlawful reasons (such as the anti-discrimination and retaliation laws). For example, an employee may not terminate an at-will employee because that employee became disabled.
Q: How can I get a contract for a specific term of employment?
A: Bargain for it. In your case, you might say you will only accept the new job with a minimum employment term (say, a year) or an agreement that you will only be terminated for just cause. Once you quit your job and move to Ohio, however, you will lose your bargaining leverage and probably will not be able to bargain for job security.
Certain employees have contracts that are not at will, including some public school teachers and other public officials who, by law, are entitled to annually renewed employment contracts. Also, union members generally are protected by a collectively bargained agreement preventing the employer from firing them without just cause.
Q: What is “just cause”?
A: “Just cause” does not have an exact legal meaning and depends on the circumstances. Generally speaking, however, it refers to sufficient fault on the part of the employee to justify termination. For example, an employer usually will have just cause to terminate an employee who fails to show up or call off from work for several days. In the case of performance problems, however, just cause usually means that the employee consistently has failed to meet the employer’s reasonable expectations, despite the employer’s warnings and instructions to improve.
Q: What happens if an employee has a contract, but the employer fires her anyway without just cause?
A: The employee could bring suit for damages from a breach of contract claim to recover the earnings she lost as a result of being fired without just cause before the end of the contract.
Law You Can Use is a consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Akron attorney Neil Klingshirn, of Fortney & Klingshirn (www.fk laborlaw.com/). Articles appearing in this column are intended to provide broad, general information about the law. For more information about a variety of legal topics, visit the OSBA Web site at www.ohiobar.org. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.