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Corporate Divorce: No Fault Employment?

No Fault Employment?The divorce metaphor bears fruit yet again when it comes to the employment relationship. To this mix I add the concept of “no fault” divorce and the reasons employment ends.

A “no fault” divorce permits a spouse to end a marriage for any reason or no reason at all – its label accurately advertises its results. In fact, in most states, once you satisfy the residency requirements, you can end a marriage surprisingly quickly in the absence of financial or custody disputes. At will employment operates in a similar way.

The Basics of “At Will” Employment

“At will” employment is one of those terms tossed around in courts and at cocktail parties often without a true understanding of its meaning. “At will” employment means that an employer may fire someone at any time and for any reason. And any reason means just that: having no reason, having a good reason, or even having a reason with which someone profoundly disagrees.

Similarly, and here we nod to our constitutional freedoms, generally speaking an employee can leave a job at any time and for any reason. Now professionalism and frankly common courtesy should somewhat constrain this insouciant approach to employment – it is hard to imagine a situation where someone just picks up and walks out an employer’s door with hardly a goodbye – in fact there are very few legal constraints on someone’s ability to do just that.

So if both the employer and the employee can walk away from each other without any legal consequences, then why all the lawsuits? On the “sue the employee” side of the equation, which is less common, a lawsuit trigger is typically contract-based (such as the violation of a post-employment restrictive covenant) or bad behavior-based (misappropriating trade secrets is one example).

On the employer-as-defendant side, however, the exceptions to “at will” employment sometimes appear to swallow the rule. An example of the rule-swallowing exception is a claim that an employer violated a “public policy” when terminating an employee. Some of these claims – such as firing someone right after they make a legally significant complaint – are being so expansively added to the exception list these days that one wonders whether a complaint regarding a dirty restroom, an empty water cooler or a purloined bag lunch will impact a termination.

Legally Protected Terminations

Here is where the “at will” rule really begins to collapse: there are two kinds of limitations on reasons for firing someone: the first includes cases where someone is fired because of their race, gender, religion or another category the applicable law (local, state, federal, or all three) protects. The second category is where the employer and employee actually contractually agree that the employee may only be terminated for specific reasons, and the employer violates that agreement. As one can appreciate, these exceptions are fodder for legal disputes.

So …. the Metaphor Doesn’t Really Work (Again)

Once again, the divorce metaphor doesn’t really work. “No fault” divorce means just that – a marriage can legally end without regard to the reasons. But that is not really the case for employment. While in most cases, employees can be terminated at any time and for any reason, in almost all cases there is a reason – and if that reason doesn’t violate a law, isn’t in response to some type of legally protectable complaint, or doesn’t violate someone’s contract rights – then it doesn’t really matter if the reason is a good one or not. The question becomes whether a lawsuit ensues to further test the rule-swallowing exceptions to at-will employment.


Stay tuned for the next chapter in my metaphorical marriage-is-like-employment journey as I explore whether unemployment is like alimony ….

You can read previous installments here:

- The Break-Up: Relationship Advice for the Broken-Hearted Employee

- Corporate Divorce: Treat Your Employment Contract Like a Prenup

- Corporate Divorce: Property (Re)Distribution

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Jennifer B. Rubin is a Mintz Member who advises clients on employment issues like wage and hour compliance. Her clients range from start-ups to Fortune 50 companies and business executives in the technology, financial services, publishing, professional services, and health care industries.