What is the difference between “employment at will” and “right to work”?

Many people in Texas and elsewhere get confused between “employment at will” and “right to work.” Both of these terms are legal terms associated with employment law, but they have distinct meanings that are crucial to understand.

Employment at will is a common law doctrine. It means that the employer can terminate the employee arbitrarily and for any reason. An employee is also allowed to leave at will for no reason or any reason. Generally speaking, when employment is at will, employers can change the terms and conditions of employment and either increase or reduce wages.

However, in many cases, an employer and an employee do sign an employment contract. In some cases, the contract specifies that termination is only for just cause, or the employer and employee agree verbally that the employment will end only because of a just cause within a specific window of time. Sometimes employee handbooks provide language that shows employment is not at will, as do certain collective bargaining agreements.

Although the employment at will doctrine allows either party to terminate the relationship for any reason, there are limits. An employer is not allowed to fire an employee for an illegal reason or a reason that violates public policy. For example, the employer can’t fire the employee for exercising rights under the Americans with Disabilities Act, the Age Discrimination in Employment Act, or Title VII. The employer cannot fire an employee based on her membership in a protected category, such as her gender, race, national origin, religion, or color.

“Right to work” laws involve employee rights while employed and when a labor union is involved. Employment at will covers your rights when employment is terminated, while right to work refers to rights during employment. The right to work doctrine was established in the National Labor Relations Act (NLRA) of 1935. It lets employees stop from engaging in collective activity, such as being represented by a union or organizing. The idea is that employees in a right-to-work state have the right to stop engaging in collective organization in order to work and make a living.

When you live in a right-to-work state like Texas, the state doesn’t require union membership as an employment condition. When you don’t live in a right-to-work state, you could be required to join a union as a requirement of being hired. “Right to work” does not refer to an entitlement to gainful employment. Instead, it has to do with whether a union and an employer can compel all of the employees in a particular bargaining unit to pay assessments or dues to the union.

Texas is both an employment at will and a right-to-work state. You cannot be denied a job because you decide to join a labor organization, but nor can you be denied employment for not joining the union. You are protected against threats for participating or not participating in collective bargaining activity—the choice is up to you. However, regardless of your relationship to a union, you’re also protected against being subjected to discrimination in the hiring process or on the job based on several protected characteristics.

It can be important to obtain representation from an experienced employment lawyer when you have a dispute with your employer regarding discrimination or other matters. Contact us at (214) 528-6500 or via our online intake form.

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