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鈥淪o, tell me, is there really such a thing as 鈥榓t-will鈥� employment in Oregon anymore?鈥� This is a question that comes up more and more frequently from clients, friends or others at social gatherings during discussions about my work. The short answer I usually give is: 鈥淵es, but it doesn鈥檛 always seem that way.鈥�

In fact, employment 鈥渁t will鈥� is still the law of the land in Oregon. Under this principle developed by the courts (what we call 鈥渃ommon law鈥�), rather than by legislation, an employer is free to end the employment relationship at any time and for any reason, with or without cause, and with or without notice. However, there are so many exceptions to this rule that it can be eclipsed in practice, even if still true in theory.

To give you an idea of how the exceptions can dominate the rule in today鈥檚 workplace, here is a very short summary of the most common exceptions that affect 鈥渁t-will鈥� employment in Oregon. Note that the focus here is on private employees; public employees typically have additional protections.

Contractual limitations

Written employment agreements may provide some commitment to employment for a particular length of time or limit the circumstances for which an employee can be terminated. For example, some agreements provide that the employee must be given a certain amount of notice, or cannot be terminated at all, unless the employer has 鈥渃ause.鈥� As typically defined in a contract, 鈥渃ause鈥� refers to specific wrongful acts such as theft, gross misconduct, violations of the law or company policy, or failure to follow directives.

Likewise, union contracts and collective bargaining agreements typically include negotiated contractual terms that constrain an employer鈥檚 ability to terminate union-represented personnel without following negotiated layoff rules or taking specific disciplinary steps in advance.

Employers also occasionally create contractual limitations, usually unknowingly, by written policy, employee handbooks, verbal commitments, and even past practice. This is precisely why most employers include a disclaimer in their handbook, or other written policies, that advises the reader that policies, practices and verbal discussions cannot be relied upon and that a written agreement signed by an authorized representative of the company is required to create a binding contractual commitment of the employer. Without an appropriately and clearly worded disclaimer, an employer may leave itself exposed unnecessarily.

Anti-discrimination laws

A host of state and federal laws prohibit employment decisions on the basis of certain defined categories, which we refer to as 鈥減rotected classifications.鈥� These are the obvious categories that most of us in today鈥檚 workplace know and expect, including an individual鈥檚 race, color, religion, national origin, citizenship, age, gender, sexual orientation, gender identity and gender expression, disability, protected genetic information, pregnancy, and/or veteran/military status, as well as association with a person in a protected classification. In addition, lesser-known protected classifications under Oregon law also exist, including marital status, family relationships (with limited exceptions), expunged juvenile court records, off-duty tobacco use and wage garnishments.

Anti-retaliation protections

A host of laws also forbid adverse employment consequences (including termination) because an employee exercised certain rights or legal remedies. This includes what are traditionally referred to as 鈥渨histleblower鈥� protections, which impose strict protections for workers who have made a complaint or raised legitimate, good faith concerns about things like:

• discrimination, harassment or retaliation on the basis of any protected classification (listed above);
• wage and hour compliance;
• health and safety issues;
• financial reporting, accounting errors or fraudulent practices; or
• any other potential violation of a state or federal law, rule, or regulation.

Thanks to fairly robust anti-retaliation protections now included in most state and federal employment statutes, this exception to 鈥渁t-will鈥� employment goes further than just classic whistleblowing scenarios like those described above, and prohibits terminations based in whole or in part upon the following additional employee activities or events:

• engaging in a union or other related activities protected by the National Labor Relations Act, which includes voicing concerns and engaging in discussions with other employees or management about wages, working conditions and unionization. This is not limited to only workplaces where a union or collective bargaining agreement is already involved.
• participating in certain criminal/civil proceedings, agency proceedings or wage claim activities, including pursuing a lawsuit against the employer, testifying at unemployment or workers鈥� compensation insurance hearings, or cooperating with BOLI enforcement efforts.
• being injured on the job and/or filing a workers鈥� compensation claim.
• being absent for one or more of the reasons protected by applicable leave laws, which in Oregon may include: Oregon sick leave, FMLA/OFLA leave, crime victims leave, domestic violence leave, leave for military service, military family leave, jury/witness duty and pregnancy and/or disability leave.

So what does all of this mean to you?

It means you probably want to make sure that your business鈥� definition of employment 鈥渁t will鈥� is consistent with current standards and that you are aware of the exceptions. We also recommend employers be proactive about documenting the reasons leading up to a termination. For example, if you are contemplating discipline for attendance, make sure documentation reflects that any protected absences were excluded from consideration. While you may not ultimately need to defend your decision in court, if you do, it can be critically important that your paper trail reflects your true rationale and doesn鈥檛 stray into the impermissible reasons discussed previously. Finally, as always, consult qualified counsel if you have any cause for concern or want to make sure you have spotted any applicable exceptions before you proceed with termination.

Amy Robinson is a Jordan Ramis PC shareholder practicing in its employment practice group. She has Senior Professional in Human Resources (SPHR) certification as well as a Senior Certified Professional (SHRM-SCP) designation from the Society for Human Resource Management. Contact her at 503-598-7070 or [email protected].