by Nicholas Hefling
Too often, while talking with people about conditions at their workplace, someone tells me something along the lines of, “Yeah, well, we’re an at-will state, so there’s nothing we can do.” At times, they’ll say “right-to-work” in place of “at-will.” The two get conflated constantly and both get treated as the prevailing law of the land, under which employers have total control. My previous article looked at “right-to-work” laws, which govern whether the people a union represents have to pay for that representation. At-will employment is a different animal. It does indeed govern discipline and discharge, but it does not mean what most people think.
At-will employment does not mean your employer can fire you for any reason. It means your employer does not have to give a reason for firing you. That distinction sounds meaningless until you are the one cleaning out your locker. Even with an at-will employer, plenty of reasons remain illegal: You cannot be fired for your race, sex, age, religion, disability, or national origin; for filing a safety complaint or a wage claim; for refusing to break the law; for taking protected leave; or for organizing with your coworkers. Those protections exist, even if they too often go unexercised by the people being illegally terminated. At-will status relieves the employer of any duty to explain their decision, and in doing so, it moves the entire burden of proof onto the worker.
There is exactly one state that requires cause to fire you and it is Montana. Its 1987 Wrongful Discharge from Employment Act (WDEA) is often cited as proof that statutory just cause is achievable. The Montana legislature enacted the WDEA to replace a patchwork of unpredictable court rulings with a defined, bounded remedy — protecting workers from arbitrary discharge while capping what employers could be made to pay. It was a trade, and business took the deal.
Then, in 2021, Montana’s governor, Greg Gianforte, signed House Bill 254 and defanged the WDEA. [6] The default probationary period went from six months to 12, extendable to 18. This means a Montana worker can now be fired at will for a year and a half before the law applies at all. Additionally, unemployment compensation and early retirement pay now get deducted from any lost-wage award. Another seemingly progressive victory destroyed by a Republican party in total control of the Montana legislature.
Organized labor has experimented with other forms of industry-wide just cause. In 2021, New York City fast food workers won just cause as a condition of employment, a law Local 32BJ of the Service Employees International Union (SEIU) championed. Management-side lawyers described this as turning those workplaces into de facto union shops. It was a real win that provided new employment protections for thousands of workers. The idea developed in this experiment was the creation of a kind of poor workers’ union. A companion ordinance required employers to process payroll deductions to qualified worker nonprofits. An SEIU-funded nonprofit, Fast Food Justice, was positioned to use it, signing roughly 1,200 workers at $13.50 a month out of a covered workforce of around 70,000. It took about $1.2 million from 32BJ, shared an office with the local, and its website was dark by 2023.
That fantastic legal victory by SEIU in New York City has not resulted in a mass expansion of dues-paying members, even when the gains are real and the dues are very low. Montana’s law held up for decades, then was gutted beyond recognition by a MAGA-dominated legislature.
This brings us back to a recurring theme: Contemporary unions have become bureaucratic, complex, and staffed with capable people who have won real, great, sometimes even life-changing victories. But the servicing model (dues as fee-for-service; staff as the “service” you pay to “do the union for you”) creates perpetual vulnerabilities. Abstract legal protections won by professional staff, lawyers, and legislators, instead of by workers directly coming together, fighting, and winning, are easily defeated by a business class that owns nearly all the media and holds disproportionate power in the statehouse. As we see in New York City and Montana, if we have the protection but not the organization, workers’ rights are always up for grabs. Worker power is in the solidarity on the shop floor. It is what makes protections enforceable, and everything else is downstream.
While worker power has dwindled, the cunning “innovations” of business leaders continue apace. The fastest growing arrangement in American work is the one in which you are not an employee at all. As an independent contractor, you fall out entirely from the hard-fought rights of employees. Gig-app workers don’t just get fired, they get deactivated. A single one-star review, and suddenly the algorithm shuts you out, with no appeal and no explanation. It is the concept of at-will employment taken to its apogee.
Gig apps sell themselves as the future of work while throwing workers back into the 19th century. You don’t have rights to overtime pay, workplace safety protections, or seniority rights. Paid piecemeal instead of hourly, you must provide all equipment and pay all taxes while not receiving any healthcare or retirement benefits. Importantly, you have no protection for collective activity. This “new” arrangement is touted as greater freedom: Set your own schedule and rates; be your own boss. They don’t mention that this forces a race to the bottom, pitting workers against one another for the same jobs. Establishing the worker as an employee was one of the first things organized labor ever fought for. That is the ground currently being lost to Silicon Valley C-suites.
To sum up: At-will employment does not mean employers can do anything they want. It does mean that if they violate the law, enforcement falls to you alone, and that’s the point. Here’s a little something that often gets missed: Section 7 of the National Labor Relations Act protects concerted activity, and it does not require a union. Two or more workers raising pay, safety, scheduling, or workload issues together are protected right now, even in your at-will workplace. Let’s use it.
Nicholas Hefling is a longtime union staffer and local area labor organizer.