Right to Work and Employment at Will: Two Doctrines with Different Meanings

December 17th, 2016 by JBWK

Submitted by Robyn H. Hansen

I often hear the comment “Virginia is a right to work state, and therefore, my employer can fire me at any time.”  The premise is correct but the conclusion has nothing to do with the Right to Work. The Right to Work refers to the right of an employee to work for an employer without having to belong to a union.  The right to terminate employment at any time refers to the Employment at Will Doctrine.

The Right to Work is a law in Virginia that prohibits agreements between employers and labor unions to restrict or condition employment with an employer based on membership in a labor union.  A proposed Constitutional Amendment to incorporate the Right to Work in the Virginia Constitution failed this November, but the Right to Work still remains the law in Virginia. Thus, individuals are free to work for any employer in Virginia without being required to join a labor union.

               Employment at Will is a doctrine that protects the right of both employers and employees to terminate the employment relationship at any time. Three exceptions exist to the Employment at Will Doctrine in Virginia.  First, a written contract can create an employment relationship for a fixed period of time which can only be terminated for specified reasons. Secondly, federal and state statutes protect employees from discrimination in employment based on certain protected classifications, including, for example, race, sex, religion, color, national origin, age or disability. Thirdly, Virginia courts recognize the right of an employee to sue for wrongful termination in three limited public policy exceptions: (1) termination for exercising a statutorily protected right; (2) termination in violation of public policy contained in a statute designed to protect the employee in employment; and (3) termination because the employee refused to engage in a criminal act.

So the next time you hear someone say Virginia is a Right to Work State, you can with assurance respond, “Yes, I know. Virginia protects my right to work without joining a labor union.”

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