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Flashcards in At-Will Employment Deck (5)
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1

At Will Rule

A. Employee is terminable at will, for any reason, without cause and with no judicial remedy

B. If term is not defined then the Implied term is "At-will"; Either side can walk away

2

Exceptions to At-Will Rule

Exception

1) Contract Terms that Prohibit
i. Fixed Term
ii. For Cause
2) Public Policy
i. The victim must be engaged in protected activity
ii. Must be evidenced by a constitutional, administrative provision, or statutory provision
iii. Employer may not be require an employee to violate a constitutional or statutory provision with impunity (punishment).
iv. No employer is subject to suit merely because of discharging an employee

Exception: Montana says there must be cause to fire you! :)

3

Right to Control Test

Factors to Consider: (Balance-not exclusive)
i. Nature and degree of control retained by management over manner and means of work
ii. Who supplies the instrumentalities, tool and workplace;
iii. The skill required;
a) Important because better negotiation position and can seek work elsewhere
iv. Length of Employment
v. How important the services of the employee to the business---does the worker do what the "Company" does.
a) Example Willamette hires painter and teacher
vi. Whether or not the worker is engaged in a distinct business or occupation
vii. Whether worker provides services to other companies;
viii. The degree to which management supervises the worker
ix. The method of payment whether by the time worked or by the job; x. Subject understanding of parties

4

Economic Realities

1-5 of Control Test +

i. Workers Opportunities for profit or loss: (greater-than independent contractor)

ii. Overall: the degree to which worker is economically dependent on company for continued work.
a) (Most Important for ERT)
b) If you didn't have this job you would have no income
Another way: are you genuinely an entrepreneur

5

Joint Employment

1) Can be an employee of multiple places
a. Sue both, and apply the right to control test
Like staffing agencies and also larger company (T-Mobile)