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Do You Know? Right-to-Work vs. Employment-at-Will
09/26/2012

My fifteen-year-old daughter is an avid reader. She also has an offbeat sense of humor (which she must get from her mother). So perhaps I should not have been surprised to find a book titled Zombies vs. Unicorns lying around the house. "It's a question as old as time itself: Which is better, the zombie or the unicorn?" the book jacket teases.

Such weighty conflicts and comparisons have existed throughout history, of course. Good vs. Evil. Cats vs. Dogs. Yankees vs. Red Sox. King Kong vs. Godzilla. VHS vs. Betamax. And, most recently, Alien vs. Predator. In this spirit, let's examine two separate and distinct legal concepts that are sometimes misunderstood or confused with one another: Right-to-Work vs. Employment-at-Will.

Right-to-work has nothing to do with employers' ability to hire or fire. Nor does it refer to employees' right to unionize. Rather, a right-to-work law prohibits unions and employers from entering into contracts that require workers to join the union or pay union dues as a condition of employment.  

Kansas is one of 23 states with a right-to-work law. Kansas adopted a right-to-work amendment to its constitution in 1958. It provides, "No person shall be denied the opportunity to obtain or retain employment because of membership or nonmembership in any labor organization, nor shall [any employer] enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of membership or nonmembership in any labor organization." (Kan. Const. Article 15, Section 12). 

However, even in states without right-to-work laws, union membership cannot lawfully be required. The U.S. Supreme Court ruled in 1985 that union members have the right to resign their union membership at any time. But, absent a right-to-work law, employees can be required to pay union fees if the employer and union contractually agree.

Employment-at-will is the legal doctrine that, absent an express contract that provides a definite period of employment or limits the reasons for discharge, either party to an employment relationship can end the relationship at any time, for any or no reason, without prior notice. Kansas is one of 49 states in which the courts follow the employment-at-will rule. In contrast, employees in most other industrialized nations cannot be discharged without good cause. 

There are numerous exceptions to the employment-at-will rule, of course. Discrimination laws prohibit discharge based on race, gender, and other protected classifications, or in retaliation for exercising rights under these laws. In addition, Kansas courts have created public policy exceptions that make it unlawful to discharge employees for whistle blowing, refusing to violate the law, or exercising their rights under employee protection laws, such as the Kansas Workers Compensation Act and Kansas Wage Payment Act.

So now you know the difference between right-to-work and employment-at-will. We'll leave the finer points of zombies vs. unicorns for a later day. 

 


Editors
Don Berner Image
Don Berner, the Labor Law, OSHA, & Immigration Law Guy
Boyd Byers Image
Boyd Byers, the General Employment Law Guy
Jason Lacey Image
Jason Lacey, the Employee Benefits Guy
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