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Wisconsin allows some exceptions to at-will employment

by | Apr 19, 2020 | Employment Law

The idea of “at-will employment” seems so natural to Americans that it can be hard to explain. How is it different from just “employment”?

Still, some states follow the principle more closely than others do. In Wisconsin, like the rest of the country, employers and employees benefit from a clear understanding of at-will employment and the many exceptions that shape our work lives.

What is “at-will employment”?

At-will employment means you can fire an employee at any time for any reason, or without any reason at all. Because the employee can also quit the same way for the same reasons, some people say this makes an even playing field between employers and employees.

But imagine a world where employers can fire anybody for even the most morally indefensible reason you can think of.

The federal and many state governments imposed many exceptions to the basic at-will scheme. While there are some “strong at-will states,” others adopt plenty of exceptions, especially in favor of protections for workers.

The following are basic principles and are certainly not the only exceptions that apply in Wisconsin. Also, your results may vary depending on the details of each law and your case. Note as well that the categories below often overlap and intertwine in a variety of ways.

Reasons for firing should not undermine public policy

Wisconsin expects workers to uphold and participate in the implementation of public policy. Firing a worker for refusing to break the law is wrongful termination. Or, for example, you cannot fire someone for using their workers’ compensation protections, including reporting injuries. And because the state intends to protect nursing home residents from abuse, workers can report abuse to authorities.

Implied contracts can exist under Wisconsin law

Some commitments to employees are explicitly written down but others can instead be implied.

For example, imagine an employee handbook that describes a procedure for identifying performance problems, trying to correct them and evaluating progress before terminating an employee. That handbook just might create an implied contract promising this procedure before you can terminate an employee.

Some personal traits cannot be the basis for termination

Most employees and employers know you cannot fire an employee based on their gender, age, race, sexual orientation, physical disability, ethnicity or religion.

But there are perhaps lesser-known categories such as marital or veteran status, mental disability, citizenship status, ethnicity, genetic information, national origin, pregnancy, and (with certain exceptions) lawful use of alcohol and tobacco.

Employees can use their rights without retaliation

State and federal laws forbid retaliation against employees for trying to use their rights. Reporting violations of employee rights, filing complaints and testifying about them must be possible without retaliation. And retaliation can include anything that serves to retaliate, including demotions, passing people up for promotions or pay raises or giving a worker less desirable hours or assignments.