The “Right to Work” in an “At-Will State”

By Wm. Joseph Austin, Jr.

North Carolina is both an at-will state and a Right to Work state. The two phrases are sometimes conflated and confused. Each refers to a distinct and separate legal doctrine. There is one point of intersection nevertheless that will be discussed in this paper.

The at-will rule is a common law doctrine that has been summed up frequently in the following formulation: Where a contract of employment does not fix a definite term, it is terminable at the will of either party, with or without cause, except in those instances in which the employee is protected by statute. Themost frequently cited instance of this statement of the basic at­ will rule is Still v. Lance, 279 N.C. 254, 259, 182 S.E.2d 403, 406 (1965).

If we were doing chemistry instead of law, we might call this formulation of the at-will rule a compound, and we would do well to break it into simpler parts, because nearly every clause contains a legal element that has separate legal significance:

  • “Where a contract of employment” -The employer might remonstrate, “Who said anything about a ‘contract’? He came to work on a handshake.” But contracts do not have to be in writing and since the time of Kent’s Commentaries on American Law (1827), and even before, the relation of employer-employee (then master-servant) has been recognized as resting upon contract.
  • “Does not fix a definite term” – “Term” here refers to a fixed period of time whether measured in a definite number of weeks, months, or years. Caveat: Even “permanent employment” is at-will because it does not specify a finite measurable period of time.
  • “It is terminable at the will of either party” – Either the employer or employee may call it quits of his own personal volition.
  • “With or without cause” – Reason is not required as a state of mind nor does a reason have to precipitate the action.
  • Unless the employee is “protected from discharge by statute” – The common law rule may be overridden by a statutory rule.

That fifty-plus year old statement of the rule has withstood the test of time except North Carolina now also recognizes a common law exception to the common law sometimes referred to as the Public Policy Exception to the At-Will Rule, something we will take up in more detail in another paper.

What we will speak of broadly now is the last element, the fifth bullet point phrase that has to do with protection from discharge “by statute.” This exception has nearly swallowed the at-will rule in recent decades, see, e.g., the ADA under federal law and REDA under state law. The exception was not inconsequential though even back in 1965 when the Still v. Lance opinion was handed down. Section 1981, for example, provided for protection against racial discrimination in employment, the National Labor Relations Act (NLRA) protected employees from adverse action for engaging in concerted activity to improve terms and conditions of employment, and Title VII of the Civil Rights Act of 1964, newly minted, was also by then the law of the land.

Another statutory exception would be found in the other featured part of this piece, namely the “Right to Work” law. The North Carolina version of this law has been codified in Article 10, N.C. Gen. Stat. §95-78, et seq. Under this law union membership may not be made a condition of employment, nor may any individual be required “to abstain or refrain from membership in any labor union or labor organization as a condition of employment or continuation of employment.” N.C. Gen. Stat. §95-81. In other words, neither employees nor prospective employees may be required to join a union, nor may they be disqualified from employment by union membership. “Right to Work” then refers narrowly to the right to get a job and maintain employment regardless of union affiliation or the lack thereof.

The states were first allowed to enact right to work laws under the federal labor law in 1947 by Section 14(b) of the Taft-Hartley Act. This federal law allowed states to pass state laws which would prohibit certain union security agreements (“closed shops”). North Carolina enacted its right to work law promptly in 1947, and a majority of states have done likewise through the decades since. Under North Carolina law membership in a labor union as a condition of employment is prohibited, N.C. Gen. Stat. §95-80, nonmembership in a labor union as a condition to employment is prohibited, id. at -81, and payment of union dues as a condition of employment is prohibited, id. at -82.

In conclusion, the “right to work” does not mean the right to a job in the broader sense, but refers to the statutory elimination of union membership (or lack thereof) as a factor in the state’s labor process. The at-will rule on the other hand is a separate common law doctrine which nevertheless intersects with the right to work law, the latter being a statutory “right” which is an exception to the common law at-will rule. That is, the employer is not legally allowed to terminate the employment of an at-will employee on the basis of union membership or the lack of union membership, and it is still the law in North Carolina that payment of union dues as a condition of employment is prohibited.