There exists much confusion as to what it means that North Carolina is a right-to-work state. I have had clients tell me that employers can require them to sign non-compete agreements because North Carolina is a right-to-work state. I have also been told that employers cannot fire employees in North Carolina because it is a right-to-work state or that they can fire them because it is a right-to-work state. Others have asserted that employees are required by law to give two weeks’ notice before quitting, again because it is a right-to-work state. None of these is true.
Why so much confusion, even among many lawyers? The answer lies in the misunderstanding of two very different employment concepts: right-to-work and employment-at-will. Oftentimes, people use the term “right-to-work” when they mean “at-will.” At-will employment refers to the right of both employees and employers to terminate the employment relationship with or without cause or notice or both. Contrast this concept with “right-to-work,” which means an employer may neither require nor prohibit an employee from becoming or remaining a member of a labor union as a condition of employment or continued employment. Employers also may not compel employees to pay dues or fees to labor unions. The policy is grounded in the belief that the right to live includes the right to work.
Rarely do employers have trouble understanding “right-to-work” once the concept is explained. “At-will” employment poses greater issues. First, the ability to terminate an employee for any or no reason is not without constraint. The reason, if one exists, must not be an illegal one. Statutes prohibit discrimination on the basis of sex, race, national origin, religion, disability, age, veteran-status, and genetic information. Local ordinances may prohibit discrimination based on sexual orientation or family status. Terminating an employee because of his or her possessing one or more of these protected characteristics is unlawful notwithstanding the at-will nature of the employment relationship. The termination is also unlawful if against public policy. An example of a termination that is against public policy is firing an employee for his or her refusing to violate the law when asked to do so, such as by lying under oath on the employer’s behalf or falsifying records.
Second, employers often try to restrict an employee’s ability to quit without giving notice. The “at-will” concept works both ways – both the employer and the employee may terminate the employment relationship with or without cause or notice. There is no law that requires employees to give two weeks’ or a month’s notice before leaving. An employer may request such notice as a courtesy to permit transitioning and training, and may condition payment of accrued but unused vacation on receipt of such notice. But, the employer may not require the employee to provide the notice and work through the notice period. It is not only North Carolina’s policy of “at-will” employment that mandates this result but also the Thirteenth Amendment’s prohibition against involuntary servitude.
Third, many employers put too much stock in probationary periods, stating that employment may be terminated for any reason during the first say 90 days of employment and suggesting that the employee’s position is secure after successfully completing the probationary period. The laws against wrongful discharge, meaning termination for unlawful reasons (i.e., those that are discriminatory or against public policy), apply throughout the entire duration of the employment relationship, including during probationary periods. There is no period during which an employer may terminate an employee for unlawful reasons. Employers who state or suggest that continued employment is assured following the probationary period run the risk of jeopardizing their ability to rely on the benefits to them of “at-will” employment. They may be creating contracts of employment.
No employee in North Carolina is required to do anything simply because of North Carolina’s being a right-to-work state. If an employer suggests that an employee must by law agree not to compete or give notice before quitting, the employer is misspeaking. The employer may well desire these things for good business reasons, and an employee may be willing to provide them under the circumstances, but the law does not mandate them in the name of “right-to-work.”
— Melanie S. Tuttle
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