Employment at Will Comes with Many Exceptions in Kentucky
Tuesday, February 24, 2015

Kentucky employment law generally recognizes that most employment is “at-will” – meaning, employees serve at the pleasure of the employer, and termination of an employee does not require “just cause.” There are several circumstances, however, where laws and other factors prohibit employers from terminating an employee without a well-documented showing of cause. Employers should be aware of the circumstances under which they may not terminate an employee without just cause.

  • Employers and employees may change the at-will nature of employment through mutual agreement. An employment contract may delineate a term of employment, such as in a multi-year contract for high-level employees. Collective bargaining agreements in unionized employment settings generally contain contract provisions requiring a certain showing before employment may be terminated. There are also circumstances where an employer has led an employee to believe there is an implied contract for employment and words to that effect can be raised by an employee in a claim against the employer. If an employer has a specific policy regarding termination, the employer must follow that policy when terminating an employee. Employment at different levels of government is also generally subject to more extensive termination policies.

  • Federal and state anti-discrimination laws prevent the termination of an employee on the basis of race, color, religion, sex, national origin, age, disability, or veteran status. While there is not currently state protection of sexual orientation in Kentucky, local statutes in several cities and counties do provide some protection for lesbian, gay, bisexual and transgender employees. Employers also must make reasonable accommodations for disabled employees as well.

  • The Family and Medical Leave Act (“FMLA”) provides eligible employees with job protections through limited periods of illness or certain other situations. Employers cannot terminate an employee who is both eligible for FMLA leave and is taking time off work to deal with an FMLA-protected illness or family situation. The employer must also provide notice of the employee’s eligibility for the leave as well.

  • While many exceptions may seem obvious, some are not. The National Labor Relations Act (“NLRA”), for instance, has been interpreted by the National Labor Relations Board (“NLRB”) in a series of recent decisions to prohibit firing employees for certain critical comments made against employers on social media. Employees have certain rights with respect to their communications about the work place with other employees, even in such a public forum as social media.

  • Public policy and common law exceptions to at-will employment policies are numerous. For instance, employees cannot be fired in retaliation for reporting an employer’s violation of law to relevant authorities or for exercising a statutory right such as a filing a workers’ compensation claim.

As seen above, “at-will” employment carries with it a host of exceptions, and employers must take careful stock of the purpose for terminating an employee and what laws or regulations apply. Whenever possible, employers should also carefully document misconduct and other determining factors applicable to the termination of an employee to best defend against a claim for wrongful termination.


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