Back Employment At-Will in South Carolina

Q: Does South Carolina practice “employment at will”? What does that mean, anyway?

A: Sheryl Sisk Schelin responds:

Employment at will is a legal concept that essentially provides freedom to both employer and employee. The worker is free to quit at any time for any reason. But likewise, the employer is free to terminate the worker at any time, for any reason, a good reason, or no reason at all.

South Carolina has adopted and codified the employment at will doctrine. Barring an employment contract, the employee will be said to be employed “at will” and thus subject to the whims of the employer as to his or her continued employment.

However, there are limits to the doctrine - some created by statute, some by courts - and many legal experts believe there has been a significant erosion of the concept over the last several decades, not just in SC but all over the United States. Essentially, as the law currently exists, you can still be fired for any reason or no reason - but the “bad reasons” are a bit trickier.

Some “bad reasons” which are not permissible, even in an employment at will situation:

1.  Public policy violations. For instance, firing a worker because he or she answers a summons to jury duty is not permitted.

2.  Discrimination. Any firing which constitutes a violation of Title VII or other federal employment laws which prohibit discrimination will be an impermissible termination.

3.  Retaliation. Employers who seek revenge against employees who engage in protecting their rights or supporting others who are doing the same enjoy protection against termination as retaliation, but within limits. Generally, the antiretaliation protection exists only when granted explicitly in a federal or state statute. Example: Title VII prohibits not only discrimination but also retaliation against employees who file complaints or testify on behalf of others who file complaints.

4.  Other statutory reasons. In SC, for example, we have a law on the books which prohibits employers from taking adverse employment actions (like termination) against workers on the basis of their off-duty tobacco use (SC Code Ann. Section 41-1-85).

Other fact patterns can support an argument that a particular termination was impermissible under the law. For that reason, individuals who believe that they have been unlawfully fired should consult a plaintiff’s employment lawyer soon after the termination takes place. Likewise, employers who have concerns about a particular planned termination should consult with in-house or outside counsel to review the employee’s situation and ensure the termination is proper.

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