Employment at-will or at-will employment essentially means that an employer can terminate an employee at any time and for any reason, whether a good reason or a bad reason, or for no reason at all. On the other side of the coin, at-will employment also means that an employee is free to quit working for the employer at any time the employee desires, for any reason or for no reason. While this may seem a bit more favorable to employers than employees due to the fact that employers typically have more leverage in the deal than do employees, employment at-will is general rule here in the Palmetto State, as well as in most other states. Employment in South Carolina is presumed to be at-will, unless the employee and the employer have an employment agreement or an employment contract for a definite term.
There are, however, exceptions to the general rule of at-will employment. An array of federal laws prohibit employers from terminating employees on the basis of gender, race, age, disability, perceived disability, national origin or ethnicity, among other protected classifications. Federal law also prohibits an employer from terminating an employee in retaliation for exercising a protected right, such as filing an EEOC charge or complaining to an employer about unpaid overtime pay.
South Carolina courts have additionally held that a cause of action for wrongful termination or wrongful discharge exists where an employee’s termination violates a clear mandate of public policy. Our courts have applied the public policy exception to at-will employment to situations in which the employer requires the employee to violate a law or where the reason for the employee’s termination is itself a violation of criminal law. South Carolina Courts have also applied the public policy exception to instances where an employee’s termination resulted from his refusal to participate in a company’s unethical conduct involving unlawful kickbacks, instances where an employee is terminated for complaining about unpaid wages and instances where an employee reports and testifies about extremely unsafe working conditions.
Another exception to employment at-will arises where an employer distributes employee handbooks to employees, as the at-will status of an employee may be altered by the terms of an employee handbook. Essentially, this occurs where an employee handbook sets forth personnel policies and procedures in mandatory and/or promissory terms. If the employer makes certain promises to the employee or sets forth mandatory procedures to the employee in an employee handbook, then both the employee and the employer have to abide by the handbook’s policies and procedures. In such instances, an employee handbook may actually create an implied contract of employment that both the employee and the employer must follow.
An employer may, however, issue an employee handbook without being bound by it and with a desire to continue under the at-will rule, by inserting a conspicuous disclaimer in the employee handbook. The disclaimer requirements can be found in South Carolina Code Section 41-1-110 and they require disclaimers to be set forth in underlined capital letters on the first page of the employee handbook and signed by the employee. Many employers continue to issue employee handbooks that fail to comply with Section 41-1-110’s bright line requirements. By doing so, such employers may be at risk of unintentionally creating an implied contract of employment with their employees.