Right to Work vs. At-Will Employment: What Each Means for New York Workers

"Right to work" and "at will" are two of the most mixed-up phrases in American employment. Both sound like they describe a worker's right to have a job, and both are often shortened in conversation until they blur together. In fact they answer different questions. Right-to-work is about whether a worker can be required to support a union as a condition of keeping a job. At-will employment is about whether an employer can end a job without giving a reason. This article explains each idea, how they differ, and how they apply in New York. It is general information, not legal advice, and it does not cover public-sector employment, where separate rules often apply.

The short version

What "right to work" actually means

Under the National Labor Relations Act, an employer and a union may agree that membership in the union is a condition of employment. The statute allows such an agreement to take effect on or after the 30th day of employment, subject to conditions: the union must be the representative of the employees in the bargaining unit, and the agreement cannot take effect if a recent vote of the employees withdrew the union's authority to make it. The law also protects an employee from discrimination on the ground of not being a union member in certain circumstances, for example if membership was not available on the same terms as for other members, or if it was denied or ended for reasons other than not paying the dues and fees uniformly required.

The same federal law contains a provision, Section 14(b), that lets each state decide differently. It says nothing in the Act authorizes agreements requiring union membership as a condition of employment "in any State or Territory in which such execution or application is prohibited by State or Territorial law." A state that prohibits those agreements is called a right-to-work state. In those states, workers cannot be required to pay union dues or fees as a condition of employment, even if a union represents their workplace. State lists change over time as jurisdictions pass or repeal laws.

That tells us what right-to-work is not. It is not a guarantee that anyone can get a job, a promise that a job cannot be lost, or a rule about firing. It is a rule about a particular kind of union contract clause.

Is New York a right-to-work state?

On the state lists linked in the sources for this article, New York does not appear among the right-to-work states. In practical terms, that means New York law does not prohibit union security agreements the way right-to-work states do, so the federal default applies. Whether any particular worker is covered by such a clause depends on whether the job is in a union-represented workplace and what the contract says. Many New York workers are not covered by a union contract at all, and for them the question never comes up.

Counts of right-to-work states differ between sources and have changed in recent years, so this article does not give a number. If the exact current list matters, check the state-list sources linked below and the law that applies to the jurisdiction.

It is also worth knowing that New York has a separate off-duty protection. Labor Law section 201-d protects certain lawful activities outside work from employer discrimination, and it lists "an individual's membership in a union" among them, along with exercising rights under federal labor law. So New York law protects being a union member as such, which is a different thing from the contract-clause question that right-to-work addresses.

What "at will" actually means

At-will employment is a default rule about job length. If a job has no set term, courts presume that either side can end it at any time. A leading statement of the New York rule comes from the state's highest court in Murphy v. American Home Products Corp., decided March 29, 1983. In that opinion the court described a "long-settled rule" that where employment is for an indefinite term it is presumed to be a hiring at will, which "may be freely terminated by either party at any time for any reason or even for no reason." In Murphy the court declined to recognize a tort of abusive or wrongful discharge of an at-will employee, leaving that question to the Legislature, and said that the employer's right to end employment remains unimpaired "absent a constitutionally impermissible purpose, a statutory proscription," or "an express limitation in the individual contract of employment."

Two details are worth noting. First, the New York Court of Appeals has described the rule as a judicially created common-law rule, not one set by a statute. Second, "at will" works in both directions: an employee can also leave at any time, though other obligations, such as a signed contract, can change that.

Limits on at-will firing in New York

At-will does not mean employers can do anything. The presumption gives way when a law or a contract says otherwise. Examples include:

• Discrimination laws. The New York State Human Rights Law (Executive Law section 296) makes it unlawful for an employer to discharge a person because of protected characteristics such as age, race, sex, sexual orientation or disability. Other laws may add protections, and the details depend on the law and the facts.
• Whistleblower protection. Labor Law section 740 bars retaliatory action against employees who, among other things, disclose or threaten to disclose to a supervisor or a public body a practice they reasonably believe violates a law, rule or regulation or poses a substantial and specific danger to public health or safety, who provide information to or testify before a public body investigating such a practice, or who object to or refuse to take part in it. The statute as posted by the State Senate covers former employees and independent contractors as well as current employees, and it provides for a civil action within two years. The statute has its own procedures and conditions, including a requirement in many cases to first try to alert a supervisor, so the text should be read carefully.
• Off-duty activities. Labor Law section 201-d protects certain legal off-duty political activity, lawful use of consumable products, lawful recreational activity and union membership, within stated limits.
• Contracts and promises. A written contract with a fixed term or a for-cause clause can limit the employer's ability to terminate. In Murphy the court also pointed to Weiner v. McGraw-Hill, Inc., in which it held that, on an appropriate evidentiary showing, a limit on the employer's right to terminate could be drawn from an express provision in the employer's handbook on personnel policies.
• Union contracts. In workplaces covered by a collective bargaining agreement, discipline and discharge are typically governed by the contract's terms, such as a just-cause requirement and a grievance process.

Notice how the two concepts interact. A union contract can both include a union-security clause (the right-to-work subject) and replace at-will rules with a just-cause standard (the at-will subject). They are separate features that tend to appear in the same document, which is one reason the terms get confused.

Common mix-ups

• "Right to work means I can't be fired without a reason." No. That describes just-cause protection, which usually comes from a contract, not from right-to-work law.
• "At will means the employer can do anything." No. At-will is a default that is limited by discrimination, whistleblower and other statutes and by contracts.
• "Right-to-work states have no unions." No. Unions can still represent workers there; the difference is that dues or fees cannot be made a condition of employment.
• "New York is at-will, so wage rules don't apply." No. Pay, overtime and safety rules apply regardless of at-will status. Our guide to worker rights in New York outlines them.

Questions to ask about your own job

1. Is there a written contract, and does it set a term or require a reason for termination?
2. Is the workplace covered by a union contract? If so, what does it say about discipline, discharge and union dues or fees?
3. If something happened that feels like retaliation for raising a concern, which law might apply, and are there deadlines?
4. Where can I get a reliable answer? Worker centers, legal aid organizations, bar association referral services and the state Department of Labor are common starting points.

Bottom line

Right-to-work and at-will are two different rules that answer two different questions. Right-to-work concerns union security clauses, and New York does not appear on the state lists linked below. At-will is the default presumption for most New York jobs, but it is limited by anti-discrimination law, whistleblower protection, protections for certain off-duty conduct, and by contracts. Anyone facing a specific decision, such as a firing or a union dues question, should look at the actual contract or statute and consider getting advice from a qualified professional.

Sources

• 29 U.S.C. 158(a)(3), National Labor Relations Act, the proviso on agreements requiring union membership (Cornell Legal Information Institute): https://www.law.cornell.edu/uscode/text/29/158
• 29 U.S.C. 164(b), Section 14(b) of the Act, state laws on union-membership agreements (Cornell Legal Information Institute): https://www.law.cornell.edu/uscode/text/29/164
• National Right to Work Legal Defense Foundation, Right-to-Work States (state list; advocacy source): https://www.nrtw.org/right-to-work-states/
• Wikipedia, Right-to-work law (overview and state list, used as a cross-check): https://en.wikipedia.org/wiki/Right-to-work_law
• Murphy v. American Home Products Corp., 58 N.Y.2d 293 (N.Y. 1983), full opinion text: https://hallapproved.com/ny/cases/supreme/1983/5686218/
• Wieder v. Skala, 80 N.Y.2d 628 (1992), describing the at-will doctrine as a judicially created common-law rule (Cornell Legal Information Institute): https://www.law.cornell.edu/nyctap/I92_0261.htm
• New York State Senate, Executive Law section 296 (unlawful discriminatory practices): https://www.nysenate.gov/legislation/laws/EXC/296
• New York State Senate, Labor Law section 740 (retaliatory action by employers): https://www.nysenate.gov/legislation/laws/LAB/740
• New York State Senate, Labor Law section 201-d (discrimination against the engagement in certain activities): https://www.nysenate.gov/legislation/laws/LAB/201-D

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