The "Right to Work" for a Political Subdivision in an "At-Will" State

Published: 1/12/21 (Tue)

Provided by Brian D. Schmidt, Attorney at Law and partner at Smith Porsburg Schweigert, Armstrong, Moldenhauer & Smith

You have probably heard that North Dakota is a “right to work” state. You have probably also heard that North Dakota is an “at-will employment” state. Both of these terms are commonly used, but also commonly misunderstood.

First, we have to understand how each term is defined. “Right to Work” generally means that an individual’s employment cannot be conditioned on their membership or non-membership in a labor union or organization. N.D.C.C. § 34-01-14. Further, “at-will employment” means “the employer can terminate the employee with or without cause.” Jose v. Norwest Bank North Dakota, N.A., 1999 ND 175, ¶ 10, 599 N.W.2d 293. When read together, one could simply conclude an employer can terminate any employee for any reason as long as their employment is not subject to membership in a labor organization; however, it is not that simple.

The North Dakota Supreme Court has “recognized public policy exceptions to the at-will employment doctrine.” Id. For example, Title VII of the Civil Rights Act of 1964 (as amended) and the North Dakota Human Rights Act place substantial limitations on “at-will employment.” Under these statutes, an employer cannot terminate an employee because of their race, national origin, gender (including sexual orientation), religious beliefs, skin color, etc. While this list is not all-inclusive, it illustrates the point that “at-will employment” has substantial limitations.

Additionally, as a public entity, you have to ensure whether an employee has a “property interest” in their employment before you terminate them. “A property interest arises from a legitimate claim of entitlement to continued employment.” Voss v. Housing Auth. of the City of Magnolia, Arkansas, 917 F.3d 618, 625 (8th Cir. 2019). A “property interest” may be created by statute, regulation, ordinance, employment contract, and even personnel policies contained in an employee handbook or manual. Livingood v. Meece, 477 N.W.2d 183 (N.D. 1991). A “property interest” may arise if there is a mutual understanding that an employee is to be employed for a specific period of time or that they cannot be terminated without cause. It is not always clear whether a “property interest” exists and it generally requires some degree of legal analysis.

If an employee has a “property interest” in their employment, they must be afforded due process prior to termination to satisfy the Fourteenth Amendment of the Constitution. In the public employment context, due process includes both pre-termination and post-termination proceedings. A failure to follow this procedure, can result in a lawsuit for violation of the Constitution, money damages, and you can be liable for the employee’s attorneys’ fees.

Put simply, it is true that North Dakota is a “right to work” state and recognizes “at-will employment.” However, this does not necessarily mean you can terminate anybody at any time for any reason. Before you terminate an employee, make sure to consult an attorney as there may be certain requirements you must satisfy before doing so. This will vary drastically between various political subdivisions, employment arrangements, and the facts of each case. There is no “one-size-fits-all” approach and each employment decision may require an analysis of different aspects of the law. Ensuring you are on solid legal ground and following all appropriate procedures on the front end of a termination decision can save you from years of litigation, frustration, and unnecessary attorneys’ fees.

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