Many employers are at least generally aware of the fact that Maine is an “at-will” employment state. As they say, however, a little bit of knowledge can be a dangerous thing. The purpose of this article is to alert employers to the fact that firing an at-will employee is not necessarily a risk-free endeavor.

Let’s start with the basics. It is true that Maine is an at-will employment state. Generally speaking, that means that in the absence of a collective bargaining agreement or an individual employment contract to the contrary, an employee can be discharged at any time and for any reason (including an unfair one), or even for no reason at all.

While those statements are true as a general proposition, there is one critically important caveat that must be kept in mind: at-will employees cannot be fired (or, more broadly, subjected to any adverse employment action) for an illegal reason.

So, that begs the question of what constitutes an illegal reason for firing an employee. The short answer is that there are potentially many scenarios under which firing or disciplining an employee could be illegal – far too many to fully cover in this article. That said, the following is a non-exhaustive list of illegal reasons for taking an adverse employment action against an employee:

• Because of their race, color, ethnicity, national origin, ancestry, or citizenship status;
• Because of their sex, gender, sexual orientation, or gender identity or expression;
• Because of their actual or perceived mental or physical disability;
• Because of their age;
• Because of their religion;
• Because of the fact that the employee has made a good-faith report of what she reasonably believed to be a violation of law, or of a condition that posed a threat to her own safety or the safety of others;
• Because of the fact that the employee filed a claim with the Maine Human Rights Commission or other state or federal governmental agency related to claims of workplace discrimination or retaliation;
• Because of the fact that the employee engaged in “protected concerted activity” within the meaning of the National Labor Relations Act (generally speaking, employees acting together for the purposes of collective bargaining and/or to improve their wages, hours, working conditions, or for their mutual aid and protection);
• Because of the fact that the employee asserted a claim for benefits under Maine’s Workers’ Compensation Act;
• Because the employee requested and/or used medical leave; and
• Because the employee voluntarily undertook and/or was called up for military service.

Employers should also bear in mind that even if there is a perfectly legitimate reason for taking an adverse employment action against an employee, there is always the chance that the employee might claim that the given reason was merely a pretext. In other words, employees can (and sometimes do) argue that the employer’s true motivation for taking an adverse action was illegal, notwithstanding the fact that the employer pointed to a lawful reason for taking such action.

In summary, the decision as to whether or not to discharge an employee is one that can carry significant consequences. Employers are well advised to carefully think through the process and evaluate their potential risks prior to reaching any final decisions in that regard.

Rudman Winchell’s experienced employment lawyers are more than happy to lend guidance and advice to employers as they work through difficult personnel decisions. Please do not hesitate to reach out to us if your company is considering taking an adverse employment action against an employee.

These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.


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