At-Will Employment: What the Federal Government Can Learn from States

Introduction

On Inauguration Day in 2025, President Donald Trump issued an executive order ¹  directing the Office of Personnel Management and other federal agencies to take the radical step of removing long-standing due process protections from tens of thousands ²  of career federal employees in “policy-influencing” positions. Stripped of the safeguards enshrined in the federal merit system, these employees will lose any right to appeal their firing or other adverse action taken against them under a new regulation ³  that is based on the president’s executive order.

By creating a new class of “Schedule Policy/Career” employees, the new rule will effectively convert tens of thousands of nonpartisan federal employees to politically appointed positions under the president’s unilateral control, dramatically expanding the number of appointments from the more than 4,000 already authorized by law.

This is just one of several efforts that Trump has undertaken to transform the government workforce, from arbitrarily firing tens of thousands of federal employees during his first year in office to politicizing the federal hiring process and performance reviews for senior executives ⁴.

Trump’s effort to turn civil servants into at-will employees, which would allow them to be fired for any reason at any time, is being justified in part as a way to quickly remove “poor performers.” This approach reflects the reality that poor performance is not adequately addressed by the current, overly complex and burdensome federal performance management system ⁵.

While systematic reform of the federal government’s performance management system is needed, a major concern is that the administration’s solution will open the door to firings not for poor performance, but rather for offering professional advice or perspectives that political leaders do not want to hear. Instead of modernizing the hiring and performance management systems, this approach would send the United States and the federal workforce back to the “chaotic, corrupt, and inefficient” ⁶ spoils system of the 1800’s when government jobs were based on political affiliation rather than on merit.

Those aligned with the administration claim that removing civil service protections will improve employee and agency performance and increase efficiency without risking politicization. They point to reforms at the state level as examples of the positive impact of at-will employment.

This report provides an overview of at-will employment in state governments across the United States and examines the existing evidence of the impact of at-will employment on public employee behaviors and agency outcomes.

Three key findings emerged from our research:

	There is no evidence that adoption of at-will employment improves employee or agency performance.
	At-will employment creates risks of firings for political reasons and for issues unrelated to performance while serving as a disincentive for employees to report wrongdoing, voice objections, or express differing opinions from political leadership.
	At-will employment may shrink the talent pool for federal agencies and increase employee turnover rates, creating challenges for agencies to achieve their missions and effectively serve the public.

Taken together, the evidence suggests that a move to at-will employment could risk politicization of the federal workforce while not addressing the root causes of the federal government’s broken personnel management system. To help ensure effective service delivery to the American people, alternative, evidence-based reforms are needed to improve employee performance and hold both career and political leaders accountable.

This report is the first in a series of products and convenings under the Partnership for Public Service’s Government for a New Era Initiative, an effort focused on developing proposals and tools to make government more effective, responsive and accountable. In this work, we will challenge assumptions and examine root causes to inform bold, pragmatic and evidence-based reform recommendations.

The basics of at-will employment

At-will employment generally means that an employee may quit at any time and an employer can fire an employee for any reason, at any time ⁷. In 49 of 50 states, employment in the private sector is presumed to be at-will unless there is an employment agreement stating otherwise ⁸. However, employees are protected against firings due to discrimination, sexual harassment and for whistleblowing ⁹.

While the vast majority of private sector workers are employed at-will unless they are a member of a union, this is not the case for local, state and federal governments where the standard system of employment for decades has been a civil service merit system that prevents patronage and politically driven firings.

At the federal level, this began with the Pendleton Civil Service Reform Act of 1883 that was designed to create a stable, nonpartisan and highly skilled civil service and to put an end to the spoils system.

For most state and local governments, reform towards civil service systems started with the Progressive movement of the 1910s and was further advanced by a federal amendment to the Social Security Act in 1939 that required merit-based personnel systems for any employees administering funds related to Social Security, health or unemployment compensation ¹⁰.

During the last 40 years, some individual states have moved away from traditional merit systems, making portions or all of their workforce employed at-will. States use different terms for their at-will employees. Employees might be called “exempt” or “unclassified,” meaning they are exempt from or not classified as part of the state’s civil service personnel system.

Being employed at-will means different things across each state and even varies between agencies within states. Some states have maintained merit practices but have decentralized them to individual agencies. For example, Texas and Georgia have appeals processes for employees to use if they believe they have been wrongfully terminated but have moved the process to be internal to the agency rather than overseen by a government-wide entity ¹¹.

Other states allow individual agencies to develop their own merit systems. For example, in Kentucky, state troopers are non-merit employees, but the state police department provides them with merit protections under its own personnel system ¹². North Dakota’s higher education employees similarly are not covered by the state’s central civil service system. However, they have protection against adverse employment actions through the policies of the State Board of Higher Education ¹³.

In other cases, states have maintained more stringent merit policies for some of their agencies due to federal law, even if the workforce is comprised of at-will employees. The Intergovernmental Personnel Act of 1970, as well as statutes pertaining to certain government aid programs, include provisions that state and local agencies receiving certain federal grants or administering certain federal funds or programs must establish merit personnel systems ¹⁴. States that move to broad at-will systems handle this either by keeping certain agencies under their traditional cross-agency merit system, as is done in Indiana, ¹⁵ or by requiring agencies to adopt internal policies that meet federal requirements, as is done in Kansas ¹⁶.

A majority of states have some form of limited at-will employment for their state employees

At-will employment is common throughout the United States, with at least 34 state governments having some form of at-will employment. However, in 27 of the 34 states, at-will employment is restricted to only certain categories of employees outlined in statute.

Seven states, including Arizona, Arkansas, Georgia, Kansas, Indiana, Missouri and Texas, have broad systems of at-will employment. Typically, these states allowed current employees at the time the changes were implemented to maintain their civil service protections. However, after a certain date, all new hires and those who transfer positions or who are promoted or demoted are at-will employees. Texas, however, removed their entire civil service system at once and made all of their employees at-will simultaneously.

Note: Expanded list of states with some form of at-will employment from an academic accounting completed in 2005. 17 State classifications are based on an examination of each state’s personnel system laws and regulations ¹⁷.

There is no uniform standard for the percentage of a state’s workforce that is at-will. We gathered all available estimates of the percentage of state workforces that are classified as at-will, finding estimates for 13 of 34 states. States with limited at-will employment range from 6% of the Washington state government workforce to 49% in Idaho. States with broad systems of at-will employees range from 58% of their workforce being at-will in Kansas to all employees in Texas. This range is partially explained by Kansas being one of the most recent adopters of broad at-will employment, passing its reform in 2015, and Texas being the first, abolishing the Texas Merit Council in 1985.

Note: Based on available estimates of the state workforce employed at-will. The estimate from North Dakota does not account for the state’s higher education employees governed by the State Board of Higher Education. Sources identified in the footnote ¹⁸.

Some of the most common categories of at-will employees for states that have limited at-will employment are those whose counterparts at the federal level do not fall under the federal civil service system. For example, employees within state legislative and judicial branches are frequently exempted from civil service protections. Employees in governors’ offices and gubernatorial appointees to state agencies also are often classified as at-will, which is analogous to the at-will status of political appointees at the federal level.

Other categories of employees frequently classified as at-will do not have federal counterparts. For example, in many states, K-12 and higher education employees are exempted from civil service protections offered to other state employees. Teachers and other educational staff, however, might be represented by unions depending on the state’s labor union laws, and have guaranteed protection against adverse employment decisions for their members.

The handful of states with broad at-will employment systems tend to be led by single-party trifectas in their state house, senate and governor’s officeOnly a handful of states have broad systems of at-will employment for a majority of their state workforce, including Arizona, Arkansas, Georgia, Indiana, Kansas, Missouri and Texas. Most of these states have had single-party trifectas controlling their statehouse, senate and governor’s office since they moved towards broad at-will employment, and often long before the policy change.

Partisan Control of State Legislature and Governor’s Office in States with Broad At-Will Employment System

Source: Ballotpedia.org

t is likely that having stable partisan control of the governing institutions of the state government reduces the risk of at-will employment leading to frequent staff turnover. Legislatures and executives of the same party tend to share similar preferences and priorities that would not create an incentive to significantly alter the state’s workforce.

The federal government has experienced more frequent shifts in the partisan control of its governing institutions. Since 2001, the House, Senate and presidency have each seen partisan control of their respective institution switch four times. In an environment of frequent political change, there is more risk of at-will employment being used as a political tool to alter the makeup of the federal workforce in alignment with the priorities of each new constellation of governing institutions.

Adoption of at-will employment has typically not been undertaken as a singular goal

States that have undertaken at-will employment have typically not done so in isolation. Instead, states usually instituted at-will employment along with changes to their performance management systems, as well as reforms to their hiring, classification and compensation systems.

Governors have pitched these reform packages as an effort to modernize their state’s civil service systems. For example, former Georgia Gov. Zell Miller in 1996 described seeking to “revise the State Merit System, which was established more than 50 years ago…” ¹¹ Former Florida Gov. Jeb Bush similarly sought to reform the state’s entire civil service system and began the effort by partnering with a group of influential businesspeople to co-author a report in November 2000, “Modernizing Florida’s Civil Service System.” ⁸

When Georgia enacted legislation making all employees hired after July 1, 1996, at-will, it also included other changes such as:

• Creating a pay-for-performance system
• Decentralizing personnel functions to allow agencies to create their own positions, pay scales and hiring and firing processes
• Mandating each agency set up its own formal appeals process for adverse employment actions, including a poor performance review or a termination for cause ⁸

Other states followed similar paths. For example, when Florida passed its Service First law in 2001 that made all state supervisors at-will, it also altered the state’s classification and compensation systems. ⁸ Additionally, when Missouri expanded the number of at-will employees in 2018, the law included provisions related to hiring, transferring of employees, classification and compensation. ¹⁹

These broader sets of changes demonstrate that lawmakers did not view the transition to at-will employment as an end goal in and of itself. Instead, it was viewed as one tool in a menu of personnel system changes.

Additionally, because states undertook packages of revisions, it is more difficult to isolate the direct effect of at-will employment on the functioning and performance of state government agencies and employees. Proponents of at-will employment at times mistakenly draw conclusions about the effects of at-will employment by looking at evidence from the whole body of changes undertaken by state governments.

There is no evidence that the shift to at-will employment will improve employee or agency performance

Through a variety of academic studies, human resources professionals from states that experienced a move to some form of at-will employment have been surveyed about their views and the effects of the policy change.

These key stakeholders did not believe that at-will employment had a positive impact on employee performance. In fact, less than 20% of state government HR professionals in six states with at-will employment, including Colorado, Florida, Georgia, Kansas, Missouri and South Carolina, agreed that employees are more productive when they are employed at will. ¹⁹ Indeed, the research shows that the vast majority of HR professionals do not see any significant impact of at-will employment on performance, with only a small percentage viewing it positively. This suggests that at-will status does not boost employee productivity.

Note: Based on survey of HR professionals in six states with at-will employment. ²⁰

This aligns with other studies that have found similar results:

• Only 23.5% of Georgia state employees agreed that the civil service reform law had made the state workforce more productive and responsive to the public. ²¹
• Nearly 60% of HR professionals in four states with at-will employees were neutral or disagreed with the statement that at-will employment provides needed motivation for employee performance. ²²

While these studies indicate that the transition to at-will employment has not improved employee or agency performance, they are limited. Very little research has been conducted during the last decade as more states have increased the proportion of their workforce that is at-will. Additionally, existing research is entirely survey-based and reliant on retrospective evaluations of HR professionals and employees rather than an evaluation of performance metrics.

HR professionals recommend proven, cost-effective actions to address employee performance other than making it easier to fire employees. The Society for Human Resource Management suggests supervisors schedule regular one-on-one check-ins, offer employees support and resources, set clear expectations and goals, monitor progress and provide feedback, recognize improvement and initiate disciplinary measures, as necessary. ²³

At-will employment creates risks

While at-will employment was not viewed as enhancing employee performance, HR professionals across states that moved to at-will employment identified risks and potential downstream negative consequences.

First, HR leaders have said that at-will employment is used to pursue non-performance related firings, including for reasons related to patronage, personality conflicts and political views. Over 30% of HR professionals in four states with at-will employment agreed that the system is sometimes used to fire competent employees so that other people with friends or connections in government can be hired. ²² A similar percentage agreed that it had resulted in employees being terminated because of personality conflicts with management. ⁸ In Georgia, over 30% of HR professionals agreed that employees in their agency had been terminated for politically motivated reasons. ²⁴

Academic research has provided empirical evidence of politically motivated firings. Professor Ben Goehring found that Gov. Jeb Bush and his appointees removed at-will employees from Florida’s Department of Education after the agency was reorganized in 2001 to be more under the governor’s control. ²⁵ Goehring’s findings suggest that executives may use reduced employee protections “to remove employees in strategically important positions.” ⁸

In the federal government, both individual employees and entire offices or agencies are at risk of politically motivated firings. Without guardrails, political leaders may target individual employees who are not in completealignment with their views or use the flexibility to cut agency functions with which they do not agree. Even if Congress has authorized programs and appropriated funds, political leadership could prevent those functions from being performed if there are not adequate personnel to carry out the work.

Additionally, HR professionals have noted that at-will employment might shrink the talent pool for government agencies. In Mississippi, 41% of HR directors agreed that at-will employment makes state government jobs less attractive to current and future employees, while 37% disagreed with this statement. ²⁶ Similarly, in Georgia, over 70% of state employees agreed that there was no job security in state employment due to the change towards at-will employment. ²⁴

One indication of how the lack of secure employment affects worker decisions is annual employee turnover rates. States with broad at-will employment have significantly higher turnover rates than the federal government, ranging from more than two times higher in Texas to nearly five times higher in Missouri. While there are other labor market factors that might explain these trends (e.g., pay disparities or differences in types of roles), this is suggestive evidence of the detrimental impact of at-will employment on the attractiveness of government jobs.

Note: Based on most recently available estimate of overall employee turnover rates. Sources identified in the footnote. ²⁷

Additional evidence of heightened turnover for at-will employees comes from Mississippi. During a 10-year period from 1998 to 2007, state employees who served in an at-will capacity had an average annual voluntary separation rate over 26% higher than employees in the state’s civil service system. ²⁶

High levels of turnover create instability and are very costly. Agencies have to spend limited time and resources to recruit, hire and train new employees, while agency program administration and service delivery may suffer due to decreased capacity and loss of institutional knowledge. In the private sector, the cost to replace an employee has been found to range from 50% to 400% of the employee’s salary, depending on the role and level of experience and specialized skills. ²⁸ A significantly increased turnover rate for the tens of thousands of employees that will be covered under Schedule Policy/Career could cost the federal government hundreds of millions of dollars every year.

Finally, HR professionals have suggested that at-will employment might discourage whistleblowing. In Mississippi, nearly 30% of HR directors agreed that at-will employment discourages employees from reporting agency wrongdoing. ²⁶ When public servants do not feel comfortable whistleblowing, there is a greater risk of misuse of funds and unethical or illegal behavior. Types of wrongdoing, as defined by the federal Office of Special Counsel, include a violation of any law, rule or regulation; gross mismanagement; a gross waste of funds; an abuse of authority; a substantial and specific danger to public health or safety; and censorship related to scientific integrity or research. ²⁹

At-will employment enables easier firings and increases political pressure on employees

Although there is little evidence that at-will employment leads to better employee or agency performance, it can serve other purposes.

At-will employment, as expected, has been shown to make it easier and more efficient to fire employees. Over three-quarters of Georgia state employees agreed that at-will employment made it easier to fire employees. ²¹ An IBM Center for the Business of Government report similarly found that the time it takes state government agencies to fire an employee “decreases significantly” after at-will reforms. ¹¹ Additionally, some states have reported higher dismissal rates for at-will employees than employees with civil service protections. ³⁰

However, firings should be the action of last resort. As outlined above, replacing an employee in the private sector is very costly, with more experienced and highly trained employees costing the most. The cost is likely higher in the public sector due to the length of the hiring process, as well as the specialized skills and expertise required. Providing employees with more training or reassigning them to a role they are better equipped for may be a more cost-effective solution.

At-will employment also has been found to put political pressure on employees to make them compliant with the demands of political leaders. In two surveys of HR professionals in states with at-will employment, between 53% and 60% agreed that at-will employment helps ensure employees conform to the goals and priorities of agency heads, typically roles filled by political appointees. ³¹

Government employees should follow the directions of political leaders who set agency priorities; however, those directives must be in alignment with the Constitution, laws and ethics. At-will employment sends a message to government employees that voicing any objections to or showing any differing opinions from political leadership, even if for legal or ethical reasons, may result in their termination. Backing up this statement, nearly 40% of HR directors in the Mississippi state government said that at-will employment discourages employees from freely voicing objections to management directives. ²⁶ As Professors Jerrell Coggburn and colleagues state in their research article evaluating state at-will systems, at-will employment risks political abuse by executives by forcing employees into a “choice of being responsive to policy initiatives or facing termination.”²²

In practice, this could mean that scientific experts might hesitate to share insights on the upcoming hurricane season; an education official may not feel comfortable fully articulating challenges facing students; an economist may provide a rosy but inaccurate picture of the cost of living so as to not contradict the economic message political leaders are telling; or civil servants might sign off on a budget that underfunds long-term, critical projects for the sake of political expediency and self-protection. All these hypothetical, but very realistic, scenarios create serious risks and costs for U.S. public institutions and citizens who rely on federal employees to deliver government programs and services.

The question is whether firing employees and making them fearful of raising objections or providing independent advice is desirable. If those are the preferred results, at-will employment is an effective policy solution, but it comes at the risk of increased turnover and politization of public institutions and services, which in turn affects the outcomes and efficiency of government. As a result, the public will suffer the consequences of a less effective government.

If the goal is to improve employee and agency performance while maintaining stability in government programs and ensuring effective service delivery to the public, at-will employment is not the policy solution to achieve that outcome. Broader performance management reform that holds both carer and political leaders accountable and accounts for the entire employee lifecycle, from hiring, training and performance reviews to promotion, reassignment and termination should be the focus of reforms.

Conclusion

The antiquated framework the federal government uses to manage personnel is broken and under-resourced. It needs comprehensive systemic reform to better recruit, hire, develop and retain top talent while also dealing with – and firing when appropriate – poor performers. Federal leaders should look to states for examples of what does and does not work to improve government effectiveness. And by examining at-will employment in states, it is clear that at-will employment is not the solution if the goal is to improve employee and agency performance.

A move to at-will employment in the federal government would likely result in politicized firings unrelated to employee performance or the talent and mission needs of agencies. There is no strong evidence that at-will employment will improve employee performance or government service delivery, and by looking at state-level data, we can see that it creates other unintended consequences that would hamper, not bolster, state capacity.

Through our Government for a New Era Initiative, the Partnership for Public Service plans to continue the conversation on these key issues through a series of primers, issue briefs and convenings to evaluate and develop effective reform proposals to ensure the federal workforce is accountable, that managers can effectively deal with poor performers and there are strong incentives in place for good performance.

Project Team

Bob Cohen
Senior Writer and Editor

Samantha Donaldson
Vice President, Communications

Jessie Durrett
Director, Public Policy and Stakeholder Engagement

Jacqueline Maffuci
External Consultant

Jenny Mattingley
Vice President, Public Policy and Stakeholder Engagement

Georgeann McLemore
Associate Graphic Designer

Mary Monti
Associate Manager, Public Policy and Stakeholder Engagement

Audrey Pfund
Creative Director

Chris Piper
Manager, Public Policy and Stakeholder Engagement