Understanding Employment At Will

Texas employment law states that workers in the Lone Star State are employed at will.  This means that, unless prevented by statute or an express agreement (e.g. an employment contract), an employer may terminate the relationship with an employee at any time and for any reason, without having to provide justification.  Absent a few limited circumstances, an employer may also modify the terms or conditions of employment at any time, without notice and without a reason.

This at will employment relationship goes both ways, meaning that an employee may leave a job at any time, without having to provide a reason or advance notice. (It has become customary that employees offer a two-week notice as a courtesy, but this is not a legal requirement. For more on this, see our two-week notice video.)  The at-will employment doctrine applies to every Texas employer, regardless of size.  Be sure that your company’s employee handbook explains at will employment so that there is no misunderstanding among employees.

As a quick side note, we want to address a common misnomer related to the at will doctrine.  In referring to the concept of at will employment, many people will state that Texas is a “right to work” state.  While Texas indeed is a “right to work” state, “right to work” relates to union membership, not the at will employment concept.

Employment at Will Exceptions

Despite the description above, an employer cannot truly fire an employee for any reason.  As stated previously, an employer may not fire an employee if the termination is a violation of an employment contract.  Additionally, exceptions to at-will employment have come about over the years, by way of legislation and through court rulings.  These exceptions mean that an employer may not terminate an employee because of the following:

  • The employee’s race, sex, sexual orientation (only in some municipalities), national origin, religion, age, disability, genetic information, or military status. There are state and federal laws which protect employees from discrimination for these reasons, including the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act, the Genetic Information Non-Discrimination Act (GINA), Title VII, and the Texas Labor Code, among others.
  • The employee’s participation in pre-unionization or labor union activity. This includes complaining about employment conditions and acting under a collective bargaining agreement.
  • The employee’s refusal of polygraph testing. The Employee Polygraph Protection Act states employees may not be discharged for declining to take a polygraph.
  • In retaliation for participating in any EEO protected activity or for opposing an employer’s conduct that is prohibited by EEO laws. Examples include:
  • Reporting sexual harassment.
  • Filing a lawsuit alleging discrimination.
  • Intervening to protect others from harassment.
  • Refusing to follow orders that violate EEO laws.
  • In retaliation for whistleblowing. (Reporting suspected illegal activities to government authorities). However, this only applies to governmental employers or employers who are publicly traded and, therefore, subject to Sarbanes-Oxley.
  • In retaliation for filing a claim. Examples include:
  • Worker’s compensation
  • Federal wage and hour
  • OSHA
  • In retaliation for taking authorized leave pursuant to the FMLA.
  • Serving on a jury.
  • Serving in the military.
  • Refusing to commit an illegal act.
  • Other specific circumstances.

Reducing Your Risk

Every business finds it necessary to terminate employees from time to time.  A terminated employee may feel he or she has grounds to bring a wrongful termination lawsuit.  Documenting employee performance, following employment laws and adhering to proper procedures during the termination process are all steps that will minimize your organization’s risk to such a lawsuit.

Implementing effective human resources policies that are designed to convey performance and behavioral expectations, outlining rules for conduct, and clearly delineating what will not be tolerated are  good first steps in preventing lawsuits of many types.  The smartest employers have clear, comprehensive anti-discrimination, anti-harassment and anti-retaliation policies in place.  It is important to provide this information in written and electronic forms to everyone and regularly provide training to employees at all levels on the policies.  A smart employer will handle discipline consistently for all employees and address serious misconduct immediately, tolerating no form of discrimination or harassment.

If your organization sometimes issues warnings prior to terminating an employee who is breaking rules, it is very important that your company discipline policy includes a statement that employment at the company is at will.  This will give you the latitude to terminate an employee, without warning them first, without being vulnerable to wrongful termination action.

The employment lawyers at Simon | Paschal PLLC assist companies with human resources and employment law matters of all types, including preparation of corporate discipline and termination policies, discrimination and harassment prevention training, and representation in wrongful termination lawsuits.  If you need assistance with any employment law matter, contact us today.

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