If you’re an employer in Texas then you probably already understand that Texas is an at-will employment state and has been since 1888. This means that an employer can let an employee go at any time and that an employee can quit at any time, unless an employer and employee have agreed on employment for a definite term.
However, there are a number of exceptions to this ruling that employers need to be familiar with. Some exceptions are very obvious and some aren’t. Federal law makes it illegal for most employers to fire an employee because of the employee’s race, gender, national origin, disability, religion, or age (if the person is at least 40 years old). Federal law also prohibits most employers from firing someone because that person is pregnant or has a medical condition related to pregnancy or childbirth. Many of the not-so-obvious exceptions are listed below.
Exception #1: Terminating employees for the sole reason that they refuse to perform a criminal act. Under the phrase Sabine Pilot, which is named after the first Texas Supreme Court case to recognize this cause of action, an employer in Texas may not terminate an employee for refusing to commit an illegal act. If someone is terminated for the sole reason of refusing to commit a crime, s/he may have a lawsuit for wrongful termination.
Exception #2: Terminating employees for serving on a jury.
For public policy reasons, employers may not fire at-will employees who have been called for jury duty, or end up serving on a jury. While this may seem kind of basic, for some unknown reason there are businesses that decide to fire an employee because they could not “get out” of serving, or showed up for jury duty when summoned. Even though an employee’s absence may present a hardship to the employer, especially if a case takes several weeks to complete, you cannot terminate an employee because they fulfilled their Constitutional obligation.
Exception #3: Terminating employees for voting.
In keeping with the Constitutional theme, an employer or supervisor may not knowingly refuse to permit an employee to be absent from work to vote, penalize an employee from attending the polls to vote, or terminate an employee because they stopped to vote.
Exception #4: Terminating employees because they lawfully possess a firearm or ammunition in a private vehicle.
Even though the U.S. Constitution allows individuals the right to bear arms, employers are able to impose certain restrictions on that right in order to promote a safe workplace. However, in 2011 the Texas legislature decided that some employers were going a bit too far, and extended an individual’s protection when exercising their right to be lawfully armed. As such, employers may not prohibit an employee who lawfully possesses a firearm or ammunition from transporting or storing it in a locked, privately owned motor vehicle in an employer-provided parking area.
Exception #5: Terminating employees solely because they are bankruptcy debtors.
A governmental unit or private employer may not discriminate against a person solely because the person was a debtor, was insolvent before or during the case, or has not paid a debt that was discharged in the case. The law prohibits the following forms of governmental discrimination: terminating an employee; discriminating with respect to hiring; or denying, revoking, suspending, or declining to renew a license, franchise, or similar privilege. A private employer may not discriminate with respect to employment if the discrimination is based solely upon the bankruptcy filing.
Exception #6: Terminating employees for discussing their salaries or benefits with other employees.
Federal labor law, specifically the National Labor Relations Act, allows all employees the right to discuss the terms and conditions of their employment, including wages and benefits, with each other, and affords them protection from termination when doing so.
Exception #7: Terminating employees in retaliation for making a workers’ compensation claim.
Like most states, it is unlawful to terminate an employee simply because they filed workers’ compensation claim in good faith. While we could fill up a lot of space trying to determine what “good faith” means, try and look at it from a common sense perspective – if there was an incident/accident at work, and the employee complains of an injury because of that incident/accident, and there is medical evidence to support the injury, don’t fire them or take other adverse employment action against them because they filed a claim.
Exception #8: Terminating employees because of a polygraph test.
The Employee Polygraph Protection Act (EPPA) substantially limits a private employer’s ability to use polygraph tests in the workplace. Under the EPPA, employers generally cannot: a) “require, request, suggest or cause any employee or prospective employee to take or submit to any lie detector test”; b) “use, accept, refer to, or inquire concerning the results of any lie detector test of any employee or prospective employee”; or c) “discharge, discipline, discriminate against in any manner, or deny employment or promotion to… any employee or prospective employee who refuses, declines, or fails to take or submit to a lie detector test, or… on the basis of the results of any lie detector tests.”
Exception #9: Terminating employees in retaliation for whistleblowing.
Suffice it to say that there are multiple laws, some state other federal in nature, that provide some form of protection to employees that act as whistleblowers. While some of these laws appear to be very broad in nature, for instance the provisions within the Sarbanes-Oxley Act that seek to protect whistleblowers of publicly traded companies, the False Claims Act prohibitions for terminating someone that seeks to prevent a false claim for monies to be filed against the federal government, or the Texas Whistleblower Act which seeks to protect state and local government employees who report violations of the law at work to law enforcement, the courts have made a number of exceptions to these protections. Because this is a very tricky area, the safest course of action is to not take any negative employment action against an employee who engages in “whistleblowing” conduct without first consulting with an attorney that is well versed with the law in question. To do otherwise could open up an even larger Pandora’s Box that is better left closed.
Exception #10: Terminating employees because their family medical history makes it more likely they will get a certain disease.
Under the Genetic Information Nondisclosure Act (GINA), it is unlawful for an employer “to fail or refuse to hire… or otherwise to discriminate against any employee…. because of genetic information with respect to the employee.”
Exception #11: Terminating employees to interfere with employee benefits, or retaliating against employees for participating in employee benefits.
The Employee Retirement Income Security Act (ERISA) contains an anti-retaliation provision which prevents employers from retaliating against an employee for participating in an employee benefit or pension plan. It also makes it unlawful for an employer to terminate or otherwise discipline an employee in order to prevent her from participating in an employee benefit or pension plan.
Exception #12: Terminating employees because their wages are garnished for a single debt.
In 1968, Congress passes the Consumer Credit Protection Act, which, prohibits an employer from discharging an employee because “his earnings have been subject to garnishment for any one indebtedness.”
Exception #13: Terminating employees for reporting a workplace violation to OSHA.
OSHA prohibits an employer from retaliating against an employee for filing a complaint relating to workplace safety or participating in an OSHA proceeding.
Exception #14: Terminating truck drivers for reporting a dangerous vehicle or for refusing to drive a dangerous vehicle.
Section 405 of the Surface Transportation Assistance Act (STAA) protects a commercial truck driver from being discharged, disciplined, or otherwise penalized because he has refused to operate a vehicle that does not comply with the safety-and-health-related rules applicable to commercial motor vehicles or because he has a reasonable apprehension of serious injury to himself or to the public because the vehicle is unsafe to operate.
Exception #15: Terminating physicians or hospital employees because they refuse to transfer an unstable patient or report patient dumping.
The Emergency Medical Treatment and Active Labor Act (EMTALA), which was enacted to ensure that individuals receive adequate emergency medical care regardless of their ability to pay, contains an additional exception to the at-will doctrine for employees in the healthcare industry. In sum, EMTALA imposes two duties on hospitals. First, when “any individual” comes to a hospital’s emergency room seeking examination and treatment, the hospital must “provide for an appropriate medical screening examination.” Second, if the hospital determines an individual has an “emergency medical condition,” the hospital must either: a) provide further examination and treatment so as to “stabilize” the patients, condition before discharging the patient, or b) transfer the individual to another medical facility.
By no means is this a complete list that covers every exception. Likewise, the exceptions noted only offer a brief summary of the general principal involved, and should NOT be considered a thorough discussion of the topic. Should you need more information on a particular situation then please contact me today.