As practiced in Texas, the "at will" employment doctrine has been described as meaning that "employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all." Federal Express Corp. v. Dutschmannn, 846 S.W.2d 282, 283 (Tex. 1993).  The absolute nature of this statement holds true for the employee (slavery has been abolished) but the employer's right to terminate is not as sweeping as it suggests. A more accurate statement of the law would be that an employer can terminate an employee for good cause, no cause, and some but not all bad causes.

Texas At Will Employment

As the phrase implies, "bad cause" means that the Texas employer has terminated an employee for an arbitrary or arguably unjust reason.  As a general rule, this is permissible and does not create any cause of action in favor of the at will employee. For example, it is generally permissible for a private employer to fire an employee with exemplary performance in order to make room for a relative or close friend with fewer qualifications. There are, however, certain circumstances in which it is unlawful to terminate an employee and which serve as limitations on the absolute nature "at will" doctrine.

For starters, it is unlawful under Texas law for any employer of any size to discharge an employee in retaliation for filing a workers compensation claim.

Most other significant limitations on an employer's right to terminate an employee arise out of the Federal Civil Rights Act of 1964 and related legislation.  (Commonly referred to as Title VII).  These statutes prohibit discrimination in the workplace based upon sex, race, national origin or religion.  Related statutes also prohibit discrimination based on pregnancy, disability, and age. The Family Medical Leave Act (FMLA) protects an employee's rights to take off time to care for loved ones. All of these statutes (if applicable to the employer) place limits on the right to terminate an employee.

It is also illegal to terminate a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

Most Title VII protections apply to employers with 15 or more employees. (Federal age discrimination rules begin at 20 employees but a Texas statute applies to 15 or more.) The major exception is the FMLA, which requires 50 or more employees.

Overview of the Family Medical Leave Act

For private employers, the application of the  Family Medical Leave Act (FMLA) depends on the number of individuals employed, both at a given location and overall.  The general rule is that the act applies to any employer with more than 50 employees but there is an exception for employees who work at location with less than 50 employees.  These employees are not covered even if the total number of employees for the business exceeds 50 and even though employees at larger locations are covered.  In order for this exception to be applicable, there must be a total of less than 50 employees within a 75-mile radius.

The act is applicable to any employer who has the requisite 50 employees "each working day during each of 20 or more calendar workweeks in the current or preceding calendar year." If your company is growing or shrinking (or both), this standard may require some careful calculations. For example, if you cross the 50 employee threshold before the first week of June in any given year, the act will become applicable on January 1 of the next year.  However, if you cross the threshold in early June, it will not become applicable until mid-May of the next year.

With the exception of more complex rules that apply to flight crews, a Texas employee must have worked at least 1250 hours during the preceding 12-month period in order to be eligible for the leave allowed by the act.  Therefore, part-time employees who work less than 24 hours per week will not be qualify.

Eligible employees are entitled to receive a total of 12 weeks of leave during any 12-month period for one or more of the following: birth of a child; the placement of a child for adoption or foster care with the employee; caring for a child, spouse or parent with a serious illness; or a serious personal health condition that renders the employee unable to perform his or her job.  Note that men as well as women are entitled to leave for the birth or adoption of a child. The 12 week period is extended to 26 weeks if the family member for whom care is being provided is a covered member of the armed forces.

Unless the employer and employee agree otherwise, the leave required by the act must be taken all at once for any given qualifying event.

There is no requirement that the employee be paid during the leave period.  Also, the leave to which the employee is entitled may include leave that he or she would have otherwise.  For example, if the employee is entitled to a two week vacation, he or she will only be entitled to receive an additional 10 weeks off under FMLA. (Not 2 +12 for a total of 14 weeks.)

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