From time to time I get questions from employees asking what legal recourse they have against their employer for what they perceive as unfair conduct. Usually, this stems from an employee being mistreated and/or fired. My experience in this area of law stems mostly from my previous experience as general counsel for a corporation, which was like a crash course in labor and employment law, dealing with everything from employment contracts, non-compete agreements, union grievances, and collective bargaining agreements, to discrimination claims and OSHA complaints. Whew! That kept me and the human resources department very busy. Fortunately, the head of the human relations department was outstanding. It takes a lot of talent and experience to be a good HR manager, but that’s another topic.

These days, more often than not, I represent small businesses and refer cases from employees to other lawyers who specialize in plaintiff’s work, but I will consider representing an employee in an appropriate case, assuming there is no conflict of interest.

The first thing you need to understand is that Texas is an “employment at will” state. Employment at will doesn’t offer much protection to an employee who has been treated badly, but it does provide for freedom and flexibility. It provides you the freedom to tell a boss to take this job and shove it. The flip side of that is that it often gives a boss the same freedom to tell you to hit the road, Jack. Whether you like it or not, Texas is an employment at will state and complaining about the unfairness of that doctrine won’t get you anywhere. Yes, the law does often allow bosses to be unfair jerks without getting sued. It also allows employees to be slackers and screw-ups without getting sued. Mostly, it is a free market where employees and employers are free to come and go without the involvement of the courts. But that is not to say there are no legal protections.

In legal terms,”employment at will” is a legal doctrine in which either the employee or an employer can end the employment at any time, with or without notice, for any reason, or for no reason. Because the employment can be ended “at the will” of either party, it doesn’t matter why or how the relationship ended, unless some other legal right is implicated.

Most employees in the private sector in Texas are “at-will.” Unless you have a contractual agreement that provides you are hired for a certain long period of time or unless it provides that certain procedures, notices or requirements have to be met before termination or other adverse action can be taken, you are probably at will.
Some people have a hard time grasping the at-will concept, which is probably because so much is tied up in our jobs that we find it hard to believe that our employees really can be at the whim of an employer. Often people will tell me that they can prove their boss was wrong for firing them. Sadly, the answer is often “so what?”

Even if you can prove that your firing was wrong and that you should get your job back, the employer could turn around and fire you again the next day. Let’s say your employer fires you because you were late. You can prove that you were on time. So? Even if you can prove that you should not have been fired, the employer can come up with another reason. The employer doesn’t even need a reason, just like you don’t need a reason to quit. (A bogus reason for firing you that is used as a cover-up for illegal discrimination is another matter. That is called “pretext” and if you can prove it, you can win a discrimination case – assuming that discrimination laws apply to your case).

Union employees are an exception. If there is a collective bargaining agreement between the union and the company that alters the at-will nature of your employment, then you may have a case if the company didn’t follow the rules set forth in the collective bargaining agreement. If you are a union employee, you are probably already aware of some of these procedures. Talk to your union representative.

Likewise, if you are a government employee, you are protected by the applicable civil service laws.

But even you if you are a non-union and non-government employee, it is possible you actually have an agreement that takes you outside of the employment at will status. If you have an agreement to remain employed for a certain length of time or until a certain date (and assuming that agreement is enforceable) then you are not an at-will employee. Contracts of that nature usually only allow an employee to be fired for certain causes, such as poor performance, or for misconduct.

It is also possible that you have an employment agreement that requires notice or imposes some other requirement, such as progressive discipline or warnings before you can be fired. Sometimes an employee handbook or memo might be construed to form a contract, even if you didn’t sign it. You don’t necessarily need to have signed a written contract to have a contract that takes you outside of employment at will. Generally, employee contracts and handbooks used by larger companies are carefully written by lawyers to remain “at-will” but this is not always the case. So if you find yourself in this situation, you need to look through all of these materials and bring them with you when you meet with a lawyer.

Also, discrimination and harassment based upon race, age, sex, marital status, pregnancy, religion, national origin, and disability are not excused by the employment at will doctrine. Most people are aware of these employee protections, but many people are not aware that these laws do not apply to all employers. Employers with fewer than 15 employees in each of the 20 or more calendar weeks of the current or proceeding calendar year are not covered by these laws in Texas. So if your employer was small and the reason you were fired was discriminatory, you may be back to looking to see if you had an employment contract.

A private sector employee may have a common law cause of action against an employer who retaliates against the employee because the employee refused to do something illegal. This should not be confused with “whistleblower” statutes. Whistleblower statutes protect governmental employees from adverse actions taken in retaliation for the employee blowing the whistle on some improper or illegal conduct undertaken by the employer. Private sector employees do not enjoy the same protections for blowing the whistle on their employers, but at least may have a case if they are fired for refusing to do something illegal.

Finally, there are a number of state and federal laws that protect workers, such as minimum wage and overtime laws, workers compensation and occupational safety laws. These laws can have implications when an employee is fired. For example, the Texas Payday Law requires an employer to timely pay employees, and this includes the last paycheck(s) for an employee who has been fired. The law also protects employees from retaliation for making a worker compensation claim and in connection with OSHA matters.

So as you can see, there are a lot of questions that have to be asked before a lawyer can answer this question, and this subject involves laws from a variety of sources, such as the common law of Texas, plus state and federal statutes. The information above is just a general overview and is not a substitute for legal advice from your attorney.

If you think you have a case against your employer, you should consult with an attorney, and quickly, because there are short deadlines for taking action in many of these kinds of cases.

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