Texas, and 48 other states, adheres to the presumption of at-will employment, and has done so for more than 100 years. The general at-will rule is that, absent a specific agreement to the contrary, employment may be modified or terminated by the employer, or the employee, at will. As a general rule, employment for an indefinite term is presumed to be employment at will.

This means an employer may discharge an employee for good cause, bad cause, or no cause at all, as long as it does not violate the law. For example, state and federal law prohibit discrimination and retaliation, so employers cannot terminate an employee based on his or her gender, race, age, national origin, color, or religion, or for opposing an unlawful employment practice. Texas therefore does not recognize a claim for wrongful termination in the absence of an employment contract or statute.
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However, this presumption does not preclude employers and employees from forming subsequent contracts limiting an employer’s right to discharge an employee, so long as neither party relies on continued employment as the consideration for the contract. Thus, despite the at-will presumption, employers may nonetheless restrict their ability to discharge employees by expressly providing for employment for a specific period of time, for example, or by limiting any terminations to those for good or just cause.

The presumption that employment at will is difficult to overcome and an employer’s modification of the presumption must be express and cannot be implied.
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Thus, an employee manual or handbook vaguely stating that an employee may be dismissed for cause does not modify the at-will employment rule by requiring that dismissal be only for cause. Nor is the manual’s requirement that employee records state one of several bases for termination a specific agreement that alters the relationship. Similarly, the Texas Supreme Court has ruled that comments by the employer that assure the employee she will always have a job if she works hard do not destroy the presumption of at-will employment.

A contract that alters the at-will relationship must unequivocally indicate the employer’s definite intent to be bound not to terminate the employee except under clearly specified circumstances.

It is the employee’s burden to prove that the employer expressly, clearly, and specifically agreed to modify the employee’s at-will employment status.
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Under Texas law, statutory exceptions to employment-at-will include:

1. Discharge based on filing a workers’ compensation claim;
2. Discharge based on membership or non-membership in a union;
3. Discharge based on active duty in the military;
4. Discharge based on jury service; and
5. Discharge based on discrimination. 

There is a public policy exception to at-will employment in Texas, but it is exceptionally narrow. The Sabine Pilot exception affords employees protection from retaliatory discharge for refusing to engage in illegal conduct.

To prevail under the very narrow Sabine Pilot exception, the discharged employee must prove his or her discharge was for no reason other than his or her refusal to perform an illegal act. Attempts to expand the public policy exception have failed.

There is no public policy exception for employees who are:

1. Discharged for reporting illegal activities;
2. Discharged for refusing to perform an act that she mistakenly thinks is illegal; or
3. Discharged for inquiring into the legality of an act later determined to be legal.

The exception does not extend to private whistleblowers, although the Texas Whistleblower Act offers some protection from retaliation, which will be discussed in depth in a future blog.

Despite this at-will presumption, Texas employees are still granted significant protections in their employment under state and federal law. Workers who are unsure whether their employment contract has been violated or whether they may have a claim for an unlawful discharge should seek the guidance of a reputable employment attorney.

We recently published an update pertaining to recent Texas court decisions, available here. This week’s blog reviews recent Texas legislative actions affecting employment law.

In addition to the new sexual harassment protections that we wrote about here, the Texas Legislature has passed other employment legislation in its most recent regular session and two-specially called legislative sessions. 

Texas is one of 19 states that have passed statutory liability protections for businesses against claims arising from the COVID-19 pandemic Authored by Sen. Kelly Hancock, the Pandemic Liability Protection Act (PLPA) was passed by both chambers by supermajorities and went into effect on June 14, 2021. The PLPA grants retroactive liability protection for small and large businesses for claims commenced on or after March 13, 2020. It does not however, provide businesses an absolute immunity shield. Although high thresholds, claims can still be brought for a pandemic-related injury or death if the business:

1. Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
2. Knowingly failed or refused to comply with government standards, guidance, or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

Merely asserting that a defendant knew of and failed to warn of a condition that was likely to result in the exposure to COVID-19 and knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols is insufficient to establish a claim. Instead, the plaintiff must provide reliable scientific evidence that shows the defendant’s failure to warn of the condition or failure to comply was the cause in fact of the individual contracting the disease.
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The PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. Notably, the law does not create a private cause of action. 

While recreational marijuana is still prohibited in Texas, earlier this year, Governor Abbott signed into law HB 1535, which went into effect September 1, 2021. The new law doubles the permissible amount of THC in low-THC cannabis, from 0.5% to 1%. It also adds cancer, chronic pain, and post-traumatic stress disorder to the permissible list of medical conditions for which low-THC cannabis may be prescribed.
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This new law significantly expands the number of people potentially eligible for a prescription, as the previous law only permitted prescriptions for epilepsy, a seizure disorder, multiple sclerosis, spasticity, sclerosis, autism, and terminal cancer. The new law also permits a prescription of low-THC cannabis in an approved research program.

Under the terms of the bill, one or more compassionate-use institutional review boards would be established to evaluate and approve proposed research programs that would study the medical use of low-THC cannabis in treating specific medical conditions. The boards would also oversee patient treatment that was undertaken as part of an approved research program, including the certification of treating physicians.

The law instructs the relevant state agencies to issue rules and guidance by December 1, 2021. Although the new law does not contain any employee protections for use of cannabis, employees may request accommodations for permission to use low-THC cannabis for medical purposes.

​SB 484 went into effect on September 1, 2021 and provides enhanced employment protections for active service members. Texas employees who are called to active duty or training with state military forces have long been protected from termination and had certain reinstatement rights after returning from duty or training, but an aggrieved individual previously could only file a complaint with the Texas Workforce Commission. The new law gives employees the right to hire a lawyer and file a civil lawsuit in state court, and further permits recovery of damages, costs, and attorneys’ fees.

​Governor Abbott also signed into law the Firearm Carry Act of 2021, HB 1927 (FCA), which went into effect on September 1, 2021. The FCA generally permits most Texans age 21 and over to carry holstered handguns without training or a license-to-carry permit if they are not otherwise prohibited from doing so by state or federal law. The new law does not prevent or otherwise limit the right of a public or private employer to prohibit persons from carrying a handgun on the premises of the business, but most employers cannot prevent employees from keeping a firearm in their locked vehicles in a parking lot. 

Several bills were introduced during the regular legislative session to require private employers to provide employees with paid sick leave and they all failed. Cities have attempted to pass laws requiring sick leave, but they have similarly been thwarted. The City of Dallas passed a paid sick leave ordinance on August 1, 2019 for employers with six or more employees, but the Eastern District of Texas struck it down as preempted by the Texas Minimum Wage Act and in violation of the Texas Constitution.
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There is therefore still no state or local law that requires Texas employers to provide paid sick leave. 

​For a broad overview of the National Labor Relations Act, see our previous blog here. 

​At its core, a strike is a cessation of work, a refusal to continue work, a slow-down, or other concerted activity initiated by employees for the purpose of slowing down the employer’s output.
Data from the Bureau of Labor Statistics showed an upsurge in major strike activity in 2018 and 2019, marking a 35-year high for the number of workers involved in a major work stoppage over a two-year period. Many of those strikes made national news. 

In 2018, there was a wave of teachers’ strikes throughout the U.S. demanding raises, where in one-third of the country, the average teacher earns less than $50,000 per year. In the fall of 2019, there was a strike by over 40,000 GM autoworkers over plant shutdowns and wages and benefits and another strike by over 20,000 AT&T workers who alleged the company was not bargaining in good faith for a new contract.
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All employees—whether they are unionized or not—have the right to participate in a protected strike, picket, or protest regarding work-related issues. However, the law places limitations and qualifications on the exercise of that right, some of which we will discuss below.

Section 7 of the National Labor Relations Act states in part, “Employees shall have the right. . .to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.” Among those concerted activities is the right to strike.

Section 13 of the Act also addresses the right to strike, stating: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”

There is no federal law giving public-sector workers the right to strike, but a dozen states have enacted laws giving public-sector workers certain strike rights, including Alaska, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, Montana, Ohio, Oregon, Pennsylvania, and Vermont. The vast majority bar strikes that would endanger public health, safety, or welfare, and for that reason, police and firefighters are prohibited from striking in almost every state.

The 38 states that do not recognize a permissive strike right either do not recognize their right to strike or have an outright prohibition against public sector strikes. Section 617.003 of the Texas Government Code expressly prohibits public employees from engaging in strikes or organized work stoppage against the state or a political subdivision of the state.
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Not all employee strikes are lawful. Whether a strike is lawful depends upon its purpose, its timing, and the conduct of the strikers. 

A strike is legal and protected by the Act if the employees are striking for economic reasons or to protest an unfair labor practice by the employer.

Economic strikers seek to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions. They cannot be discharged, but they may be replaced. If the employer hires bona fide permanent replacements to fill the jobs of the economic strikers when the strikers apply unconditionally to return to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings occur once they make an unconditional request for reinstatement.

Unfair labor practice strikers seek to protest an unfair labor practice committed by their employer and they may not be discharged or permanently replaced. When the strike ends, absent serious misconduct on their part, they are entitled to have their jobs back even if employees hired to do their work have to be discharged.
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If the Board finds that economic strikers or unfair labor practice strikers who have made unconditional requests for reinstatement have been unlawfully denied reinstatement by their employers, the Board may award the strikers backpay starting at the time they should have been reinstated.

A strike is protected under the Act only if it is a “complete” strike; striking employees lose the protection of the Act if they engage in a “partial” strike of picking and choosing the work they will do or when they will do it or otherwise attempting to set their own terms and conditions of employment. Additionally, a strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be unlawful.
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Section 8(b)(4) of the Act prohibits strikes for certain purposes even though they are not necessarily unlawful if achieved by other means. An example would be a strike to compel an employer to cease doing business with another employer. While it is not unlawful for an employer to voluntarily stop doing business with another employer, and it is not unlawful for a union to request that it do so, it is unlawful for the union to strike to force the employer to do so.

A strike that violates a no-strike provision of a contract is not protected by the Act and the striking employees can be discharged or disciplined—unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. However, not all refusals to work are considered strikes and thus violations of no-strike provisions. Employees may participate in walkouts due to abnormally dangerous conditions, for example.

Section 8(d) provides that when either party desires to terminate or change an existing collective bargaining agreement, it must comply with certain conditions, and if these conditions are not met, a strike to terminate or change a contract is unlawful. 

​Strikers who engage in serious misconduct during a strike may be refused reinstatement to their jobs. Serious misconduct includes violence and threats of violence. The U.S. Supreme Court has ruled that “sitdown” strikes, where employees simply stay in the plant and refuse to work, thus depriving the owner of the property, is also not protected.

A union may waive, through bargaining, the employees’ right to strike during the term of a collective bargaining agreement, and may contract for a no-strike obligation, either express or implied. A broad and unqualified no-strike provision may prohibit a strike contesting any portion of the contract’s provisions, including an employer’s refusal to comply with an arbitration award.
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Unfair labor practice strikes are immune from a general no-strike clause if the practice is serious and destructive of the foundation of the agreement, and even an explicit no-strike clause does not waive the right of employees to strike against unfair labor practices. An agreement to arbitrate labor disputes gives rise to an implied obligation not to strike over the specified disputes. 

​Most private sector employees have a protected right to strike to protest employer decisions. As this blog has illustrated, however, there are critical limitations and qualifications on that right that employees and labor organizations need to keep in mind.