What is 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.
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.
What does not destroy the at-will employment presumption?
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.
What is required to overcome the at-will presumption?
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.
Under Texas law, statutory exceptions to employment-at-will include:
- Discharge based on filing a workers’ compensation claim;
- Discharge based on membership or non-membership in a union;
- Discharge based on active duty in the military;
- Discharge based on jury service; and
- Discharge based on discrimination.
Is there a public policy exception in Texas?
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:
- Discharged for reporting illegal activities;
- Discharged for refusing to perform an act that she mistakenly thinks is illegal; or
- 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.