What is an “At-Will” Employment State?

Since 1888, Texas has been an at-will employment state. As an at-will state, employment in Texas may be terminated by an employer or an employee for a good reason, a bad reason, or simply no reason at all, absent a specific agreement to the contrary. However, termination by the employer may not be effectuated for an illegal reason. Reasons that are not legal are generally those based on discrimination or harassment because of an employee’s membership in a protected class, engagement in a protected activity, or retaliation for an employee complaining about discrimination or harassment based on their membership in a protected class or engagement in a protected activity.

For more than a century, Texas courts have tightly adhered to the employment at-will doctrine. The aforementioned illegal reasons for termination of employment can be found through numerous exceptions to the at-will doctrine under federal and state statutory laws, as well as one exception under Texas common law. Additionally, some cities within Texas have local ordinances that further limit an employer’s right to terminate an employee at-will. The number of employees a Texas employer must have before a statutory exception applies varies depending on the statue at issue. In many cases, smaller employers may be excluded from these laws.

What are the Texas Employer Discrimination Acts?

What is The Texas Commission on Human Rights Act (TCHRA)?

The Texas Commission on Human Rights Act (TCHRA) prohibits an employer from terminating or discriminating against employees or employment applicants based on their race, color, disability, religion, sex, national origin, or age. Retaliation is also prohibited under the TCHRA against an employee for engaging in protected activity, such as by opposing a discriminatory practice, filing a complaint or charge against their employer, or participating in any investigation, proceeding, or hearing. When resolving these types of disputes, Texas courts will also look to analogous federal law, most prominently Title VII of the Civil Rights Act of 1964.

What is Title VII?

Title VII prohibits an employer with 15 or more employees from discriminating on the basis of race, sex, national origin, and religion. Title VII also prohibits retaliation against an employee who opposes or participates in an investigation of such unlawful conduct. Courts have interpreted these rules to now also prohibit harassment in the workplace based on protected classes under Title VII, such as sex, race, religion, and national origin. A post-Civil War statue (42 U.S.C. § 1981) also prohibits discrimination and retaliation based on race, but importantly does not require that the employer have any more than one employee. 

What is The Age Discrimination in Employment Act (ADEA)?

The Age Discrimination in Employment Act (ADEA) prohibits discrimination based on age for employees age 40 and over, as applied to employers with 20 or more employees. Age discrimination can occur for many different reasons, like if an employer wants to hire younger workers for less pay or when an employer wants an employee they assume will have greater technological proficiency. Regardless of what employers believe about people of a certain age, they can’t use these biases to decide the fate of an employee or job applicant under the ADEA. The Texas Labor Code also makes it unlawful for an employer to retaliate against an employee who makes a claim of age discrimination against their employer.

What is The Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) prohibits discrimination against applicants and employees in all terms and conditions of their employment, as applied to employers with 15 or more employees. A qualified, disabled individual under this law is someone who can perform the essential functions of their job position with or without a reasonable accommodation. For the ADA to protect an employee, they must have a record of a substantial impairment, as opposed to a minor one. Substantial impairment includes a condition that significantly limits a major life activity, such as walking, speaking, hearing, or seeing. An employer subject to the ADA must reasonably accommodate the individual with a disability, unless such an accommodation would create an undue hardship for the employer.

What is The Texas Labor Code and the federal Family and Medical Leave Act (FMLA)?

The Texas Labor Code and the federal Family and Medical Leave Act (FMLA) also have rules stating how employers must treat individuals with disabilities. The FMLA applies to private employers who employ 50 or more employees and all state and local government employers regardless of their number of workers. An employee covered under the FMLA must have worked for their employer for at least 12 months with at least 1,250 hours of work prior to their requested leave and must work at a location that employs at least 50 people within a 75-mile radius. The FMLA entitles such covered employees to take up to 12 weeks of job-protected leave per year for certain medical or family-related reasons without adverse consequences from their employer.

What are GINA, WARN, USERRA, NLRA?

Other federal statutory exceptions to the at-will doctrine include those concerning the use of genetic information in making employment decisions under the Genetic Information Nondiscrimination Act of 2008 (GINA), advance notice of plant closings or mass layoffs to employees of certain larger employers under the Workers Adjustment and Retraining Notification Act (WARN), and the right to time off to serve in the military pursuant to the Uniformed Services Employment and Reemployment Rights Act (USERRA). Lastly, employers are prohibited from interfering with an employee’s rights to self-organize, collectively bargain, and engage in other protected, concerted activities under the federal National Labor Relations Act (NLRA), even within a non-unionized workforce.

Are there Additional Exceptions to Texas “At-Will” Doctrine?

Numerous Texas state statutory exceptions to the at-will doctrine that have yet to be mentioned also exist, including but not limited to those concerning worker’s compensation retaliation, jury service, child support withholding orders, voting rights, safety reports, and whistleblower actions reported by public employees in good faith. Finally, there is only one narrow common law public policy exception to the at-will doctrine that was stated by the Texas Supreme Court in Sabine Pilot Service, Inc. v. Hauck (1985). Here, the Court declared that an exception to at-will employment exists where the sole reason for an employee’s termination is their refusal to perform an illegal act that would subject them to criminal liability.

In summation, Texas (like nearly every other state) utilizes at-will employment as the default relationship when no separate agreement exists between the employer and the employee. Here, an employer or an employee can effectuate separation from employment at any time, with or without notice, for any lawful reason. At-will status restricts employers however, in the sense that they cannot terminate an employee for any unlawful reason, such as those pertaining to an employee’s protected class status or their engagement in protected activity. Therefore, employers are by no means “bulletproof” under the at-will doctrine, as evidenced by multiple exceptions under federal law, Texas state law, and Texas common law that generally protect employees from discrimination, harassment, and retaliation where a protected class or protected activity applies. Learning your rights under employment law is important, so contact us if you need an employment lawyer today. 

Speak with an experienced Employment Lawyer today if you feel you have been wrongfully terminated

In the United States, a variety of federal laws protect workers’ rights. In the state of Texas, we have additional laws that protect workers under the Texas Labor Code. When employers do not obey these laws and regulations, employees have the right to take action without employer retaliation.

Ross • Scalise Employment Lawyers is committed to helping workers by upholding the law and holding companies accountable for their actions. If your employer has discriminated against you, harassed you, retaliated against you for complaining about illegal actions, stolen your wages, or otherwise wronged you, take a stand. You can start by talking to a seasoned Austin employment lawyer at our firm today. Contact Us online or Call Us at 512.643.6388 to request an appointment.