Is there any legal protection for an at-will employee?

By Matthew Clarke, Shareholder

Both Texas and California are “at will” employment states. That means that the employer can terminate employment for any reason or no reason. Likewise, the employee can leave the employer for any reason or no reason.  Some employees have a contract which specifies how long they will be employed.  The employer can terminate them for good cause.  This type of employee is not at-will.

There is a basic protection.  The employer cannot terminate an employee for an illegal reason. (See our article on “causation” in wrongful termination cases HERE.)  It’s probably well-known that an employer cannot terminate an employee because of the employee’s race, ethnicity, gender, etc., other protected categories or classes.

In California, there is also a provision that says an employer may not terminate an employee if to do so would violate public policy.  More on that in another blog entry.  Texas has no such broad public policy protection.  This is one of many differences between Texas and California.  The legal protection for at-will employees is greater in California.

Hobson’s Choice:  Your At-Will Job or Criminal Prosecution?

There is one small protection in Texas for at-will employees.  One example is found in Sabine Pilot Service v. Hauck, 687 S.W. 2d 733, 735.  In Sabine Pilot, the Texas Supreme Court recognized an exception to the at-will doctrine.  An employer may not fire an employee who refuses to engage in an illegal act.  That is, if the decision to fire the employee is based solely on the refusal to engage in the illegal act.  In other words, the employee may sue for wrongful termination if the employee is fired because he or she refused to perform an illegal act.

To establish wrongful termination, the employee would have to prove three things: (a) the employee was employed at-will; (b) the employee refused to perform an illegal act; (c) the employee was terminated solely because of the refusal to perform the illegal act.   The third element will be difficult to prove. The employer will likely have Another reason why the employee was terminated. This may be a legitimate legal reason for the termination or it may be a pretext.  If the employer comes up with an alternative reason for the termination, the employee will be forced to overcome the pretextual reason to win the case.

For example, assume your employer orders you to dump hazardous materials into a storm drain.  You bravely refuse.  (Note: the illegal act must be one that carries with it criminal penalties, not just civil penalties.)  The employer terminates the at-will employee.  The at-will employee must prove that his or her refusal to dump hazardous materials was the sole reason for the termination. That’s a big burden. Obviously, if the employer terminates the employee shortly after the employee refused to dump the hazardous materials, there is a good circumstantial case. But if the employer has previously reprimanded the employee for poor performance, the employer will have a convenient excuse why the employee was terminated.

Sabine Pilot does not apply to certain factual scenarios:  (a) merely reporting illegal acts; (b) refusing to engage in act that only carries civil penalties; (c) asking about whether conduct is illegal, e.g., Q: “Hey boss, is it legal to dump haz mat into a storm drain?” A:  “You’re fired.”  Finally, the Sabine Pilot case does not apply to employees who require good cause for termination.  I guess these employees are already protected by the requirement of “good cause.”

The bottom line under Sabine Pilot is that an at-will employee has a fighting chance if he or she refuses to engage in an illegal act and is terminated for that sole reason.

More Reading from Kelley Clarke PC Employment Lawyers:

Read about collecting attorney fees in California wrongful termination lawsuits HERE.  Can an employer fire you if you refuse to use your vehicle at work?

Read about additional employment law topics in our law blog.  We have the following articles that may be interesting to you:

What to do when faced with discrimination or harassment in the workplace

Saving your electronic evidence in workplace wrongful termination, discrimination and harassment

Sexual Harassment trials

Reinstatement of Government Employee Who was Terminated by the County of Santa Barbara

Sexual Harassment by Supervisor of an Office Cleaning Company

What is “Causation” In Wrongful Termination Cases?

Watch our Short Employment Law Video Here.

If you any questions or concerns about employment law, please contact Kelley Clarke PC