What duties do employers owe employees? In an employment relationship, both the employer and the employee are required by common law to fulfill certain duties. These duties define the nature of the employment relationship and form the basis for the respective liabilities between the employer and the employee, both during employment and after the relationship is severed.

Texas is an employment at will state. The doctrine of at-will employment states that, absent a contractual or statutory provision to the contrary, the employer or the employee may terminate the employment relationship at any time, with or without cause. There are several very narrow exceptions to employment at will doctrine.

What are the public policy exceptions to the "at-will" doctrine? Citing public policy concerns, the Texas Supreme Court held that an employer may not discharge an employee because of his or her refusal to commit an illegal act. The court stated that this narrow exception to the at-will doctrine "covers only the discharge of an employee for the sole reason that the employee refused to perform an illegal act."

What is the Whistleblower exception to the "at-will" doctrine? TEX GOVT CODE ANN §554.001-.010. The Whistleblower Act only protects public employees. The Act defines public employee as "an employee or appointed officer other than an independent contractor who is paid to perform services for a state or local government entity." To state a cause of action under the Whistleblower Act, a public employee must prove he or she:

An employee may recover the following damages for an employer’s violation of the Whistleblowers Act: injunctive relief, actual damages, court costs, attorney fees, reinstatement, lost wages, reinstatement of benefits.

What is the exception to the "at-will" doctrine under the Civil Rights Act of 1964? Until 1964, private employers and unions freely practiced discrimination in employment with little fear of legal repercussion. Congress then passed statues prohibiting discrimination in employment on the basis of race, color, national origin, religion, sex, age, and disability. Title VII provides when an employer intentionally engages in an unlawful employment practice, a court may enjoin the employer from engaging in the practice and order other affirmative relief as appropriate, including, but not limited to, reinstatement or hiring of employees, with or without back pay. The exception applies to all employers whose business affects interstate commerce and who employed 15 or more individuals for at least20 weeks during the current or preceding year.

What is the exception to the "at-will" doctrine under the Texas Commission on Human Rights Act? Texas Labor Code Chapter 21, The Texas Commission on Human Rights Act (TCHRA), is the state law equivalent of Title VII. The TCHRA prohibits employment discrimination, including termination, based on race, color, national origin, religion, and sex (like Title VII), as well as discrimination based on age and disability (like the federal Age Discrimination in Employment Act and Americans with Disabilities Act). The TCHRA’s nondiscrimination provisions apply to employers with 15 or more employees. Other chapters of the Labor Code prohibit retaliation for filing a worker’s compensation claim.

What is the exception to the "at-will" doctrine under the Age Discrimination in Employment Act of 1967? The ADEA prohibits age-based discrimination in employment against persons forty years of age or older. 29 USC 623(a). The ADEA also proscribes retaliation against employees who oppose unlawful age discrimination or assert rights under the statute. The ADEA draws much of its language regarding remedies and enforcement from the Fair Labor Standards Act (FLSA).

What is the exception to the "at-will" doctrine under the Americans with Disabilities Act of 1990? The Americans with Disabilities Act of 1990, (ADA) as amended, prohibits employment discrimination against disabled individuals who are otherwise qualified for a given job position. The ADA defines a disability as a physical or mental impairment that substantially limits a major life activity. A disabled individual is otherwise qualified to work if he or she can perform the essential functions of the job, with or without reasonable accommodation provided by the employer. An ADA claimant must comply with the same administrative prerequisites, and potentially may recover the same remedies as a Title VII claimant. The ADA applies to employers with 15 or more employees.

What is the exception to the "at-will" doctrine under the Rehabilitation Act of 1973? The Rehabilitation Act of 1973 prohibits discrimination against disabled individuals by employers receiving federal financial assistance, e.g. Federal agencies, grant recipients, and federal contractors. The Rehabilitation Act applies primarily to public entities. It was the predecessor to the ADA, which affects both private and public entities and is broader in scope.

What is the exception to the "at-will" doctrine under the Family and Medical Leave Act of 1993? The FMLA allows an eligible employee of a covered employer up to 12 work weeks in any 12 months of unpaid, job-protected leave:

The employer must maintain the health benefits of an employee on an FMLA leave. 29 USC 2614(C). A private sector employer covered by the FMLA is defined as "any person engaged in commerce or in an industry or activity affecting commerce, who employs 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calander year." 29 USC 2611(4)(A)(i).

What is the exception to the "at-will" doctrine under the National Labor Relations Act and Texas Right to Work Law? The National Labor Relations Act (NLRA), 29 USC 151-169, as amended, and the Texas Right to Work Law, both prohibit employment discrimination, including termination, based on an employee’s membership or non-membership in a union, participation in union activities, or filing or testifying regarding an unfair labor practice charge. An employer may not take any employment action to retaliate against employees for union activities or to discourage employees from union membership. 29 USC 158.

What is the exception to the "at-will" doctrine under the Employee Retirement Income Security Act of 1974? The Employee Retirement Income and Security Act of 1974 (ERISA) regulates employee benefit plans. ERISA prohibits an employer from discharging or taking other adverse action against an employee that is designed to interfere with the employee’s attainment of vested retirement benefits or benefits to which the employee may become entitled under a benefit plan. 29 USC 1140.

What is the exception to the "at-will" doctrine under the Reconstruction Era Civil Rights Act? Congress passed the Reconstruction Era Civil Rights Act, 42 USC 1981-1988, in the late 1800's. These statutes are still commonly used today and are sometimes referred to as the Civil Rights Act of 1871. Section 1981 prohibits discrimination on the basis of race in the making and enforcement of contracts, including employment contracts. Other provisions generally apply only to state employers and persons acting under color of state law. Section 1983, for example, prohibits persons acting under color of state law from violating federally protected statutory or Constitutional rights and Section 1985 prohibits a conspiracy to commit such a violation. Section 1988 permits recovery of attorney’s fees by a prevailing party under these provisions. 42 USC 1988.

What is the exception to the "at-will" doctrine under the Occupational Safety and Health Act of 1970 and other safety related statutes? The Occupational Safety and Health Act of 1970 (OSHA) governs workplace safety standards. OSHA’s nondiscrimination clause prohibits retaliation against an employee for filing a complaint or testifying as to violations of established occupational health and safety standards. Other federal laws prohibit retaliation against an employee who reports violations or testifies under the Clean Air Act 42 USC 7622 and the Water Pollution Control Act 33 USC 1367.

What is the exception to the "at-will" doctrine under the Fair Labor Standards Act? The Fair Labor Standards Act (FLSA) establishes the national minimum wage and sets standards for overtime pay. The FLSA prohibits an employer from retaliating against an employee for filing a complaint with the Department of Labor or complaining to his or her employer about a wage and hour violation.

What is the exception to the "at-will" doctrine under the Equal Pay Act? The Equal Pay Act, 29 USC 206(d) prohibits discrimination in compensation on the basis of an employee’s sex. Equal work must be rewarded with equal pay unless the pay differential is based on a bona fide system based on seniority, merit, productivity, quality, or another factor not related to sex. Equal work means work of substantially equal skill, effort, and responsibility, performed under substantially similar working conditions.

What is the exception to the "at-will" doctrine for Bankruptcy and Indebtedness? Federal law prohibits an employer from discrimination against an employee based on the employees status as a debtor or bankrupt individual under the Bankruptcy Code. Federal law also prohibits discrimination against an employee because his or her wages have been garnished for an indebtedness. The Texas Family Code prohibits an employer from discriminating against an employee based on the employee’s being subject to a withholding order for child support.

What is the exception to the "at-will" doctrine for Jury Service and Political Activity? Under both federal and Texas law, employers are prohibited from taking adverse action against an employee based on the employee’s service on a jury. Texas law also prohibits employers from

What is the exception to the "at-will" doctrine for Military Service? Both federal and Texas law protect an employee’s right to re-employment after being called to active military service. Texas law provides that a private employer may not terminate a permanent employee because the employee was called to active duty during an emergency within the state. The federal law is broader in scope, prohibiting employers from discriminating against an employee in hiring, re-employment, retention, promotion, or other benefits on the basis of the employee’s military obligations.

What is the exception to the "at-will" doctrine under the Health and Safety Code? The term "hospital" is defined in the Texas Health & Safety Code §241.003. Defendant has a legal duty prohibiting retaliation against employees for the exercise of their legal responsibilities. This duty is given by the Texas Health & Safety Code §161.134. Texas Health & Safety Code §161.134(f) states:

The statute on its face clearly states that it applies to hospitals. The Texas Supreme Court stated: "Beyond the protections provided by Article 4525A, the legislature has recently enacted another specific whistle-blower statute for any hospital employee who reports illegal activity. See Texas Health & Safety Code §161.134. §161.134 of the Health & Safety Code provides a specific cause of action against a hospital employer who has retaliated against an employee for reporting a violation of the law to a supervisor."

What should I know about Non-Compete Clauses? The Business & Commerce Code states that the enforceability of a covenant not to compete is governed exclusively by the provisions of the Business & Commerce Code - §15.50. Covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee. If a covenant not to compete is breached, a court may generally award damages or injunctive relief or both. It appears that covenants not to compete are not enforceable when executed on a different date from the main agreement. The Business & Commerce Code now states that a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made. Bus and Com Code - 15.50. Frequently, one purpose of a covenant not to compete is to ensure that the promisor does not use trade secrets of the promisee or disclose them to a competitor for whom the promisor may be working. In addition, contracts often contain a clause that directly forbids the use or disclosure of trade secrets. A trade secret is "any formula, pattern, device or combination or information used in one’s business which gives one an opportunity to obtain an advantage over competitors." Because a covenant not to compete is in restraint of trade, it is enforceable only to the extent it is reasonable. The covenant must contain reasonable limitations as to time, geographical area, and scope of activity to be restrained that do not impose a greater restraint on the promisor than is necessary to protect the goodwill or other business interest of the promisee. Whether the covenant is reasonable is a question of law for the court.