Many potential clients, friends and some folks I barely know share their knowledge with me about employment law. Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter.
- At will
“At will” employment means an employee can be fired for anything.” Texas is an at-will state. An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc. So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old. The anti-discrimination statutes provide several exceptions to the at-will doctrine.
- Probation period
“Probation periods means an employee can be fired for anything.” Not quite. A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc. See above paragraph.
- Copy of file
“Employees have a right to a copy of his/her personnel file.” That depends on whether the employee is public sector or private. There is no authority in Texas law which says employees of private businesses can obtain a copy of their personnel file. As a public sector employee, an employe’s rights are governed by the Freedom of Information Act for federal employees and the Open Records Act for state employees. I can find no authority providing that a private sector employee has a right to a copy of his/her personnel file.
- Rest breaks
“Employees get periodic breaks during the work day.” I was told as a young warehouseman that we had a right to a 10:00 o’clock break and another at 3:00 pm. The times could vary slightly, but that was the idea. Since then, I have looked for the authority for those breaks. There is no such authority. Most likely, that is or was part of the influence of collective bargaining agreements (union agreements). CBA’s do often provide for such breaks. But, for non-union employees, there is no authority for a mid-morning break and a mid-afternoon break. There is no state law or regulation on rest breaks or meal breaks. Federal regulations do not require a meal break. But, Federal regulations used to encourage work places to provide rest breaks, but notes a requirement. That provision was formerly found in 29 CFR Sec. 758.18 as recently as 2016. But, today, the term “rest break” is nowhere to be found in the federal regulations.
- Non-compete agreements
Some folks outside and inside Texas believes non-compete agreements are not enforceable in Texas. Yes, they are and have always been enforceable. They more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). But, then the Texas Supreme Court issued the decision in Exxon Mobil Corp. v. Drennen, 452 S.W.3rd 319 (Tex. 2014) which stated that the Marsh decision did not involve a “covenant not to compete.”
- Free speech
The right to free speech exists only for government workers. There is no general right to free speech in a private workplace. But, there is protection for employees who discuss “terms and conditions” of employment. Those sorts of discussions are protected by the National Labor Relations Act. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace. I previously discussed the NLRA protections here.
There is no general whistle blower protection in Texas. I think most people think of whistleblowing as reporting wrongdoing to some law enforcement type entity. Employees in the private sector do not have protection against whistleblowing. But, there is a protection against requiring employees from violating criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. So, merely reporting administrative violations which do not have a criminal punishment, there are no such protections.
- Not Written up before termination
People still ask me or tell me that the employer did not write them up before firing them. Well, employers do not have to do that. Yes, most large employers have nice looking employee manuals which state that employees must be written up before termination. But, these manuals are not binding. They have not even been arguanbly binding since about the early 1990’s. This is one employment myth that may never go away.
Some folks still think they have some degree of privacy at work. Email is a frequent issue. Generally, email produced with use of the employer’s equipment and server belongs to the employer. The employer may review your email anytime. I wrote about workplace email here and here. The one exception appears to be when the employee accesses his/her private email server which is password protected.
There is no prohibition on private sector employers searching desks to my knowledge. But, the U.S. Constitution Bill of Rights applies to state governments. So, in the public sector, a worker has some protection from unreasonable searches if s/he has a reasonable expectation of privacy” that society is prepared to recognize as reasonable. See O’Connor v. Ortega, 480 U.S. 709 (1987), on remand, Ortega v. O’Connor, 817 F.2d 1408 (9th Cir. 1987). But, the “expectation of privacy” can be limited by office practices and by legitimate regulation. And, HIPAA does protect medical information in most work situations.
So, as I tell folks on occasion, if you want fairness at work, then form a union. Or, persuade your state legislature to make a few changes in the law, so all workers will benefit.