There is no statute (i.e., a law passed by the state legislature) in Texas protecting workers from being forced to commit illegal acts.  So, prior to 1985, if your employer told you to rob the local bank and you refused, you could have been fired.  But, now there is judge-made law in the form of Sabine Pilot v. Hauck, 687 S.W.2d 733 (1985) that found protection for a worker being forced by an employer to commit an illegal act.  See decision.  In the 20 years plus since the decision was issued, the courts have established that a Sabine Pilot action applies to laws involving criminal actions.  If an employee is asked to commit a criminally illegal act, then that employee is protected from adverse action by the employer.

According to the Texas Supreme Court decision in Safeshred v. Martinez, No. 10-0426 (Tex. 4/20/12), the Sabine Pilot action is based on tort or personal injury actions.  So, punitive damages are available.  See decision. The Supreme Court, never friendly to plaintiffs, found that to award punitive damages, a plaintiff must show more than the termination was based the refusal to commit an illegal act. The plaintiff must show specific intent to cause harm to the plaintiff apart from the termination itself.  The court provides an example where the employer circulates false rumors about the employee so as to prevent him from finding future employment or makes looking for future employment more difficult than it ought to be.  In those situations, says the Supreme Court, the employee would be entitled to seek punitive damages.

So, that means firing an employee for refusing to commit an illegal act is not in itself enough to justify punishment.  The Supreme Court is saying there must be something more.  For example, in the Martinez case, Louis Martinez drove a truck between San Antonio, Austin, Dallas and Houston everyday for Safeshred.  Prior to each haul, he was required to conduct pre-inspections of his truck.  He consistently discovered safety violations of his vehicle.  But, he was always told to drive the truck anyway. On one trip, he was cited by DPS for improperly secured cargo – because the straps were worn or cut.  DPS told him not to drive the truck again. Mr. Martinez explained what happened and showed the citation to Safeshred. But, again he was told to drive. Finally, prior to a fourth trip with the defective truck, the driver objected again to driving with an unsafe load. Mr. Martinez was told to drive the truck or go home. He went home.

The Supreme Court found this evidence of disregard for public safety by Safeshred was not enough for punitive damages. Title VII discrimination cases would require some evidence of malice or “reckless indifference” to the law.  I would think Safeshred’s repeated indifference to public safety would be enough to justify punitive damages. A jury clearly thought so.

Louis Martinez filed suit. The jury found for the truck driver and awarded him $7,569 in lost wags; $10,000 in mental anguish; and $250,000 in punitive damages. The trial judge reduced the $250,000 to $200,000 due to caps on such damages. The court of appeals reversed the mental anguish finding.

Due to this Texas Supreme Court decision, the $200,000 is removed from the verdict. It is as if the $200,000 was never awarded. A company that committed some dangerous acts, putting motorists in some peril on the highway at least three times will in the end, pay no more that $7,569.

 

Coach Art Briles settled his wrongful termination lawsuit against Baylor University. I previously wrote about that lawsuit here. I wrote then that it was pretty “nervy” of Coach Briles to sue his employer for wrongful termination after his inaction caused so much heartburn for his employer. He apparently settled the lawsuit soon after he filed it. See Houston Chronicle report.

So, now Coach Art Briles has sued Baylor University for “wrongful termination.” See San Antonio Express News report. The saga of the Baylor University football team reached its apex a few weeks ago when the Pepper Hamilton law firm report was released. The report implicated Baylor University officials, including Coach Briles, in the half dozen or so rapes and sexual assaults committed by football players. As sports scandals go, its a “big un.” It ranks up there with the SMU scandals of the 1980’s.

So, it might seem nervy for Coach Briles to file suit. “Wrongful termination” in itself is not a cause of action recognized in Texas law. But, we can assume that a coach like Mr. Briles, reportedly paid $6 million per year, had a clause in his contract that he could be fired for only good reason or “just cause.” If so, then sure, he could sue for breach of contract. The breach would be in regard to the just cause provision.

So, what would be “wrongful” about his termination? The coach has only spoken once about the firing. He said that he had not seen the evidence used to fire him. He has not seen the Pepper Hamilton law firm report. But, that does not mean the evidence does not exist. Coach Briles and Baylor have already been sued by two alleged rape victims. Those lawsuits alone would be enough to justify most terminations of employees with a “just cause” provision. I find it had to believe Coach Briles truly believes the evidence justifying his termination does not exist. More likely, he is simply trying to get the some sort of settlement with Baylor. It is not an attractive aspect of litigation. But, he is likely betting the school would prefer to settle with him than see dirty laundry posted in court. That is what we call a frivolous lawsuit. It is filed not because it has merit, but because the simple act of filing gives the party some bargaining leverage.

Coach Mike L:each filed suit a few years ago when he was fired. He also argued wrongful termination, among other theories. I wrote about that lawsuit here. But ultimately, his lawsuit lost because state agencies are immune from lawsuits. Baylor does not enjoy similar immunity from suit.

The newspaper report describes Coach Briles’ lawsuit as typical of his “bare knuckled” approach to building a successful football program. It may be bare knuckled. But, it does not acknowledge responsibility for serious lapses on his watch. It also reflects no sense of honor regarding what was essentially his football program.

You served in Iraq twice. Both times, you served in a combat role kicking in doors. You lost a few members of your Army family, but you accepted that. It is part of the deal you made with Uncle Sam. You were commissioned through ROTC at one of the Ivy league schools. You get out of the Army when your time expires and feel like you have earned a rest. After several months of looking for work, you get a job at a national bank on the East Coast.  Everything seems perfect. The civilian boss loves your work. Your co-workers appreciate having that Ivy league finance degree. You get two raises in the first six months. 

Then, the day after Veteran’s Day, one of your former soldiers commits suicide. That brings back a flood of memories. You were his platoon leader. You spent almost 3 years taking care of this kid and keeping him straight. You knew his very young wife. You start having those bad dreams again. Its hard to sleep. 

Your boss stops you in the hallway and asks if everything is ok. She has noticed you do not speak at meetings. You were late with that report. You tell her about that kid, who shot himself. She says "this is not the Army. Take a day off." Then, she walks away.  

Your sleeplessness worsens. At work, others are noticing your red eyes and nodding off at meetings. You take a day off. You get some work done at home. The boss fusses at you for taking a day off when your report was not turned in yet.  

Weeks pass. The boss says accusingly that your speech is slurred and your eyes are drooping. The boss walks away, looking at you like you are a child molester. 

Walking down the hallway, you find your desk. A minute later, Human Resources calls you in for a meeting. The boss is there. The HR person and the boss ask if you are using drugs. "No," you look incredulous. They have no idea that in the Army, you were tested for drug use every other year. You think how ironic, they could probably not pass a drug test every other year for eight years.  

The boss and HR representative accuse you, the former Ranger captain of PTSD. "No-o-o," you stammer out.  You think back to all those times you encouraged other soldiers to see a counselor about possible PTSD. You recall asking the kid if he had seen a counselor – just a couple of years year before he committed suicide. "No," you say, "I do not have PTSD." But, you add, "i have been seeing a psychiatrist for Depression. The medication causes some drowsiness." You tell them you will talk to your psychiatrist about adjusting the dosage.  

They press you to go take a drug test, now. The clinic will be open for another hour, they insist. They ask if you want to talk to the EAP counselor, Employee Assistance Program. You recall the orientation explaining that EAP will assist employees with drug alcohol problems. You know that the EAP program is a good way to end a promising career. 

A more senior HR person comes in. She rattles off some statistics about all the employees who were helped by the EAP program. You continue to deny any drug use or alcohol abuse. The senior HR rep again asks about PTSD.  

You break down and weep. The questions stop. They look at you like a monkey in a zoo. The senior HR tells you that you have 24 hours to contact EAP. You are suspended for one week with pay. They send you home.  

You cannot imagine going back there after your boss saw you crying. A co-worker saw you leaving the room and you could see him questioning.  

The junior HR rep calls you the next day at home. He asks if you contacted EAP, yet. You tell him no.  You explain again you have a psychiatrist. Why do you need a counselor? He says you are fired for not contacting EAP within 24 hours and for refusing a drug test. You never refused any drug test. You think back to those days in Baghdad when you were never sure who and where the enemy was. You think things have not changed so much. 

Often when a new boss comes in or when a company simply changes hands, you find your job at risk. We would all like to know as soon as possible if our job is at risk. So, what are some good warning signs that you may be fired soon? The ABA Bar Journal borrowed some signs from the Wall Street Journal. Here are six warning signs you are about to be fired:

 

  1. Your supervisor avoids discussing long-term projects with you. The WSJ offered an example regarding a marketing executive who could not obtain budget approval for an upcoming trade show.  
  2. You hear rumors that your supervisor is looking for your successor. Yes, that should make anyone nervous about his/her stability. 
  3. Colleagues avoid you. They heard the rumors and apparently believe them to be true. Now, they avoid the inevitable drama. They may exclude you from meetings. 
  4. An executive coach is hired to help you. The coach may simply represent a perfunctory exercise prior to the end. 
  5. You are asked to justify your job. In one case, an executive who switched roles learned that his boss had no clue what he did in the new role. The executive was later asked toretire because the new role was not a good fit. 
  6. Your boss suddenly interferes with your handling of employees. One executive’s job was eliminated after his boss started leading his meetings. 

See ABA Bar Journal report

It is always better to not lose your job. But, to be warned, is to be prepared. Do not ignore these clues. 

Sometimes an employee is just fired just because.  According to the Toledo Blade, Clear Channel Communications, a major corporation headquartered in San Antonio, has been quietly laying off numerous employees.  The layoffs started when Bain Capital, Mitt Romney’s former business, bought a large share of Clear Channel.   A controversial radio talk show host was recently fired in Toledo.  That termination followed other terminations at radio stations in Nashville and elsewhere.  

According to one industry observer, clear Channel is laying folks off to satisfy impending debt obligations.  One observer says they have laid off a handful of employees each week for the past 52 weeks.  See Toledo Blade report.  Yes, sometimes folks are simply laid off because the business has new owners. The interesting part is who is picked for the layoff and why. 

Mike Maslanka, who pens a blog oriented toward employers wrote a helpful post on terminating employees.  Mike is well read on management and leadership techniques.  He suggests the following:

1.  Conduct the termination meeting at the employee’s work space or office.  He explains that the manager can get up to leave after completing the difficult task.  The manager can "escape" when the meeting concludes.  And, going to the employee’s space also suggests some level of respect for the employee.

2. It may be unethical to keep an employee in a position in which they are not a good fit.  You, the manager, owe it to the employer to not retain folks who do not fit.  It is as much a strain on the employee as it is on the employer. 

3. Be patient.  The manager has had time to adjust to the new reality, the employee has not.  Give him/her time to digest what you have said.  They say a termination should never be a surprise.  But, truly, it almost always is a surprise on some level.  No manager should schedule an appointment immediately following a termination meeting. 

4. Allow the employee to retain some dignity.  As Mike explains, that means different things to different people.  To Mike, it means do not show false empathy.  Do not say "I know how you feel" unless you have been fired yourself before.  The best thing you can do is simply allow the employee some time to compose him/herself.  Silence is golden and respectful. 

5. Mike also suggests you look at yourself.  Ask yourself how and why you hired the wrong person. In the Army, we conducted "after action reviews" after every major training exercise.   The goal was to analyze the good and the bad.  Every termination, just as every major employment issue, should result in some improvement to the organization. 

If every employer followed these tips, lawsuits would decrease dramatically.  See Mike’s post for more information.  

Frequently, employees call me and tell me with breathless excitement that the employer is violating some law, the caller knows it and then they pause.  They seem to expect me to say, "well, then, ignore them" or "well, ok, then tell them to jump in the lake."  ….  No, we cannot say those things. 

I sympathize with the caller’s plight.  But, unless you have a court order in hand, or unless they are asking you to perform an illegal act, you have to do what the employer says.  Period.  

We see this in a case described by a pro-employer blog, Texas Employment Law Update by Russ Cawyer: Uranga v. Nationwide.  This is a decision rendered by the state court of appeals in El Paso. The employee worked for Nationwide from 2003 to 2005.  The employee claimed he was not paid overtime; he believed the employer was acting in bad faith to build a record to fire him; and that he was about to be paid off.  So, he quit.  Meanwhile, the employer had been trying to meet with the agent to discuss perceived performance issues.  On three occasions, the employee failed to appear for these meetings. The employer then came to understand from others that the employee had stopped coming to the office for two months and had removed the computer equipment.  Mr. Uranga apparently quit.  He applied for unemployment benefits.  But, Nationwide argued that the employee had abandoned his job.  

The El Paso court found in favor of the employer.  The supervisor sent a letter to Mr. Uranga saying he had abandoned his job.  There is no mention in the report of Mr. Uranga formally quitting.  There is no indication that he objected to the letter from his supervisor.  Yes, even when you believe you are being treated unfairly or unlawfully, you, as an employee, need to tell your employer that you are quitting.  

If an employee quits for good reason, s/he might receive unemployment benefits.  But, here, Mr. Uranga could not even show that he notified the employer that he had quit.  Apparently, there was no letter, no memo, no note.  And, he missed a few meetings with his supervisor.   These are all good reasons for termination.  If he felt he was owed overtime pay, then he should have filed a complaint with Department of Labor or Texas Workforce Commission.  You cannot just ignore a boss you believe is violating the law or mistreating you. 

 It is always tough to fire an employee, no matter how much s/he deserves it.  But, speaking for the employee, it is can be much more difficult if the employer employs little or no finesse.  When to terminate employment is a big part of the equation.  Michael Maslanka gives some excellent advice, suggesting earlier in the week is better.  Over the years, I have heard from many employees, "I would have let it go, but then they did X to me."  What they mean is that often, they suffered some pretty clear discrimination or violation of some contractual right.  But, the employee did not become angry enough to see me or someone like me until the employer did something that was pretty insensitive.   A common tactic is to fire the employee on the spot and escort him/her out of the office.  That is huge.  That is when employees go see a lawyer.  

I appreciate the need to secure computers, files, etc., but employers should consider very carefully when they find it necessary to embarrass a worker in front of her co-workers.  I have some friends who run a chain of mom and pop sandwich shops.  They are very smart.  They do not have college degrees.  But, they understand this well.  They always fire someone with two weeks notice, unless a clear case of theft or its equivalent is involved.  Be firm, be tough, but do not embarrass……