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.

  • Whistleblowing

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.

  • Privacy

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.

Motions to compel arbitration almost always succeed. One that did not was addressed in Parrott v. International Bank of Commerce, 778 F.Supp.3d 888 (W.D. Tex. 2025). In Parrott, the plaintiffs filed a class action regarding the employees’ profit-sharing plan. The proposed class sought to attack the investment strategy of IBC. Mr. Parrott left his job at IBC before the employer added the arbitration provision to the profit-sharing Plan. The Defendant then argued that the arbitration provision related back to the profit-sharing plan as it existed when Mr. Parrott was employed. That is, the employer argued that even if the arbitration provision came after Mr. Parrott had departed, the provision would relate back to the time when Parrott was still employed.

But, the U.S. District Court did not agree. The harm to the plaintiff occurred before he left his job, not after. That means the harm occurred before the arbitration provision was added. The profit-sharing Plan specifically defines a Plan participant as one who is employed by IBC. As a former employee, Parrott had already received his distribution under the Plan. That means no consideration passed to Mr. Parrott for his supposedly agreeing to the new arbitration provision. No consideration means the arbitration provision did not constitute a binding agreement.

So, the Court denied the Defendant’s motion to compel arbitration. See the decision here.

Pres. Trump’s assault on the Department of Justice has real-world consequences. Some 5,500 employees, including lawyers and support staff, have left or been fired from DOJ since January. That is out of a total staff of about 10,000. That means there are widespread vacancies across the country in DOJ. But, recruiting at law schools is down. Law schools report that persons at the top ranked law schools are avoiding DOJ.

The Department of Justice has long recruited the top ranked student at the top ranked law schools. But, after all the the unjustified terminations, the best and the brightest have little incentive to work there. On Fox News, the US Attorney for Washington, D.C., Jeanine Pirro, said her office lacked 90 lawyers and encouraged any lawyer listening to apply. In Chicago, the US Attorney, Andrew Boutros emailed former DOJ lawyers inviting them back.

William Treanor, former dean at Georgetown University Law Center, said traditionally, Georgetown students had great interest in working at DOJ. It was an ultra-competitive place of employment. But, now he says virtually no one is applying. See ABA Bar Journal report here for more information.

The precipitous drop is not surprising. DOJ lawyers are routinely being asked to risk their law license in advancing false statements of law and facts. It is an exceedingly difficult place for any attorney to work.

The Civil Service Reform Act of 1978 amended the prior law, which was passed in 1883. The current law is found at 5 U.S.C. §1101, et seq. The first Civil Service Act of 1883 changed what had been a political spoils system to a much more professional, stable work force. Prior to 1883, the Federal workforce was routinely changed whenever a new President entered office.

The new Trump administration wants to change all that. In the Project 2025 book, the authors make fantastic claims that Federal workers are not held accountable. The authors claimed that the Federal workforce included “careerists” who “lean to the Left.” The book cited no evidence for this over-the-top claim. I previously talked about Project 2025 and its effects on the Federal workforce here. It is safe to say that the Project 2025 book included many unrealistic claims about the Federal workforce.

Terminations without Cause

The Trump administration has fired hundreds of Federal employees without cause. Yet, the entire scope the Civil Service Reform Act is to require a stated cause. The foundation of the statute is that workers will only be fired for a good reason connected to job performance. A common myth today is that it is impossible or very difficult to terminate Federal employees. That is not true. But, it is true that a manager must show evidence of poor performance if he wishes to terminate a Federal employee. That generally means there must be some written warnings before an Agency can fire an employee.

Federal law requires that all Federal employees be treated fairly and equitably. 5 U.S.C. §2301(b)(2). They should be protected from arbitrary, personal favoritism, or coercion for partisan political purposes. 5 U.S.C. §2301(b)(8). 5 U.S.C. §2302 prohibits certain personnel practices. These prohibited practices generally include discrimination, including discrimination based on politics and including discrimination not based on job performance.

So, these hundreds of terminations for no stated reason will surely result in innumerable lawsuits and appeals to the Merit Systems Protection Board. The MSPB has jurisdiction over Federal terminations. Any Agency that goes to the MSPB with no written warnings in the file will lose. Maurene Coney, a former Assistant U.S. Attorney in New York, has taken a unique approach. She has filed in both the MSPB and in U.S. District Court. In her lawsuit, she argues that because the MSPB currently lacks a quorum, there can be no final decision. Therefore, she can file her claims in district court.

Too, when Ms. Comey was fired, the only stated reason offered by the Agency was the President’s authority under Article II of the Constitution. That is, the administration was claiming the power to fire any Federal employee for any reason. It has been arguing in court this creative “unitary executive” theory since last January. According to Ms. Comey’s Complaint, the MSPB has already stated that it lacks authority to adjudicate whether the President truly has some sort of unfettered Article II power to fire Federal employees. See Comey v. U.S. Dept. of Justice, No. 25-CV-07625 (S.D. N. Y.) lawsuit here.

Until these legal theories are adjudicated, hundreds of Federal employees will have some very solid lawsuits and appeals to the MSPB.

It is fair to say that before trial and during jury selection, a trial lawyer should use all the tools at his/her disposal. Many of us will check LinkedIn to take a look at a potential juror’s profile. But, do not do that in the Northern District of California. Judge William H. Orrick has a standing order in his court for lawyers to not access LinkedIn. Judge Orrick says whenever someone checks a profile, LinkedIn sends a notice to that person, letting them know who has looked at their profile. Judge Orrick considers that notification to amount to a prohibited contact of a potential juror.

One law firm, Alston & Bird hired a jury consultant. The firm did not tell the consultant about the standing order. The consultant checked LinkedIn. That research eventually came to the notice of Judge Orrick. The Judge sanctioned the firm $10,000 for this breach of his standing order.

The trial attorney, however, noticed the violation and notified the court. She did the right thing. That may be why the sanction was not higher than it was. The Judge said he has no problem with lawyers accessing publicly available information. But, the potential juror should receive no notice. See ABA Bar Journal report here for more information.

We can argue about whether a notification amounts to contacting the juror. But, we can all agree that such a notification could lead to impermissible sorts of contact.

In Oral arguments on Nov, 5, 2025, the issue was the power of the Trump administration to set tariffs on many products, from many countries for an unsopeofied amunt of time. Congress has delegated some tariff powers to the Executive branch over the decades. But, Pres. Trump claims a statute, known as the International Emergency Economic Powers Act, provides the Executive branch with an unlimited sort of tariff authority. This is remarkable, since the IEEP Act does not actually mention the word “tariff.”

It is not a core issue to the case, but it is important. The United States Solicitor General John Sauer had to know this would come up: who ultimately pays the tariffs? Do American consumers ultimately pay the tariff or does some combination of foreign countries, businesses, etc. pay the tariff? It is not a core issue, but who pays the tariff is important to the case. If U.S. citizens pay the tariff, then the tariff is a tax. In Oral arguments on Nov. 5, a few of the Justices referred to the tariffs as a tax. That is important, because Congress can delegate such a power only if it does so very clearly.

Are the Tariffs a Tax?

Asking a lengthy question, Justice Roberts referred to the tariffs as a tax. Solicitor Sauer disagreed. It was just a passing comment, but Justice Roberts stopped mid-sentence. Justice Roberts then switched to the tax issue. He noted that the vehicle of these tariffs is an imposition of taxes on Americans – which is a core power of Congress (and therefore, not easily delegable to the Executive branch). Sauer replied that it has not been “empirically” shown that Americans are bearing these tariffs. Fine. Justice Roberts asks who does pay for the tariffs?

Solicitor Sauer then obfuscated, He said it would depend on the contract between the country and the importer. Sometimes the importer would pay the tariff, sometimes the foreign producer would pay. It could be a wholly owned American subsidiary of a foreign corporation. It would be allocated.

Justice Roberts then points out that it has been suggested that the tariffs are decreasing the budget deficit – which suggests it is a revenue source. Sauer then responds that yes, there are collateral effects of tariffs. Justice Roberts did not respond at that point. Most judges would not. They just want to hear how the litigant handles the question.

In that moment, Solicitor Sauer lost his credibility. Simply to appease his ultimate client, Pres. Trump, he refused to acknowledge on the record that tariffs act as a tax. They are tax in every way but name. The American consumer will pay a large portion of the tariffs. And, Solicitor Sauer, even though experienced, committed a grievous sin in appellate advocacy: do not BS the Judge. We learned in law school to never avoid a question and never, ever avoid an obvious fact.

It was an embarrassing moment for Solicitor Sauer. Before the highest court in the land, he implicitly acknowledged that his accepted a case with a known, insurmountable weakness. He might well have worn a sign on his chest: “My case is a loser.” He way yet win on other grounds. But, when a lawyer obfuscates in court, he implicitly admits he does not believe in his case. That its why lawyers reject cases. Even Solicitors of the U.S. have the right to reject a case.

See audio recording in Learning Resources v. Trump, No. 24-1287 here.

This really is the season of hunting free speech advocates. I just penned a post on Universities throttling a professor’s free speech rights, and here comes Gov. Abbott with more of the same. The Governor of the Great State of Texas shared a post about a University of Texas professor who had been fired from an administrative role due to his ideology. See my prior post here. The governor shared the post and announced the state would target professors who push “leftist ideologies.”

The governor, an experienced lawyer, did not define “push” or “leftist ideology.” But, it is safe to say that the First Amendment free speech clause applies to state and local governments – which includes the University of Texas. See The Hill report here for more information.

In a recent survey, only 12 out of 65 Federal Judges agreed that the U.S. Supreme Court makes appropriate use of the emergency docket. The emergency docket refers to the process by which a litigant can bypass the courts of appeals and go straight to the U.S. Supreme Court. There have been far more emergency appeals since Pres. Trump assumed power. The emergency docket is sometimes referred to as the “shadow docket.” Prior to Trump, the Supreme Court rarely granted any orders requested on an emergency basis. But, now it has become very common to grant those emergency appeals.

In the survey, Federal Judges described the Supreme Court’s emergency orders as “mystical,” “overly blunt,” and “incredibly demoralizing.” The latter comment likely refers to the very extensive, detailed order issued at the trial court level, only to be overruled by a one page order from the Supreme Court. What is the point of conducting lengthy research if the Supreme Court will overrule you with one or two paragraphs?

The Judges responded to the survey anonymously. The survey found:

  • Twelve out of 65 judges agreed with this statement: “The Supreme Court has made appropriate use of the emergency docket since President Trump returned to office.” Forty-seven disagreed, and six were neutral.
  • Asked what effect the emergency docket had on the public’s perception of the judiciary since Trump returned took office, 42 judges “said caused harm,” ten judges “said no effect,” and two “said an improvement.”

The latter comment refers to the implicit understanding of every Judge: that civility in the courtroom often depends on a thin veneer of respect for the court. If you lose that respect, then every trial, every hearing may result in a shouting match or worse.

Over 400 Judges

The New York Times conducted the survey. It sent the survey questionnaires to over 400 U.S. Judges. Among the Judges who responded, 28 were nominated by Republican presidents and 37 were nominated by a Democratic president.

The Times acknowledged that as a sample size, 65 is not a large number. But, the paper noted that for so many to be critical of the Supreme Court is unusual. I agree. Indeed, my opinion, it is surprising that as many replied as they did. Judges, regardless of the party, tend to be very conservative and cautious in discussing these sorts of issues – anonymously or not. See ABA Bar Journal report here for more information.

It’s amazing how many average persons believe they enjoy free speech protection in all sorts of private sector environments. No, we do not enjoy free speech protection in our private sector jobs. The First Amendment applies to state and local governments. That has been the law since forever. One professor at Texas State University, Tom Alter, expressed views akin to socialism on a private online connection. He called for the formation of a worker’s party to “overthrow” the U.S. government. Prof. Alter’s area of study is the working class and protest movements.

Prof. Alter issued his call as part of an online conference of Socialist Horizon. Unknown to Prof. Alter, his remarks were secretly recorded by Karlyn Borysenko. Ms. Borysenko describes herself as an “anti-communist cult leader” who exposes left-wing activists. She posted a video of Prof. Alter’s remarks on Twitter, now known as X. Within a couple days of posting the video, Alter was fired by Texas State. Prof. Alter then filed a lawsuit.

No Due Process

It was odd that the professor was tied with no notice or opportunity to challenge his firing. Tenured professors enjoy such protections. Yet, he was fired v=ia email from the school provost.

State district court in Hays County found in favor of the professor. I doubt it was a difficult decision. Judge Alicia Key issued a temporary restraining order reinstating the professor. Yes, the Fist Amendment applies to state and local governments. Texas State is a state governmental entity. This was surely an easy decision for Judge Key. See the San Antonio Express News report here for more information.

We may disagree with Prof. Alter’s views, but he has every right to express them. As some famous person said, free speech means nothing when the speech is popular. The First Amendment matters most when the speech is not popular. For more information about the free speech protections we all enjoy, visit the Foundation for Individual Rights and Expression website here.

Epilogue

Prof. Alter was reinstated. Texas State brought him back to work, held a hearing and then promptly fired him on Oct. 13. The letter terminating him specifically mentioned Prof. Alter’s remarks at the Socialist conference. The letter claims Prof. Alter spoke as a representative of Texas State University, not in his personal capacity. See University Star report here. Violation of internal rules might avoid the free speech implications. But, the employer will have difficult burden in what could become additional litigation.

When you are a lawyer, you hear that phrase “selective prosecution” now and then. Someone’s brother-in-law or cousin is being picked on by the local County District Attorney. But, sometimes, we see actual selective prosecution in real life. One day, Pres. Trump publicly directs AG Pam Bondi to prosecute James Coney. Days later, the U.S. Attorney for the Eastern District of Virginia does in fact indict James Comey. Mr. Comey, former head of the FBI, has been on Pres. Trump’s enemies list for years.

This is the same James Coney who was once managing attorney for that same Eastern District of Virginia office. Ty Cobb. a former Assistant U.S. Attorney himself and a long-time Washington D.C. criminal defense lawyer, said the “vindictiveness and selectivity of the indictment are palpable.”

James Comey was also a former U.S. Attorney for the Southern District of New York, a prestigious post. And, he served as second-in-command of the Deptartnment of Justice during the George W. Bush presidency. If convicted on the perjury charges, he would face up to five years in prison. But, given the public nature of the President’s “selection” of Coney to be prosecuted, he has better than even chances of avoiding any punishment. See ABA Bar Journal report here. As often occurs, Pres. Trump’s own actions undermine his efforts. The best evidence for selective prosecution will be Trump’s very public, errant message to Pam Bondi.