I used to get referrals from the San Antonio Bar Association. These referrals included many clients who had never spoken to a lawyer anywhere. Many of them would call complaining basically about unfair treatment. I still get calls like that, sometimes. They might say, “my employer fired me because they say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

We have what is known as “at-will” employment. An employer can fire you for any reason (other than various types of discrimination). Just as the employee can quit for any reason. So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you. I wish that was not true. I wish our state laws were different, that they required some sort of “just cause” for termination. But, most states do not require just cause for a termination. Only some 10 states require a good reason for a termination. In the rest of the states, such as Texas, an employer can fire you for the wrong reason.

What control does an employer have over a worker after work hours and away from the job? In Texas, as in most states, the employer can have a great deal of control, if it wishes. We are an “at will” state in Texas, as are most states. In an at-will state, an employer can fire a worker for any reason, so long as the reason does not violate any discrimination statute. Unless some law exists to limit what the employer can do, the employer can do as it pleases. There is no law that prevents an employer from requiring a worker to do or not do something on his/her own time. So, when Capt. Shawn Ury says the City of San Antonio was wrong to tell him he cannot work a second job after hours, that does not make a lot of sense.

As a union member, he may have different rights. The Collective Bargaining Agreement may have some limitation on what the City can do or not do regarding union member after hours. But, absent some provision in the CBA, the City can indeed tell him he cannot work a second job. The only enforcement mechanism is to discipline him and perhaps, terminate him. But, sure, they an ask him to do anything that does not conflict with discrimination statutes or various penal statutes. According to the San Antonio Express-News, Capt. Ury has had a hearing in front of an arbitrator regarding this issue. The ultimate decision is up to the arbitrator. But, in Texas, yes indeed, an employer can tell an employee not to work a second job – or not to wear a green shirt or whatever-  on his/her off-time. The employee, after all, can always choose to quit. See San Antonio Express News report.

There are a lot of myths out there about employment law. From time to time, I talk about a few of those myths.

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. I have found no authority in Texas law saying that 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. 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 encourage work places to provide rest breaks, but such breaks are not required. See 29 CFR Sec. 758.18.

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 became much more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). I previously wrote about that decision here.

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. I discussed those protections here. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace.

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 from asking employees to violate criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. These Sabine Pilot actions only apply to violations of law that involve criminal punishment.

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 wrritten 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. I wrote about employee manuals here.

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.

The crew of a  United Airlines Flight arrived at their plane one day and found the words “BYE BYE” scrawled on the tail section. It was July, 2014, just a few months after the Malaysia airline plane disappeared over the Indian ocean. The crew was shaken. They asked for a security sweep. United, however, simply examined the auxiliary power unit or APU and found nothing wrong. They said the graffiti was a joke. The crew asked the flight to be cancelled. The airline refused. The entire crew of thirteen refused to board the plane. The flight was canceled. The crew was fired a few months later for insubordination. Now, the crew has sued the airline seeking back pay and compensatory damages. See CBS news report. They also ask to be reinstated to their old jobs.

The attorney for the flight attendants says it was a “moral mandate” to not board that plane.

Maybe. But, in at-will state, as most states are, the employer can terminate a worker for refusing to perform his/her duties. The employer has the privilege of deciding what constitutes appropriate risk or not. Oil field workers encounter physical risk all the time. Their pay may be higher than most flight attendants, but the decisions are the same. Should the worker accept the risk or not? If the worker will not accept the risk, then s/he can quit.

Unless the employee has a union. If the employees form a union, then they can negotiate for some input into what constitutes risk. Otherwise, at least here in Texas, the employer gets to decide what is risky or not so risky.

I tell potential clients all the time that they can be fired for anything – so long as the cause is not related to potential discrimination. One construction worker learned that lesson the hard way. An employee of a subcontractor who was working on the new stadium at Texas A& M was fired because he displayed the wrong flag. He flew the Alabama Crimson Tide flag atop the stadium. That was probably not a wise thing to do in the middle of Aggie country…..

That is what the at-will doctrine is all about. A worker can be fired for any reason. See San Antonio Express News report

I frequently tell my clients or potential clients that if they want fairness at work, then they need to form a union.  The case of Lt. Joseph Salvaggio of the San Antonio Police Department illustrates why.  Lt. Salvaggio took the exam for promotion to captain in 2010.  One of the instructions was that if a candidate needed a restroom break, s/he should cover the answer sheet and not take any test materials with him to the restroom.  No definition of "test materials" was offered.  Between the morning and afternoon test sessions, the candidates were allowed to study for the test.  In past exams, the test proctors had allowed the candidates to use scratch paper during the exam and did not collect the scratch paper at the end of the same.

Lt. Salvaggio had a post-it note the day of the test with notes on it.  He had recorded topics he wanted to review during the mid-day break.  As he left to go to the restroom, he took the post-it note with him.  The proctor noticed the post-it note.  He told the on-site San Antonio PD officer.  The officer told a higher-up who eventually told the Chief of Police, William McManus.  Several months later, a scandal developed regarding a detective exam.  Some detective candidates had removed a test booklet from the testing site.  During the subsequent Internal Affairs investigation, the post-it note with Lt. Salvaggio was mentioned and a separate investigation was launched.  A couple of months later, the Lieutenant was notified that he was accused of violating a Civil Service Commission rule prohibiting a police officer from bringing discredit upon himself or the department.  He was accused of removing test materials from the test site. 

The Chief is advised by two advisory boards, one civilian and one composed of police officers appointed by the Chief of Police.  The civilian board advised that no action should be taken against Lt. Salvaggio.  The police advisory board recommended a thirty day suspension.  The Chief, however, chose to place the lieutenant on indefinite suspension, tantamount to termination.  

Under the terms of the Collective Bargaining Agreement, the captain candidate filed a grievance.  The grievance was heard by an arbitrator in December, 2010 and the lieutenant won.   The arbitrator found that Lt. Salvaggio did not violate any established rule.  The city filed suit as its appeal.  Arbitral findings are difficult to overturn.  The whole point of union arbitration is to reach a quick, decisive result.  The city challenged the finding based on a lack of jurisdiction, arguing that the arbitrator was enforcing a rule created not by the Civil Service Commission, but by the arbitrator himself.  That is, the City seems to be arguing that since there was no rule regarding what was test materials, the arbitrator in effect created one in some way.  I find their argument confusing. 

The City lost in district court.  It lost again before the Fourth Court of Appeals.  The Fourth Court found that the arbitrator did not create a rule.  Only the Civil Service Commission could define "test materials."  And, the Commission did not promulgate any such definition.  So, the Chief cannot then employ his particular definition.  Indeed, said the Fourth Court, the Chief had effectively created a new rule by defining post-it notes as "test materials."  

Now, the City has filed an appeal with the Texas Supreme Court making essentially the same argument.  See notice and petition for review.  The Texas Supreme Court is rather friendly to employers, so perhaps this appeal is not completely futile.  But, the City’s argument is based on logic that seems to make little sense.  It is unfortunate that this employer has chosen to spend tens of thousands of dollars on what some would describe as a "frivolous" appeal. 

And, it all started with a chief executive who did not accept the recommendation of his own advisory boards.  Yes, we should terminate employees who break the rules, even 23 year employees like Lt. Salvaggio.  But, we, as employers, should be very certain that our rules are clear before we end a 23 year career.  

If the lieutenant was not a union member, he would have no recourse.  Under the at-will doctrine, an employer can indeed terminate an employee for a silly reason or for a mis-perception.  Lt. Salvaggio must really appreciate his union membership, now. 

An employer can modify the at-will relationship.  An employer can agree to terminate an employee only for "just cause."  Many employers agree to do so so for key employees.  But, how does an employer modify the at-will status of an employee?  in Crystal City v. Palacios, 2012 WL 1431354 (Tex.App. San Antonio 201012) (not for pubication), the employer made "just cause" one of its policies.  The just cause policy appeared to apply to all employees.  The policy provided that an employee would only be fired for just cause.  The San Antonio Court of Appeals, found that language was not binding on the employer.  The policy was too general, said the court.  The court relied on another decision, Montgomery County Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998).  But, the Brown decision was different.  In Brown, the Texas Supreme Court found that an oral promise to terminate for just cause could not modify the at-will doctrine.  In the Palacios decision, the policy is in writing. 

Indeed, the Palacios decision conflicts directly with County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007), where the Texas Supreme Court found that a written policy of Just cause would modify the at-will status of an employee. 

The San Antonio Court of Appeals designated its decision as not for publication.  That designation is supposed to mean the court believes the decision only applies to this one specific fact situation and should not apply to other situations.  The decision will not appear in the official reporter of court decisions.  But, in these days of ready access to Westlaw, not appearing in Southwestern Reporter does not mean much.  See the Palacios decision here

I often tell clients or potential clients that in an at-will state, like Texas, your employer can fire you for anything.  They can, for example, fire because you wear a blue shirt to work.  Well, the law firm of Elizabeth R. Wellborn, P.A. in Ft. Lauderdale did just that . . . almost.  They fired 14 employees for wearing orange shirts to work.  See Ft. Lauderdale Sun-Sentinel report.  

According to four workers, they were wearing orange on Fridays simply because they would go to happy hour after work and wanted to easily find each other.  But, an executive called 14 workers into a conference room last Friday and said he understood they were wearing orange as part of some protest.  The executive asked if anyone had an innocent reason for wearing orange.  A worker then mentioned the happy hour plan.  The executive conferred outside with other managers.  He came back in the room and said they were all fired. 

Later, one woman complained she was a single mom with four kids at home and she just got fired for wearing orange to work. Other workers were quoted as saying they wore the orange for the happy hour.  They were not aware of any protest.  There was no company policy regarding orange. The workers were not issued any warnings before the firing about wearing orange.  

It is ironic, because if the employees were wearing orange as some sort of protest, then their conduct might be covered by the National Labor Relations Act which allows workers to discuss conditions at work.  But, regardless of their motivation, I think the law firm of Elizabeth R. Wellborn, P.A. is not a happy place to work. 

 

In a decision that makes little sense, the Texas Supreme Court has found that an employee can be forced to surrender his/her right to a jury trial.  The employee, Steven Valdez, was told he had to sign the jury waiver provision.  He was told that he would be fired if he did not sign it.  He had worked at Frank Kent Cadillac for 28 years.  He had resisted signing the jury waiver earlier.  But, management told him he had to sign.  See decision in In Re Frank Kent Motor Co. 

About a year later, Mr. Valdez was laid off.  He filed suit alleging age discrimination and requested a trial by jury.  The employer moved to strike the jury demand.  The employee responded by arguing the waiver was not "knowing, voluntary and intelligent," a legal standard.  

In a strained decision, the court finds that the employee could have quit to avoid signing the jury waiver.  The court applied contract principles to state that it is not coercion to exercise some legal right held by one of the parties.  The employer has the right to fire the employee.  Therefore, this pressure does not rise to the level of legal coercion.  The court is essentially saying that since the employer has the legal right to fire someone, they can use that as a negotiating tool.  As a negotiating technique, it cannot rise to the level of "legal coercion."

This logic fails on many levels.  How many employees would not feel coerced to sign something when their boss says they have to sign it?  This decision engages in hair splitting that avoids the reality most of us face.  We cannot quit our jobs willy nilly.  We are tremendously disinclined to go out looking for a new job – especially someone in his 50’s.  I assume an employee with 28 years experience would be in his 50’s. 

More importantly, it is simply poor legal reasoning.  Contract principles presume both parties enjoy a level playing field.  Most parties to any agreement are on equal footing when they negotiate a deal.  Not so employers and employees.  The employer has the right to fire.  Yes, the employee can quit anytime.  But, very few employee can afford to quit on short notice.  But, most employers can afford to issue directives on short notice.  Many employers can afford to threaten an employee with termination on short notice.  This decision is wrong on many levels.  But, it is now the law of the land in Texas. 

In most private sector jobs, if you were suspended 17 times by your employer, you would be out of a job.  But, Officer Lee Rakun is still appealing his latest suspension from the San Antonio Police Department.  See San Antonio Express-News story.  In fact, Officer Rakun received his first suspension within a year of starting with the police force.  The SAPD has an active union and a strong Collective Bargaining Agreement (CBA).  So, that helps explain Officer Rakun’s tenacity.

The advantage of CBA’s is that they typically require some form of "good cause" for termination.  An employee can only be fired for good cause.  Without a CBA, the rest of us are subject to Texas’ "at will" employment.  "At will" employment means the employer can terminate anyone for any reason (other than discrimination and a few other exceptions).  The employee handbook so many of us have at our jobs say an employee will be fired for certain infractions.  But, employee handbooks are not binding and they are often violated by the employer. 

So, the next time you are fired for "excessive absences" or because after 14 years of no errors, you are accused of failing to account for one $15 expense, think about unions and Officer Rakun’s appeal of his 17th suspension.