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The At Will Employment Doctrine

Most people will encounter some type of employment dispute at some point in their lives. Most people believe they have a "right" to work and that they are entitled to keep the job they have.

This misconception stems largely from our belief that the constitutional right to "life, liberty and happiness" includes the right to work for a living. Unfortunately, even though we live in the "land of opportunity," there is no constitutional right to a job. You have the constitutional right to sell yourself and your credentials in order to get a job, but there are no constitutional guarantees that you will get a job.

What is the employment at will doctrine?

In many states, including Texas, an employer can terminate an employee for any reason or no reason (unless it violates a constitutional right). This is known as the "employment at will doctrine." This means that you could work at a company for 40 years and show up one day and your boss could say, "I don't like your tie. You're fired." This is rude, offensive, humiliating and not fair. But it is not illegal!

One of the first questions I ask clients is "Do you have a written contract in which your employer agreed to employ you for a specific period of time?" If not, then you are an "employee at will."

The fact that you can be terminated for no reason does not mean that your employer will terminate you for no reason. In fact, most employers try to find some legitimate reason for termination so that they don't have to pay unemployment fees.

In Texas, and in many states, if you are terminated for cause, you are not entitled to unemployment wages. Therefore, most employers will try to create a "paper trial" showing that you were terminated for cause. You employer may suddenly start giving you poor performance reviews for no reason at all, or place unreasonable demands on you that you are not capable of meeting. Again, although this is rude, offensive and not fair, it is not illegal.

Are there exceptions to the employment at will doctrine?

There are, however, exceptions to the employment at will doctrine. You cannot be terminated on the basis of your age, sex, disability or race. You also cannot be terminated in retaliation for exercising certain statutory rights. For example, in Texas, if you file a worker's compensation claim, your employer cannot retaliate against you by firing you. If you file a sexual harassment claim or any kind of discrimination claim, your employer cannot retaliate against you by firing you. If you work for Texas state agency, and you report that agency for a violation of the law, then the Texas Whistleblower Act protects you from retaliation from the state. However, the Whistleblower Act only applies if you were working for a state agency.

However, the best way to avoid the employment at will doctrine is to get a written contract from your employer in which it agrees to employ you for a defined period of time (i.e. one year or more, depending on what you negotiate). This is especially important if you are taking a job, which requires you to move from another city or state.

There have been many horror stories in which an employee sold his/her house, uprooted his/her family, and left a lucrative job in another state to come to work for a company, which subsequently fires him/her a few weeks after he/she begins working. If you are considering taking a job in another state, always ask your potential employer if they are willing to sign an agreement to hire you for a specific period of time in order to make the move worth your while. If you currently find yourself in the position of having moved from another city or state in reliance on a verbal representation that you would have this job for a while, and you have been terminated shortly after you started work, there are other legal doctrines that may protect you. Don't give up.

If you are faced with an employment dispute, contact us.