Practicing for 20+ years Austin Employment Lawyer and Houston Labor Attorney Jack Nichols fights against discrimination, retaliation, harassment and hostile work environments.
What is “At-Will” Employment or an “At-Will” Employee?**
Generally, in absence of a contract, private employment in the State of Texas is considered to be “at will.” This means that a private employer can fire an employee for almost any reason, or no reason at all. Similarly, an employee can quit for any reason, or no reason at all. However, there are exceptions to the “at-will” rule which have been created by state and federal statutes and common law which make it illegal to fire an employee under certain circumstances. These include, but are not limited to situations when the motive for terminating an employee is based in discrimination, retaliation and/or other illegal factors, many of which are discussed elsewhere on this website. Please visit the Homepage for a non-exclusive list of examples.
What is Wrongful Termination?**
The concept of “wrongful termination” is often misunderstood. If an employee is terminated for reasons which were factually wrong or inaccurate, that may be consistent with the employment “at-will” rule, and, alone, may not give an employee a right to sue their employer.
However, if an employee is terminated for a reason which is in violation of state or federal statutes or common law, including, but not limited to discrimination based on Differential or Disparate Treatment, Harassment and a Hostile Work Environment, Retaliation for engaging in Protected Activity or the other claims listed on the Homepage, the employee may have a claim against the employer, and the fact that the employer’s reasons for terminating the employee are wrong, may be used as evidence of that discrimination, or other illegal conduct.
If, however, the reasons for an employee’s termination are factually incorrect, and the employee can prove it and that he or she was not otherwise terminated for work connected misconduct, among other factors, the employee may still be entitled to unemployment insurance benefits, depending on the circumstances.
What Conduct May Not be Unlawful or Illegal?**
The law does not require that an employer be nice (as opposed to subjecting a person to a hostile work environment or harassment because of their Protected Class or retaliating against an employee for engaging in Protected Activity) or fair (as opposed to not treating a person of a Protected Class and persons outside that class equally) to an employee. By itself, it is not discrimination or retaliation for an employer, manager, supervisor or coworker to be mean, unfriendly, insensitive, rude, have unrealistic or impossible expectations, not give proper direction, not give credit for or criticize an employee’s work, give bad or inaccurate reviews, not pay what an employee believes they are worth, discipline or terminate an employee for reasons which are inaccurate or even to be abusive, if such conduct is not motivated by discrimination because of an employee’s Protected Classifications or retaliation because of an employee’s Protected Activity, or other illegal factors. Such things, when unrelated to discrimination based on an employee’s Protected Class or retaliation for Protected Activity (or other illegal factors), may be considered “ordinary tribulations of the work place.” If a manager is extremely abusive to all his subordinate employees equally, it may not be discrimination or retaliation. If a manager has a personal gripe against one employee that is unrelated to that employee’s Protected Classifications or Protected Activity, it may not be discrimination or retaliation. For instance, if a manager suspected that an employee dinged her car in the company parking lot, and treated the employee poorly or fired him because of it, even the employee did not do it, it may not be discrimination or retaliation.
However, if an employer, manager, supervisor or coworker treats a person differently or poorly because of that person’s Protected Class, there may be a claim of discrimination if the treatment is combined with an “Adverse Employment Action” as discussed in more detail on our Discrimination in General page. Further, if an employer, manager, supervisor or coworker treats a person differently or poorly because of that person’s Protected Activity, there may be a claim of retaliation if the treatment is combined with a “Materially Adverse Action” as discussed in more detail on our Retaliation in General page. Lastly, if an employer, manager, supervisor or coworker subjects an employee to Harassment and a Hostile Work Environment because of their Protected Class, and the harassment is sufficiently “severe or pervasive,” the employee may also have a claim of discrimination as discussed in more detail on our Sexual Harassment and Other Discriminatory Harassment & Hostile Work Environment page.
When an employee establishes discrimination based their Protected Class or retaliation based on their Protected Activity, the acts described in the preceding paragraph as “ordinary tribulations of the work place” may be used as evidence to support the employee’s claim of discrimination or retaliation. Such behavior may also be evidence of other illegal conduct. For a non-exclusive list of other illegal employment related conduct, please review the other employment related claims listed on our Homepage.
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*A Free Consultation is a short discussion of your legal needs to determine if our firm can be of assistance to you. It does not include free legal advice and nothing discussed during the Free Consultation should be construed as legal advice. Free Consultations are limited to certain practice areas. SENDING A MESSAGE THROUGH THIS WEBSITE, EMAILING OR CALLING AND/OR LEAVING A VOICEMAIL MESSAGE DOES NOT CREATE AN ATTORNEY/CLIENT RELATIONSHIP. NO SUCH RELATIONSHIP IS ESTABLISHED UNTIL AN AGREEMENT OF SUCH A RELATIONSHIP IS REDUCED TO WRITING AND SIGNED BY JACK QUENTIN NICHOLS. IF NO RESPONSE TO YOUR MESSAGES ARE RECEIVED BY YOU WITHIN 24 HOURS, YOU SHOULD CONSIDER OUR FIRM TO HAVE DECLINED TO REPRESENT YOU, AND YOU SHOULD SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY AS THE LAW LIMITS THE TIME IN WHICH YOUR RIGHTS MAY BE ASSERTED. IF YOU SPEAK WITH AN ATTORNEY AND THEY DECLINE YOUR CASE, YOU SHOULD ALSO IMMEDIATELY SEEK THE ASSISTANCE OF ANOTHER ATTORNEY IMMEDIATELY FOR THE SAME REASONS.
**THE INFORMATION ON THIS PAGE AND ELSEWHERE ON THIS WEBSITE IS ONLY INTENDED TO PROVIDE A BRIEF OVERVIEW OF SOME OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS AND SOME OF THE REQUIREMENTS OF THOSE LAWS. THIS BRIEF OVERVIEW DOES NOT CONTAIN A FULL DESCRIPTION OF ALL OF THE LAWS AFFECTING EMPLOYMENT IN THE STATE OF TEXAS, NOR DOES IT CONTAIN ALL OF THE REQUIREMENTS TO PURSUE OR DEFEND ANY PARTICULAR TYPE OF EMPLOYMENT LAW CLAIM. THE LAW REGARDING EACH PARTICULAR EMPLOYMENT LAW CLAIM, AND THE INTERPRETATIONS THEREOF, MAY VARY FROM TIME TO TIME, PLACE TO PLACE, JURISDICTION TO JURISDICTION, FROM COURT TO COURT AND FROM EMPLOYER TO EMPLOYER. THE INFORMATION ON THIS PAGE ONLY APPLIED TO PRIVATE EMPLOYERS, NOT PUBLIC AND/OR GOVERNMENT EMPLOYERS FOR WHICH DIFFERENT RULES MAY APPLY. IN ADDITION, THE APPLICATION OF ANY PARTICULAR EMPLOYMENT LAW WILL DEPEND ON THE FACTUAL CIRCUMSTANCES SURROUNDING EACH CASE. EVERY EMPLOYMENT LAW CASE IS FACTUALLY UNIQUE, AND THE APPLICATION OF EACH EMPLOYMENT LAW WILL VARY. ACCORDINGLY, NOTHING WHICH IS WRITTEN ON THIS PAGE IS INTENDED TO CONSTITUTE LEGAL ADVICE WITH REGARD TO ANY PARTICULAR SITUATION. YOU ARE ADVISED TO CONTACT AN ATTORNEY IMMEDIATELY TO DISCUSS THE APPLICATION OF THE EMPLOYMENT LAWS AFFECTING THE STATE OF TEXAS TO YOUR SITUATION.