— At-will Category Archives — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Last Minute Shopping? Bring Kindness.

December 22, 2022 | Paige Melendez

Whether you are last minute shopping or merely intend to do some shopping during the busiest shopping time of the season, we all know that stores become packed. This includes lines of people longer than normal, harried store associates racing to re-stock shelves and answer questions, and customers becoming less patient. It’s the last symptom that brings forward my trite recommendation for this holiday season: Be Kind. This mantra is used year-round for various purposes – believe me, I too roll my eyes – but in the context of an at-will employee diligently working during the winter, it makes sense to be reminded and here’s why. In my last blog I looked at how holiday hours are only beneficial if you can and do work overtime hours. This blog is about how workers are treated during those busy holiday hours by customers and store management.

If you have ever had to work in any kind of customer service position or retail job, then you are aware that the holiday season brings a type of dread with it. Most customer service based positions and almost all retail positions are hourly employment jobs and deemed to be at-will. At-will employment in Texas means that there is no job protection for these workers, and they can be fired for any reason or no reason at all. For example, take Rhonda – a cashier – putting in her very best efforts, battling the long lines of patrons and getting them through the checkout line as quickly as she possibly can. Drake, her manager, who is upset at how many customers are complaining during the holiday season, may not care about Rhonda’s best efforts. All he hears and cares about are the customers complaints over the predictably long lines. After being on her feet all day, and even working overtime hours with the store staying open late, Rhonda could be fired. Rhonda would have no recourse if her unreasonable manager terminated her employment for a legitimate non-discriminatory reason like customer complaints about long lines in front of her cash register.

Aside from her manager’s obtuse lack of understanding about the holiday shopping season, Rhonda may feel some modicum of relief at being relieved of her job duties. It may be shocking to think that someone losing their job during the middle of the holiday season would have any benefits, but the silver lining for Rhonda may be the fact that she no longer has to put on a happy face as customers continually berate her.

What are my options if my employer forces me into court far from home?

August 18, 2022 | Austin Campbell

Summary: This article discusses some strategies, including different contract clauses, that employers might use to try to control where you can sue them, or to try to sue you in a far-away place.

If you are in a legal dispute with your employer, where the lawsuit is filed can make a big difference. That affects who the judge is or who might be on the jury. Exactly where a lawsuit can be filed depends on the nature of the legal claims in it. However, two basic principles generally apply. If there are multiple permissible options of where to file suit, the party filing suit gets to choose where to file suit. However, the location must be somewhere that has “personal jurisdiction” over the defendant—i.e., the defendant has to have sufficient connections to the location for it to be legally “fair” to sue them there. This article, however, explores ways that employers may try to get around these basic principles through contracts containing “forum selection” or “venue selection” clauses.

While Texas is an at-will state and sometimes you may have next to nothing in writing from your employer that controls the terms and conditions of your employment, your employer might force you to sign things like a non-compete or an arbitration agreement as a condition of employment. Those may contain language trying to force any disputes to be heard somewhere specific to get around the usual rules for where they should be heard.[1] This can potentially result in situations where you, a Texas employee, are either sued or have your lawsuit moved to a location far from you or even out of state. This might also result in non-Texas employees being sued or forced to only sue in Texas.

The Truth Will Not Hurt You!

August 12, 2022 | Deontae Wherry

Searching for a job in today’s job market can be a tedious and competitive process. Employers are adding more requisites and qualifications to job postings in an attempt to attract the best candidate. That, in turn, requires candidates to find ways to better market themselves, including sometimes exaggerating their skills and qualifications on their resume and application or misrepresenting why they left their last employer. Let me warn you—don’t misrepresent your qualifications or the reason you left your employer. If a job is meant for you, the job will be for you.

How can a misstatement on an application affect you in an employment case?

For purposes of this article, employers will use any information that will undermine the employee’s credibility. Put simply, one of the employer’s objectives is to show that employee is not trustworthy. One way to do that is by looking to an employee’s application to determine if the employee misrepresented his or her experiences, qualifications, or previous job history. If you intentionally mispresent information on your application or your resume, the company will also use your misrepresentation against you as an after-acquired evidence defense. The best way to avoid helping an employer build one of its defenses is by being truthful.

The limits of the duty to preserve evidence in Texas

April 14, 2022 | Austin Campbell

This article gives a brief overview of when and to whom a duty to preserve evidence applies under Texas law, and discusses why it is usually important to clearly put your employer on notice as soon as possible if you have a legal claim against it.

Many times when someone first hires a lawyer to pursue an employment claim, they ask about getting information or evidence from the employer. Despite how the media present things, there generally is no legal requirement for an employer to turn over any information whatsoever to a current or former employee, even under threat of a lawsuit. Texas rules generally allows so-called “pre-suit discovery” in limited circumstances, like to preserve information or testimony that might otherwise be lost (for example, by the death of a witness).

Usually then, an employee has to file suit and then conduct formal discovery to actually get information from their employer related to their claims. If, by that time, that evidence is conveniently gone, what a plaintiff might be left with is only seeking remedies after the fact for “spoliation,” or the unlawful destruction of evidence. Courts may penalize a party that destroys evidence in various ways, such as by instructing a jury to conclude that the destroyed evidence was exactly what the other party says it was, assessing monetary penalties, or even dismissing legal claims brought by the responsible party. Generally, the more unreasonably the party that destroyed evidence behaved, the worse the penalties.

Holiday Cheer and Termination Fear: Can I be fired for my behavior at a work holiday party?

November 18, 2021 | Rob Wiley, P.C.

It’s the most wonderful time of the year. Love them or hate them, this is the time of the year during which employers are finalizing holiday party plans. After a long pause on holiday parties due to Covid-19, many employers are gearing up for their first holiday party since the pandemic. Work holiday parties are a time for employees to get together, socialize, and celebrate a year well done. This is your opportunity to shake hands with the movers and shakers. However, holiday parties are notoriously known to pose serious risks for employees, especially if alcohol is served.

Let’s address the big Texas elephant in the room. Texas is an “at-will” state. That means your employer can fire you for no reason or any reason, short of unlawful discrimination or retaliation. In Texas, termination caused by your actions at a work holiday party is no exception to the “at-will” rule.

Following the holiday season, I typically notice an increase in consultations from employees who were terminated based on their behavior at a holiday party or who were either sexually harassed or discriminated against at a holiday party. A typical misconception is that your behavior and your employer’s behavior at a holiday party is not subject to workplace polices or procedures or employment laws. However, you are still subject to workplace policies and your employer is still subject to labor and employment laws, regardless of whether the party is held at work or off-site.

Strategize your Resignation

November 11, 2021 | Paige Melendez

For employers and employees alike it is becoming apparent that there is a trend of employees leaving their workplaces. In Texas, the at-will doctrine allows an employee to leave for any reason or no reason, but sometimes resignations can be a bit more complicated. For employees it is complicated because resignations can be and should be used strategically rather than a simple decision to leave a job. To use a resignation strategically, there are a few things to consider and think about before pulling the plug.

First and foremost, leaving a job can evoke questions about eligibility for unemployment benefits. In Texas, resignations, except for narrow exceptions related to “good cause connected with the work,” can be fatal to an application for unemployment benefits. While every case is different, resignations likely spell the end for unemployment benefit eligibility. Yet, it ultimately comes down to the Texas Workforce Commission’s decision. Therefore, if unemployment benefits are part of the financial planning underpinning a resignation, it is important to keep this in mind.

If unemployment benefits are not a concern or can be overlooked, then resignation becomes a good option to leave an employer on amicable terms. Outside of a contractual obligation, there is generally no notice period requirement on resigning. Nonetheless, there are practical steps to take before submitting a notice of resignation to protect your best interest. By way of example, medical procedures that can be done while health insurance coverage is still fully paid by your employer, figuring out finances in case you cannot find a different job, how a resignation might look at your next employer, and finally, contractual obligations. The contractual obligations can be tricky and are typically governed by an employment contract that an employee signed at the beginning of employment. Contracts that govern resignations or leaving a job without cause sometimes have requirements like a notice period, a method of giving that notice like certified mail to a specific address, or even set out specific information that needs to be in a notice. Some contracts even have promises of severance.

When it doesn’t pay to be the boss: the Fair Labor Standards Act’s “Manager Rule”

September 9, 2021 | Austin Campbell

Summary: This article gives a brief overview of the problems that the “manager rule” can cause high-level employees trying to raise concerns about pay issues, as well as the limits of that rule.

Categories: At-will; Wrongful termination; Retaliation Claims; Fair Pay; Wage and Hour; Tipped Employees

If your employer turns on you and starts taking actions against you because you raised a complaint protected by law, you may be suffering unlawful retaliation. However, not all laws treat all complaints—and all whistleblowers—the same. As a result, even clear retaliation might not always cross over the line into actually being illegal.

At Will Employment: What does it really mean in Texas?

February 26, 2021 | Rob Wiley, P.C.

What does it really mean to be an “at will” employee in Texas? You’ve certainly heard of this term often. In the next few paragraphs, I will talk about what that term really means in the eyes of the law and how it impacts you, and I’ll also discuss the exceptions to at will employment.

The first thing you should know is that Texas is an “at will” employment state. At will employment simply means that your employer can fire you at any time, for any reason, or for no reason at all. That actually includes false, malicious, unfair, or unethical reasons, as long as those reasons aren’t illegal, or in violation of a contract (we’ll discuss below). At the same time, it also means that you, the employee, can quit your job at any time, for any reason, or for no reason at all. But what if your employer required you to give two weeks’ notice before you quit; does that mean you’re not an at will employee? In general, if your employer requires two weeks’ notice before you quit but reserves the right to fire you without notice, then your employment is likely still at will. This means if you quit without notice, you may be violating your employer’s policy, but not any law or contract.