- posted: Apr. 05, 2013
- General Information
The vast majority of workers in Texas are at-will employees, which means that they can be fired for a good reason, a bad reason, or no reason at all. For a general discussion of at-will employment, click here.
So what are the rights of at-will employees in Texas? This article provides a general discussion of the topic.
1. When can an at-will employee sue for wrongful termination?
At-will employees generally have no right to sue for wrongful termination, because the very nature of the at-will employment relationship means that the employer can fire the employee at will. However, an employer cannot fire an employee for an illegal reason. The illegal reasons are defined by the employment discrimination laws and the retaliation laws.
2. When can an at-will employee sue over a demotion or a pay cut, or the denial of a promotion or a pay raise?
The answer is the same as for wrongful termination: In general, an employer can demote an employee, cut the employee's pay, deny a promotion, or deny a pay raise at will. However, the employer cannot do this for reasons that violate the employment discrimination laws or the retaliation laws.
3. When can an at-will employee sue for harassment?
Once again, an employee can sue for harassment only if the harassment is linked to something that is protected by the employment discrimination laws or the retaliation laws. If an employer or supervisor harasses an employee because of the employee's race, sex, age, disability, or other protected status, then the employee may have a claim. If the employer or supervisor harasses an employee out of spite or due to a personality conflict, the law provides no remedy. The employee simply has the right to find a new job,
4. What if the employee is treated unfairly?
Again, if the unfairness is linked to something that is protected by the employment discrimination laws or the retaliation laws, the employee may have a claim. Otherwise, the employer has no legal duty to be fair or reasonable.
5. How much is an employer required to pay an at-will employee?
An employer must pay the minimum wage that is established under the federal Fair Labor Standards Act. Otherwise, an employee's wage is a matter of negotiation between the employer and the employee.
6. What if the employer pays more to another employee who is doing the same job, or who is less productive?
The employer has the right to do this, unless the pay discrepancy is linked to something protected by the employment discrimination laws or the retaliation laws. The employer is not required to pay any employee "fairly."
7. What hours can an employer require an employee to work?
The employer can set whatever work schedule the employer desires. The employer can change the work schedule at will. If the work schedule is unacceptable to the employee, then the employee's remedy is to find a new job.
8. How many hours can an employer require an employee to work?
In theory, an employer could require an employee to work 24 hours per day, 7 days per week. Texas law places no restrictions on the hours that an employer can require.
9. How many breaks must an employer provide to an at-will employee?
None, except for certain employees in particularly hazardous jobs. Texas law does not require an employer to provide any breaks whatsoever to the employees. This is purely a matter of the employer's policy.
10. How many days of vacation must an employer provide to an at-will employee?
None. Texas law does not require any vacation time at all, even on holidays. This is purely a matter of the employer's policy.
11. How much sick leave must an employer provide to an at-will employee?
None, unless the employee qualifies for leave under the Family and Medical Leave Act. For a general discussion of an employee's rights under the FMLA, click here. Otherwise, leave is a matter of the employer's policy.
12. When an at-will employee is fired or quits, is the employer required to pay the employee for unused vacation time?
No, unless the employer's policy provides otherwise.
13. Can an employer monitor or conduct surveillance of at-will employees?
In the workplace, yes. Outside of the workplace, or in private areas such as restrooms and changing areas, the employer's rights are more limited.
14. Can an employer require drug testing?
Yes. There are no meaningful restrictions on drug testing by private employers.
15. Can an employer impose unreasonable work conditions that interfere with the employees' work?
Yes. The employer is entitled to run its business however it wishes. Once again, the employee's remedy is to find a new job.
16. Can an employer pay an at-will employee whenever the employer chooses?
No. The Texas Payday Law specifies when an employee must be paid. For employees who are not exempt from the overtime laws, the employer must pay at least twice per month, and the paydays are the 1st and 15th unless the employer specifies otherwise. For employees who are exempt from overtime, the employer must pay at least once per month. If an employee is fired, the employer must pay any remaining wages within six days from termination.
17. Can an employer withhold money from a paycheck?
No, the Texas Payday Law prohibits any deductions except (a) deductions pursuant to court orders (such as child support), (b) deductions provided by state or federal law (such as taxes), and (c) deductions agreed to by the employee in writing.
18. Other than the employment discrimination laws,the retaliation laws, the overtime and minimum wage laws, and the Texas Payday Law, do at-will employees really have any rights at all?
Yes. The at-will employment relationship is a two-way street. An at-will employee can quit and find a new job. This is why employers rarely exercise their rights to the full extent of the law. An employee who is required to work an 18 hour shift with no breaks at minimum wage with no vacations and constant harassment is going to quit. For most employers, the most important limitation on work conditions comes from the marketplace, not from the law.
David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes