At Will Employment
Rob Wiley: My name is Rob Wiley and I'm here today speaking with Austin employment lawyer Collin Walsh. Now a lot of times employers throw out this term employment at will but there's a lot of confusion about what exactly employment at will means. So, in the employment law context what is employment at will?
Colin Walsh: Employment at will simply means that your employer can fire you for any reason or no reason at all as long as their reason is not prohibited by any other laws.
Rob Wiley: Now, let me ask does that mean reasons that could be unethical, untrue, malicious, mean spirited those things seem like a real injustice. Does the Texas legislature often let employers get away with that kind of treatment?
Colin Walsh: Unfortunately they do. When we have a lot of people come into our office who have been fired for unethical, unjust, unfair, mean spirited or just plain wrong reasons but unless it violates some other employment law then it's going to be okay under state law.
Rob Wiley: So as an employment lawyer how do you get around this Doctrine of Employment at Will?
Colin Walsh: Well you hit the nail on the head. Most of our job is getting around this Employment at Will Doctrine and the way we do it is we look for the cause of action that is prohibited by other laws. So, for example, an employee cannot be fired because of their race, because of a disability, because of a religion, because of their gender.
Rob Wiley: I think that that's true about employment law. I mean so much of it is about the mental state, like what somebody was thinking. Termination in and of itself isn't illegal but if you terminate somebody because of race then that would violate several laws.
Colin Walsh: That's absolutely true and one of the hardest things for a lot of potential clients is knowing whether or not that intent, that thing in your mind is what caused it because nobody comes out and says I'm firing you because of your race. I'm firing you because of your gender or because of your disability and that's where an employment lawyer is really going to be able to help you find the real reason for that termination because while it's true that in Texas and under at will employment you can be fired for any reason or no reason at all. Employers have a reason for terminating you and an employment lawyer is going to help you be able to find that and discover whether or not you do have any remedies or rights to combat that.
Rob Wiley: And if you have people come in that maybe thought that they had a claim because of one thing but found something else?
Colin Walsh: That happens all of the time. Employees will come in or former employees will come in and say that they were fired because of an unethical decision and we will go and we will talk to them about what happened, the facts leading up to it. Whether other employees are held to the same standards and we will discover that there were other reasons. Sometimes those violate other laws and often we're able to help them get justice for what happened to them.
Rob Wiley: But just to be clear let's say an employer says you are an employee at will we can fire you for any reason or for no reason, no reason whatsoever, if that employee experiences race discrimination or age discrimination could they still have a legal case despite being employees at will?
Colin Walsh: Absolutely, that employee if he was discriminated against because of his race, because of his age will have a cause of action against his employer regardless of whether he was employed at will, regardless of whether the employer gave him a reason for his termination.
Rob Wiley: Well and I think one other thing to remember is though the vast majority of employees in Texas are employees at will. There are still some employees who aren't. There are employees for cause or for term. Do you want to talk about those kinds of employees, what they are?
Colin Walsh: Yeah, these are rare types of employment agreements or employment relationships but some employees and usually their executives or high- level managers or supervisors at particular jobs will have what's called a for-clause employment arrangement and that simply means that they're not able to be fired for any reason or no reason at all but rather they have to have, the employer that is, has to have good cause or cause to fire them and that cause is going to be defined in an employment agreement or in an employee handbook. Usually it includes things like misconduct, embezzlement or fraud but it's really important to contact an employment attorney in order to determine whether or not you have such a relationship and what cause is and whether cause was met in your particular situation. It is a fact intensive discussion.
Rob Wiley: Thank you, Collin.
Colin Walsh: Thank you.