Exceptions to At-Will Employment

Shorthand NameExplanationSourceComments
Definite TermA hiring at a stated sum per week, month, or year is definite employment for the period named and may not be arbitrarily terminated. E.g. hiring at $60,000 for one year, may limit rights to discharge for one year unless there is "good cause".English Rule; Winograd v. Willis (Houston Court of Appeals 1990)If term exceeds one year, the Statute of Frauds requires a written contract to be enforceable.
Employment ContractAn employer is free to place contractual limits on its ability to fire at-will.  The limitation needs to be clear and specific.Caselaw: Winograd v. Willis, Lee Wright v. Hall, Day & Zimmerman, Inc. v. Hatridge, Webber v. M.W. Kellogg Co.A contract may or may not modify at-will.  It can do it by an express "for good cause" clause, or merely by having a definite term.
Public Policy ExceptionFiring an employer for refusing to perform a criminal act.Sabine Pilot Service v. Hauck (Texas Supreme Court decision in 1985)For the termination to be found wrongful under the Sabine Pilot, the sole reason has to be refusal to perform a criminal act.  The act cannot merely be ill-advised or potentially civilly liable.  If there is another even (partial) reason for the termination, there is no liability.  If the criminal act is not required, there is no liability.
Age Bias (ADEA)Successful plaintiff can get back pay, front pay, reinstatement, attorneys fees and (if willful violation).Age Discrimination in Employment Act (ADEA) and Texas Commission on Human Rights Act (TCHRA).Protects 40+ yr. olds if they work in work places with 20+ employees.
Race, Sex, Color, Religion,
National Origin Discrimination
(Title VII)		Prohibits unequal terms or conditions of employment due to bias.  Successful plaintiff can recover reinstatement, back/front pay, attorney's fees, expert fees, and (capped) punitive damages.Title VII and TCHRAThis does not currently protect from discrimination based on: sexual preference (but that could change shortly) or alien status.  Only governs private employees with 15 or more employees.
Disability DiscriminationCan't discriminate against disabled and must make "reasonable accommodation" unless it would result in undue hardship to company.Americans with Disabilities Act (ADA) & TCHRARequires 15 or more employees to apply.  Disabled person must be able to do the job with or without the accommodation.
Retaliation Under
Discrimination Laws		Employer cannot retaliate against employee for exercising rights under discrimination statutes.Title VII, ADA, ADEA, TCHRAEven if the charge of discrimination lacks merit, employers must not retaliate.
WARNRequires 60 days notice of "mass layoff" in a plant (defined in the statutes).Worker Adjustment & Retaining Notification Act, 29 U.S.C. §2101 et. seq.Only applies to 100 plus employee companies
Sexual HarassmentQuid Pro Quo (continued employment conditioned on sexual favors).Title VIIFalls under Sex Discrimination and now does include same-sex harassment (Oncale v. Sundowner Offshore)
FMLACan't terminate an employee for taking or requesting FMLA leave.Family Medical Leave Act of 1993Covers only 50 plus employee companies.
Emergency EvacuationCan't terminate an employee who follows a valid evacuation order. TEX. LABOR CODE §22.001
Child SupportCan't fire employee for having withholding order for child support.TEX. FAM. CODE §14.43(m)
Compliance with SubpoenaCan't fire employee for complying with subpoena.TEX. LABOR CODE §42.051Subpoena has to be valid on its face
AIDS TestingCan't fire employee for refusing AIDS test.TEX. HEATH & SAFETY CODE §81.102Unless Test is a Bona Fide Occupational Qualification
Workers' Compensation
Retaliation		Can't terminate an employee for taking steps to file a claim under the Texas Workers' Compensation Act.TEX. LABOR CODE  §451Does not apply to non-subscribers.
Rehabilitation ActProhibit employers who are federal contractors (or participate in federally assisted programs) from disability discrimination.29 U.S.C. §701 et. seq.This predates the ADA
Unfair Labor Practices (NLRA)Prohibits employers from firing employees for engaging in collective bargaining and unionizing.29 U.S.C. §151 et. seq.The National Labor Relations Act is not often used vis-a-vis small Texas employers.
OSHA Retaliatory DischargeCan't terminate an employee for complaining of OSHA violations29 U.S.C. §651 et. seqThis provision in the Occupational Health & Safety Act has "sister" provisions in the Clean Air Act, the Railroad Safety Act, and the Federal Water Pollution Control Act.
FLSA Complaint RetaliationProhibits retaliatory discharge for complaining of minimum wage or overtime violations29 U.S.C. §201 et. seqThe Fair Labor Standards Act requires employers to pay minimum wage and overtime
ERISA ViolationsProhibits discharge exercising ERISA rights29 U.S.C. §1001 et. seqThe Employee Retirement Income Security Act contains extensive regulations protecting employees' rights under employer benefit plans.
Consumer-Credit Protection ActProhibits discharge of employees for one garnishment15 U.S.C. §1674(a) et. seq
Jury DutyThe Federal Judicial Procedure Act and state law prevents employers from discharging employees for serving on jury29 U.S.C. §1875 et. seq and §122.001 of the Texas Civil Practices and Remedies CodeState law grants wrongfully discharged employee reinstatement and six month's salary (plus attorney's fees).
Polygraph AbuseThe Employee Polygraph Protection Act prohibits employees from firing employees who refuse to take lie detector test or who fail a test29 U.S.C. §2001 et. seqThere are narrow exceptions in cases of theft, and reasonable suspicion.
Military Service
(USERRA)		The Texas Government Code prohibits employers from firing employees required to perform active duty in state military forces.  The federal law (USERRA) "guarantees" re-employment rights.   Tex. Gov't Code §431.005-006Be very careful about requiring any retesting of employees who went out on leave and return.  
Sarbanes-OxleyThe Act was passed to and signed into law to protect investors by improving the accuracy and reliability of corporate financial statements and by establishing stiffer penalties for those who violate the Act.  18 U.S.C. §1514A et seq.Only applies to publicly-traded companies.