Can my Texas employer fire me for doing what my manager told me to do?

Fort Worth Discrimination Attorney EEOC LawyersHere’s a tricky situation: you follow a specific instruction from your manager or a company policy. Then your employer fires you. Can this happen for following orders? Unfortunately, in most cases the answer: yes. Seems bizarre–and it is–but this is the nature of the at-will employment relationship. In an at-will employment relationship the employer can discipline an employee, up to termination, for a bad reason–even no reason at all. The employer can fire you for doing exactly what it instructed you to do.

This is among the most glaring proof that the at-will employment relationship is a legal fiction. Texas law treats the at-will employment relationship as a mutual agreement between two equals. This is a complete myth. There is no equal power in a relationship when one party can retroactively and unilaterally change the terms of the agreement. That said, there are exceptions to this general rule.

Exceptions to at-will employment in Texas

  1. You work under a collective bargaining agreement or contract that outlines your job duties and/or the employer’s disciplinary practices. If you work under a collective or individual contract then you are not an at-will employee. Your employer must follow the terms of the contract. If the employer breaches the contract then you can pursue available relief under the contract along with remedies at law for breach of contract.
  2. The change of heart after the fact is an excuse to attack your job for an unlawful discriminatory intent. Your employer cannot discipline you for following established policies or instructions when the purpose of the supposed change of heart about your conduct arises from an unlawful discriminatory purpose. Your employer can’t make up new rules to punish you as a way of deflecting away from an unlawful motivation. The unlawful discriminatory purposes may be discrimination on the basis of age (over forty), race, ethnicity, national origin, sex/gender, religion, or disability, as well the exercise of a legal right or duty such as requesting FMLA leave, requesting payment of minimum wage and overtime pay, unionization, requesting a reasonable accommodation to a disability, or participating in the armed forces.
  3. The manager’s original instruction was against company policies to set you up for discipline for violating policies AND the purpose of the manager’s deceit was to cover up an unlawful discriminatory attack on your job. Slightly different situation here: you received an instruction that violates company policy and then the manager denies giving it. Here the company’s discipline would be legitimate if not for the manager’s shady action. An unlawful discriminatory intent must motivate the manager’s conduct. (In employment law this scenario is cat’s paw liability.) In the latter two situations you may have substantial claims against your employer for unlawful employment discrimination.

If you are wrongfully terminated in Texas

If you are fired for an employer’s contradictory policies or instructions and there is no breach of contract or unlawful discrimination then you may still have a claim for unemployment benefits with the Texas Workforce Commission. The employer may be free to terminate you in spite of its own policies. That generally creates a strong claim for unemployment benefits. You should pursue a claim for unemployment benefits in any of these situations.

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