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Termination Basics for the 12 Days of Christmas by Sam Burke

No one likes to think about letting go employees or being sued at Christmas time, but everyone loves a Christmas list. So in the hope that form overcomes substance, I bring you this wrongful termination twelve days of Christmas list.   Included in the list are some basic legal rules regarding wrongful termination and some less familiar employment protections. I recommend spiked eggnog while enjoying the list.

On the first day of Christmas, the Texas legislature gave us freedom.  Because the word freedom is so overused and too easily understood, lawyers call this at-will employment.  At-will employment means an employer can fire an employee for any reason or no reason at all.  Likewise, an employee can quit a job at any time for any reason or no reason at all. Well almost, keep reading. A second glass of eggnog is recommended immediately.

On the second day of Christmas, some decided to give up their freedom by entering into employment agreements. Employees and employers can agree to have specific rules that limit the employer’s right to terminate an employee.  If you choose to have an employment contract with your employee or employer, it should be in writing. Like any good Christmas list, it should be specific and reviewed by an adult, preferably a lawyer. Otherwise, like a Christmas list without important details, you may not get what you expect.

On the third day of Christmas, the United States Congress passed Title VII of the Civil Rights Act.  Title VII, passed in 1964, prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, and religion. But, Santa likes small businesses. So Title VII generally does not apply to employers with fewer than 15 employees. The Texas Labor Code includes state law claims that basically mirror Title VII. To prove a Title VII claim an employee must prove they belong to a protected class. This is not difficult as most people have a sex, race, color, national origin, and religion.  The employee must prove they were qualified for the job.  In most cases, this is also not a problem.  They were hired; ergo, they were qualified.  Although some wrongful termination claims are based on constructive discharge, termination is usually straightforward. Most of these claims revolve around the evidence that the employer terminated the employee because of their protected status, i.e. sex, race, color, national origin, and/or religion.

On the fourth day of Christmas, Congress gave us the Family Medical Leave Act.  The Family and Medical Leave Act of 1993 (FMLA) requires covered employers to provide employees with job-protected and unpaid leave for qualified medical and family reasons. The Act allows eligible employees to take up to 12 work weeks of unpaid leave during any 12-month period to attend to the serious health condition of the employee, parent, spouse or child, or for pregnancy or care of a newborn child, or for adoption or foster care of a child. In order to be eligible for FMLA leave, an employee must have been at the business at least 12 months, worked at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles.

On the Fifth day of Christmas, in 1985, the Texas Supreme Court gave us the Sabine Pilot decision. Santa is magical so the days of Christmas don’t have to be chronological.  I know you were thinking it.  Stop it.  It’s Christmas.  The decision in Sabine Pilot simply created protections for employees who refused to perform criminal actions.  So don’t ask your employees to perform criminal acts. Take Santa for instance, although he breaks into homes all over the word, he does not ask the elves to participate. It seems so basic, but based on current events, perhaps it bears repeating.

On the Sixth day of Christmas, Congress thought of our military.  Federal law grants employees the right to take up to five years off to serve in the Armed Forces with the right to resume the position when the individual returns to work. Federal law also prohibits discrimination against employees who have served in the military and protects employees from termination without good cause for up to one year after the employee returns from military duty.

On the Seventh day of Christmas, the State of Texas granted employees the right to unpaid leave for jury service. No one wants to serve on a jury, so you shouldn’t be fired for doing something you don’t want to do (but are legally required to do), right?

On the Eighth day of Christmas, Texas required employers to grant employees paid time off to vote unless the employee has two consecutive hours off work while polls are open.  Not a big deal around these parts until recently.

On the Ninth day of Christmas (circa 1990), the Americans with Disabilities Act (ADA) became law. The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The ADA gives civil rights protections to individuals with disabilities similar to those provided to individuals under Title VII. Generally, a disabled employee is entitled to a reasonable accommodation if, with the accommodation, they can perform the core functions of their job.  Well intentioned, but difficult in application at times. When applied in connection with other protections, such as the FMLA (mentioned above), it can be a bear for employers to navigate. More eggnog.

On the Tenth day of Christmas, the Texas legislature made it illegal to fire an employee for making a worker’s compensation claim.  If you fire an employee for making a worker’s compensation claim, that’s naughty.  You might have to give all your presents to your former employee.

On the Eleventh day of Christmas, The Age Discrimination in Employment Act of 1967 (ADEA) was passed to protect the elderly.  You know, employees 40 years of age and older from discrimination.  Don’t fire people just because they are old.  Even Scrooge wouldn’t do that. Besides, have you ever hired a Millennial?

Finally, on the Twelfth day of Christmas, the Texas Senate adopted the American Millennial Protection Act (AMPA).  AMPA protects the Millennial generation from being fired unless their mother or permanent guardian was present during all disciplinary actions and appropriate participation awards have been given.  Just kidding (I hope), pass the eggnog, and Merry Christmas.