Dallas Employment Trial Lawyer Austin Campbell
This article tries to put workers on notice that employers are increasingly trying to set up situations where they can fire employees at any time and for any reason, but the employees are not allowed to seek work elsewhere without their boss’s say-so. This could result in workers being essentially trapped in their jobs against their will.
Texas is an at-will employment state. What that is supposed to mean is that (barring some specific legal violation) employers can fire an employee or any reason or no reason, and an employee can quit for any reason or no reason. For all practical purposes, there is a presumption of at-will employment in Texas. And nominally the 13th Amendment, which bans slavery, also prevents employers from forcing (non-prisoner) employees to work for them. However, in the last several years there have been increasing instances of employers trying to make at-will employment a one-way street—namely, that they can fire employees for any reason or no reason, but employees can’t leave without their employers’ permission.
Probably the most common way employers have started to do this is through non-compete agreements. As we have written about before, in Texas a non-compete is supposed to be limited to reasonable restrictions on professional activity, within a reasonable geographic limit and duration. It is also supposed to be limited to protecting a legitimate interest of the employer. However, employers often try to write non-competes as vaguely and broadly as possible, so that virtually anywhere an employee might work anywhere in the world (unless it’s a totally different industry that the employee would not be qualified for) could conceivably violate the agreement. That way, the employer can mandate that all their employees agree to non-competes (often after the employees have already been working for a while) and then use the agreements as a scare tactic—regardless of whether a court would ultimately enforce the terms—to discourage employees from leaving on pain of financial ruin. Employers may try to “make an example” of a few employees to try to develop a reputation for throwing the book at anyone who leaves and stays in the same industry, to keep others in line.
Another way employers try to force employees to stay are so-called “clawback” provisions. Sometimes these are as simple as a set retention bonus that needs to be paid back if the employee quits before a certain number of years. However, recently these efforts have become more insidious. Employers may try to force quitting employees to pay back the alleged cost of training them, for instance. Other times, employers may try to claim that a leaving employee owes them lost profits because leaving at a bad time constitutes a “breach of fiduciary duty.” In one high-profile case, Rieves v. Bucc-ee’s Ltd., 532 S.W.3d 845 (Tex. App.–Hous. [14th Dist.] 2017), that company used language in its employee agreement to try to force a manager who left to return tens of thousands of dollars of pay because they left before the five-year mark and failed to give six months’ advance notice of quitting. Fortunately, the Court determined that this was an unenforceable “restraint on trade” because the agreement’s penalty had essentially no limit and applied no matter where the employee left to go. However, that case cannot stop other employers from trying to find some loophole to enforce a similar agreement in the future.
Staffing companies (that is, companies that place employees at assignments at other companies) may also get in on this game. Some staffing companies have included language in their employment agreements baldly proclaiming that while they have no obligation to give notice of termination or even place an employee at a single assignment, the employee is forbidden from leaving until they complete a certain amount of work. With this, a staffing company could theoretically create a state of forced unemployment by refusing to assign work. However, this openly flouts Texas’ at-will doctrine.
Perhaps most infamously of all—although not in Texas—in 2022 a Wisconsin hospital, ThedaCare, sued another medical provider (Ascension) to force seven employees who had recently left ThedaCare for Ascension to return to work at ThedaCare. The judge in that case actually granted a temporary restraining order to stop the employees from starting their new jobs. Fortunately, that was not extended into a longer-term injunction. However, the fact that this case made it that far is concerning in itself, and while ThedaCare later dropped the suit, the negative publicity it received was probably a major impetus for that.
Admittedly, in the ThedaCare and Bucc-ee’s examples above, the employers’ gambits ultimately failed. However, employers don’t necessarily have to get legal vindication to achieve their objective of stopping employees from exercising their right to quit at-will. The financial strain on individual workers of having to defend against even a frivolous case is far greater because of the imbalance between the resources of employers and employees. It is important to point out that Bucc-ee’s initially won in its case, and it was only because the employee, Kelley Rieves, could afford to appeal that the decision was reversed. Not everyone has that kind of money.
Workers in Texas should be wary of employers trying to trap them in a job against their will, or trying to get them to waive other rights. If you are concerned that your employer is violating your rights, you should speak to an employment attorney like those at Rob Wiley, P.C.