Making the Argument

The Hard Truth: Most Employment is At-Will

By Michelle Fulton

October 14, 2004

The information in this column is not intended as legal advice but to provide a general understanding of the law. Any readers with legal problems, including those whose questions are addressed here, should consult attorneys for advice on their particular circumstances.

Q: I have been working at a restaurant for a little over a year. My boss has always been a jerk to me and expects more out of me than he does out of other employees. About a month ago, I needed a day off to attend a very important family dinner. I asked for the day off well in advance and he said that would be okay. Then the work schedule for that week came out and they scheduled me to work that day. I went back to my boss and reminded him that I needed the day off for my family dinner and he said not to worry about it, that they would take care of it. The day before the event, I reminded him again and he said it was cool.

So, I went to my family dinner and when I went in to work the next day, my boss fired me for not showing up the day before. I told him that I had reminded him over and over that I needed the day off and he said that he never said I could have the day off, when in fact he had told me several times that he would take care of it. Is it legal for him to do that? Is there anything I can do about it?

A: Well, that depends. Texas is an employment-at-will state. What that means is that your boss can fire you for any reason he chooses to. Now, there are a few exceptions to that rule. One thing I always suggest is that if you negotiate anything with your boss, and he agrees to it, get it in writing. Then, if he breaches your agreement, you can do something about it in the courts.

Here, it sounds as if it is more of a case of his word against yours, and without something in writing or witnesses to support your version, there is very little you can do. It is very difficult to prove wrongful termination in an at-will employment situation. There are a few exceptions to that rule, such as sexual discrimination, racial discrimination, retaliation for reporting sexual harassment and in cases where the employment contract that is for a definite length of time and is not an at-will contract.

If you have or can get a copy of your employment contract, if indeed there was one, check to see whether your employment was at-will. If it was not at-will, and your boss has clearly violated the terms of the contract, then you should consult with an employment attorney at once to see if you have any options.

Otherwise, if it was an at-will contract, and if you can prove that your boss agreed to give you that time off and you have other legitimate complaints against him that can be corroborated by your former co-workers, you should consult with an employment law attorney and see if you have any recourse.

In the future, though, make sure that all requests to have time off are in writing, and that your boss or other supervisor acknowledges their agreement to give you that time off in writing. While it is true that some employers will balk at such a request, it is worth it to make the effort to protect your interests. Good Luck!

Michelle Fulton is an attorney at The Fulton Law Firm, PLLC. If you have a legal problem you would like her to address, you may e-mail your request to michelle@fultonlawfirm.com or mail your request to her at 806 Hwy. 3, Houston, Texas 77058.

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