ADA & Disabilities, Benefits, Leave Management, Policy, and Compliance

Guarding At-Will Status: Texas Employer’s Disability Policy Sabotages Its Handbook

We tend to take some things for granted. Well, actually, a lot of things. Here’s one: the presumption of at-will status in Texas. Yes, all employees are presumed to be employed at will, but don’t forget that a presumption is rebuttable. The court of appeals in Dallas recently provided a reminder.Texas

At-Will Employment Converted to Contract

It all seemed so innocent. The Transport Workers Union (TWU) employed “Nathan” as an executive, and he was an at-will employee. In 2012, the TWU revised its disability policy to include the following provision under the heading “Return to Work Following Disability Leave”:

An employee on sick leave or disability leave will continue to be an employee with TWU for . . . twelve (12) consecutive months from the last day worked prior to commencing the leave.

In July 2013, Nathan had knee surgery. He took sick and disability leave starting in August 2013. The TWU terminated his employment in November 2013. Do you see the fly in the ointment? Yes, that’s right: He was transformed from at-will status to contractual status based on the language of the disability policy. At the time of his termination, Nathan still had almost a year left on his “contract.”

At-Will Disclaimer?

Yes, the TWU’s main handbook had a disclaimer stating that nothing in it should be construed as altering employees’ at-will status. However, the disability policy was in a separate handbook, not the main one. So nice try, but no dice.

Yes, there were at-will disclaimers in offer letters sent to Nathan, but they predated the disability policy’s revision. And there was no indication that his employment application stated that he would be an at-will employee and that his status could be changed only by the company’s CEO extending a written offer. So Nathan gets to take his wrongful termination claim to a jury. Videtich v. Transport Workers Union of America (Tex. App. Dallas, 2016).

Bottom Line

Here is a handy phrase: “This change in the policy shall not change your status as an at-will employee.” Think about popping it into new policies or policies you are revising. Words matter.

Michael P. Maslanka is an editor of Texas Employment Law Letter and can be reached at Michael.Maslanka@FisherBroyles.com.