Overview and scope of treatise

• Author: Laura M. Franze
• Pages: 22-23

 TEL F-20

OVERVIEW AND SCOPE OF TREATISE

The law that relates to employment in Texas comes from numerous sources, and it can be difficult for an

employer or employee to identify all the statutes, cases, ordinances, regulations, and rules which might impact

on any employment situation. Texas Employment Law is intended to guide the practitioner and employment

participant alike through this complicated and ever changing subject.

In the past two or three decades a revolution has occurred. The law of the workplace in Texas, as in the

United States as a whole, has been transformed. We have moved from an essentially laissez faire approach to

the employment relationship—let the parties decide their respective rights—to the present day where virtually

everyaspect ofthe employer-employeerelationship issubject toa mazeof statutoryand commonlaw. Even

routine employment matters and decisions require the knowledge and consideration of a multitude of laws

and case precedent. This being America, disputes about the effect of the law on employment decisions often

end up at the courthouse in litigation. In fact, it is no exaggeration to say that every hiring, promotion or

discharge decision is a potential lawsuit or perhaps more than one potential lawsuit, depending on the number of

participants involved. Texas employment law is in many ways a litigation-developed law.

A number of recent trends in the law have raised the stakes in employment litigation dramatically. The most

significant has been the enactment of the Civil Rights Act of 1991 and the related amendments to the Texas

Commission on Human Rights Act enacted in 1993. These amendments increase access to jury trials and

compensatory and punitive damages in many cases. Furthermore, completely new tort causes of action have

emerged, such as whistleblowing and the violation of public policy torts. Tort claims more traditionally applied

outside of the workplace, such as defamation, negligence, and invasion of privacy, have become commonplace

appendages to wrongful discharge and discrimination claims. Remedies in employment law have expanded

from pure equitable or contract damages of lost wages to include damages for emotional distress, mental

anguish, and other psychological injury claims, and punitive or exemplary damages. All these issues come

together to weave the tapestry we call Texas Employment Law.

The common law of employment relations is and was traditionally governed largely by the law of contract.

Thus, Part I, The Employment Relationship, fundamentally describes the employment relationship itself as a

contract. Every employment relationship contains elements of a contract—a contract to provide services for

pay. Whether that contract continues purely at the will or discretion of both parties, or whether that contract

contains contractual limitations implied or express is examined in depth. Chapter 1 provides an overview of the

employment relationship with references to its contractual roots. Chapter 2 looks at express written employment

agreements and the advantages, disadvantages and legal effects of written contract provisions in a number of

different areas. Chapter 3 concentrates on the more common oral or implied agreements for employment and the

general issues implicated when an employment relationship is terminated by the employer without the consent

of the employee. This chapter also discusses the public policy implications of such a termination including

what has become known as the Sabine PilotdoctrineinTexas.Infocusingonconstructivedischarge,Chapter 4

recognizesthatsometimeswhethertherehasbeenanemploymentterminationisitselfunclear.

Part II, Pre-Employment Issues, presents those legal matters most often faced at the pre-employment phase

or the application phase of the relationship. Chapter 6 looks at the recruitment, application and interview

process; background reviews, and proper and improper methods of employee selection. Chapter 7 looks at

employer and employee obligations under the various immigration laws.

Parts III and IV cover some of the “nuts and bolts” issues of employment, including wages, hours, overtime

and fair labor standards issues; traditional and modern issues of safety, health and prevention; basic employee

benefit issues and state unemployment compensation issues; as well as employer record keeping obligations and

internalpolicyissues. Chapter9,Wages,HoursandOvertime,setsforth indetailTexasandfederalobligations

on wages and the payment of wages, including minimum pay issues, overtime issues and the many legal

issues of overtime exemption based on wage and job classification. Chapter 10 looks at the important issues

of employee safety and health under the Occupational Safety and HealthAdministration Act and under the

common law duty to provide a safe workplace. Chapter 11 examines the procedures and requirements of Texas

unemployment compensation law and the workings of theTexas WorkplaceCommission. Chapter 14 covers

the emerging issues of arbitration, mandatory or voluntary, as an alternative to civil litigation of employment