Overview and Scope of Treatise

AuthorLaura M. Franze
F-19 Texas employmenT law
ovE rv iE w a nd
Sco PE of trE atiSE
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 par-
ticipant 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 deci-
sion 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 con-
tract. 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 employ-
ment relationship with references to its contractual roots. Chapter 2 looks at express written employment agree-
ments and the advantages, disadvantages and legal effects of written contract provisions in a number of differ-
ent 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 recog-
nizes 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 obliga-

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