Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

Texas employees are ineligible for unemployment benefits if the are terminated from employment for "misconduct connected with the work."  Misconduct connected with the work includes "mismanagement of a position of employment by action or inaction, neglect that jeopardizes the life or property of another, intentional wrongdoing or malfeasance, intentional violation of a law, or violation of a policy or rule adopted to ensure the orderly work and the safety of employees."  

A frequently litigated issues is whether termination due to excessive absences or tardiness constitutes misconduct connected with the work.  In the recent opinion of Murray v. Texas Workforce Commission, the Dallas Court of Appeals confirms that termination due to violations of employer's written attendance or tardiness policy constitutes misconduct connected with the work rendering the employee ineligible for unemployment benefits.

This is a useful case for employers to cite to hearing officers and examiners in unemployment compensation hearings when the employee has been terminated pursuant to a written time and attendance policy.  Timely and successful challengers to claims for unemployment compensation is one way an employer can keep its unemployment tax in check.  (See post, post).

 You can download the full opinion of Murray v. Texas Workforce Commission here.

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Earlier this week the Dallas Court of Appeals rejected an employee's attempt to create a new wrongful termination cause of action.  In Martin v. Clinical Pathology Lab., Joyce Martin sued her employer for terminating her employment after she requested time off to vote in the November 2008 General Election.  According to her petition, Martin alleged that she:

[W]as a loyal and competent employee of Defendant for three (3) years. On November 4, 2008, Plaintiff requested permission to go vote in the general election so she could cast her vote for the President of the United States and other offices. Defendant refused. Plaintiff left work fifteen minutes early (at 5:15 p.m[.] ) to go vote for change in this country before the polls closed at 7:00 p.m. On November 6, 2008, Defendant terminated Plaintiff.

The question presented in the appeal was "whether an at-will employee who leaves work early to vote in an election and who is subsequently terminated has a private cause of action for wrongful termination."  In keeping with the general rule in Texas that common law exceptions to the employment at-will doctrine should be made by the Supreme Court of Texas, and not the intermediate appellate courts, the Dallas Court of Appeal refused to recognize this new wrongful termination cause of action.

You can download a full copy of the opinion here.

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It is pretty difficult for a party to get an adverse arbitration award reversed or vacated.  A recent Dallas Court of Appeals decision shows the rare instance were such a reversal occurred.  In Alim v. KBR (Kellogg, Brown & Root) --Halliburton, the Dallas court held that an arbitrator's failure to disclose, in an employment discrimination, breach of contract and retaliation case, that he had served as an arbitrator in a prior case involving KBR's party representative and a related company established facts that might create a reasonable impression of the arbitrator's partiality.  Consequently, the court vacated the adverse arbitration award and remanded for a new arbitration proceeding.  You can access the court's opinion here.

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I've previously written about the specific requirements that must be included in a covenant not to compete with a licensed physician to make the restrictive covenant enforceable.  The Dallas Court of Appeals recently affirmed a trial court's decision that a noncompetition agreement between a surgical practice and several limited-partner physicians was unenforceable because the agreement lacked one of the statutorily required provisions.  You can access the Court's opinion in Greenville Surgery Center Ltd. v. Beebe here.  In short, the noncompete lacked the buy-out clause required by the statute.  That defect alone was sufficient to render the noncompetition obligation unenforceable.

Beebe should remind Texas employers that when drafting noncompetition agreements, it is important to have a knowledgeable, Texas attorney review the agreement before having employees or partners sign it.

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