Myth: An Employer Has to Coach or Warn You Before Putting You on a PIP or Terminating You

Texas law is pretty clear that employee handbooks or company policies regarding performance management and termination do not restraint employers in any way from taking adverse action against employees (i.e. "up to and including termination"). However, there is a common belief that employers have an obligation to warn employees or establish a documented history of performance deficiencies or misconduct before taking adverse action. This is FALSE. 

[A]n application for employment, handbooks, copies of the employer's policies, and other similar documents do not constitute an agreement or contract that limits the employer's right to terminate the employment at will. Day & Zimmermann, Inc. v. Hatridge, 831 S.W.2d 65, 69 (Tex. App.—Texarkana 1992, writ denied). The Texas employment at will doctrine means that absent an express agreement to the contrary, either employer or employee may terminate their relationship at any time for any reason without liability. Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 413 (Tex. App.—Corpus Christi 1988, no writ). Employee handbooks, which are not accompanied by an express agreement dealing with procedures for discharge of employees, do not create contractual rights regarding these procedures. Id.

Consequently, many are surprised when they are issued a final warming or terminated without any semblance of due process. Unless you are a public employee or you have entered into an express contract limiting the grounds upon which an employer may terminate you, you are not entitled to due process after your employer has decided to terminate or PIP you. While the at-will doctrine grants employers wide discretion to make personnel decisions, employers are prohibited from making decisions based on an employee's membership in a protected class. However, employees cannot solely rely upon their membership in protected classes to establish discriminatory animus. Simply because you were terminated and you are a member of a minority group does not mean that you were terminated because of your membership in the minority group. 

The bottom line is this: If you are an at-will employee, do not fall for the false sense of security an employee handbook or policy may seem to provide. The promise of lifetime employment, or the promise of permanent employment, or the promise of employment until the age of 65, is that type of employment agreement or contract that must be reduced to writing to be enforceable. Benoit v. Polysar Gulf Coast, Inc., 728 S.W.2d 403, 407 (Tex. App.—Beaumont 1987, writ ref'd n.r.e.). When an employer wants to be done with you, it generally can be done with you without any sort of point, strike, or performance management system – so long as the basis is one that is legally non-discriminatory. Bryant v. Compass Grp. USA, Inc., 413 F.3d 471, 478 (5th Cir. 2005).

If you believe you have been subjected to adverse action by your employer on unlawfully discriminatory grounds, please schedule a consultation today. Consultations are completely confidential. Do not rely on this post as legal advice. This post does not create an attorney-client relationship between the firm and the reader. Do not act in reliance on the contents of this post without seeking the advice of counsel.