Everybody knows that your employer has to give you time to go vote, right?  What if your employer doesn’t give you the time to vote, and you take it anyway and are fired because of it?  Is there a private cause of action for wrongful termination?  According to the Dallas Court of Appeals, the answer is "no."

In Martin v. Clinical Pathology Laboratories, Inc., Martin requested permission to leave work early to vote in the general election.  Her employer refused.  Nevetheless, she left work 15 minutes early.  Martin was terminated two days later.  She brought suit against Clinical Pathology for wrongful termination.  The trial judge sustained a special exception to her pleadings on the basis that she had failed to state a viable cause of action.  After she refused to replead, the trial court dismissed her claims.  She appealed.

The court of appeals affirmed.  In its reasoning, the court observed that in Texas an employee may be terminated for good cause, bad cause, or no cause at all.  A valid wrongful termination claim is recognized only if the claim falls within a statutory exception to the employment-at-will doctrine or if the claim falls within the narrow common-law exception recognized in Sabine Pilot Serv. v. Hauck.  The Dallas Court of Appeals observed that the Texas Election Code makes it a Class C misdemeanor for an employer to refuse an employee the right to vote.  However, the court went on to observe that the Election Code contains an exception when the polls are open for two consecutive hours outside of the voter’s working hours.  In this case, Martin’s pleadings did not affirmatively assert that the exceptions did not apply.  [As a practice tip, it appears that the court of appeals impliedly would require that the exception be affirmatively negated].  However, the court went on to conclude that the existence of this statute did not imply an intent on the part of the legislature to create a private claim for wrongful termination and the court declined to recognize such a right–concluding that only the Texas Supreme Court or the legislature could do so.

The court’s opinion also contains a detailed analysis of whether Martin’s filing of a Chapter 13 bankruptcy during the pendency of the appeal caused her to lose standing.  Under the facts before it, the court concluded that Martin retained her standing.  The court’s opinion may be found here.