CLAIMS OF CONSCIENCE UNDER
SABINE PILOT AND SARBANES-OXLEY
Glickman & Hughes, L.L.P.
909 Fannin Street, Suite 3800
Houston, Texas 77010
Copyright 8 2005
State Bar of Texas
13TH ANNUAL ADVANCED EMPLOYMENT LAW COURSE
January 20-21, 2005
WRONGFUL TERMINATION FOR REFUSING TO COMMIT AN ILLEGAL ACT -THE PUBLIC POLICY TORT IN TEXAS
The Creation and Rationale for this Tort
From 1888 until 1985, almost a hundred years, the courts of Texas allowed employees for an indefinite term to be terminated-at-will and without cause. East Line & R.R.R. Co. v. Scott, 72 Tex. 70, 10 S.W. 99, 102 (1888). The Texas Supreme Court changed that outmoded doctrine and for the first time protected an employee who refused to commit an illegal act for an employer. Sabine Pilot Service, Inc. v. Hauck, 687, S.W.2d 733 (1985) (ASabine Pilot@). In Sabine, a deckhand saw placards posted on the boat which stated it was illegal to pump bilges into the water. When he called the coast guard, they confirmed it was illegal so the deckhand refused to pump bilges into the water. He was fired for his refusal. The Texas Supreme Court unanimously held that his firing was wrongful.
The logic is difficult to fault. Citizens and courts should discourage illegal conduct. If an employer can engage in illegal activity and force its employees to participate in a crime to keep their jobs, the public policy of preventing criminal behavior is undermined. As Justice Kilgarlin stated in his concurring opinion, AAllowing an employer to require an employee to break a law or face termination cannot help but promote a thorough disrespect for the laws and legal institutions of our society.@ Sabine Pilot, 735. Nor should an employee be faced with the wrenching alternative of either committing an illegal act or being fired. One court has ruled that such a practice intolerable in a civilized community. It rewards those who engage in illegal conduct and punishes those who do not. Higginbotham v. Allwaste, Inc., S.W.2d 411, 416 (Houston [14th Dist.] 1994, writ denied). Permitting employees to recover for refusing to commit an illegal act reaffirms that a citizen=s first duty is not to the employer but to the rule of law. To hold otherwise Aturns the employment relationship into a criminal conspiracy.@ See William Holloway & michael Leech,Employment Termination - Rights and Remedies, pp. 149, 150 (2nd Ed. 1993). In short, the courts of Texas no longer permit an employer to retaliate by firing an employee who refuses to participate in an illegal act.
The Elements of the Cause of Action - Summary.
The elements of the cause of action for terminating an employee for refusing to commit an illegal act are set forth in Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733 (1985) . To establish this claim, a plaintiff under Sabine Pilot must prove:
1. that the employee was terminated
2. for the sole reason
3. that the employee refused
4. to commit an unlawful act.
Sabine Pilot, 687 S.W.2d at 735.
Termination of the Employee.