Skip to Main Content
Quick and Easy Guide to Labor & Employment Law: Texas

This state-specific guide covers labor and employment case law, statutes, rules, and regulations that HR professionals and clients often encounter or have questions about in Texas.

At-Will Employment

The employer/employee relationship is governed by the at-will employment doctrine. That means that either party may terminate the relationship at any time, with or without cause, and with or without notice. The employment at-will doctrine may be narrowed and restricted if an employee is terminated for his or her refusal to perform an act that would violate a criminal statute and for which there is a criminal penalty. Further, absent a disclaimer to the contrary, the terms and conditions of an employer's Employment Manual or Handbook may also narrow and restrict the employment at-will doctrine. Goodyear Tire and Rubber Co. v. Portilla, 879 S.W.2d 47 (Tex. 1994).

Right to Work Laws

An employer cannot deny nor otherwise condition an employee's right to work upon that employee's membership or non-membership in any labor union or labor organization. Further, an employer cannot deny nor otherwise interfere with an employee's right to organize, or to bargain collectively, by and through a labor organization. (Tex. Labor Code §§ 101.052-53)

Alternatively, a person may by peaceful and lawful means induce or attempt to induce another to enter or refuse to enter a particular employment or to quit a particular employment in which the other person is then engaged. (Tex. Labor Code § 101.002(a)) A contract that permits or requires the retention of part of an employee's compensation to pay union dues or assessments is void unless the employee provides written consent. (Id. §101.004)

Immigration Verification

Texas places no additional employment verification procedures on private employers beyond Federal I-9 compliance. 40 Tex. Admin. Code § 41.231. Effective September 1, 2015, there is a requirement to use E-Verify for public employers such as state agencies and institutions of higher education under Texas state laws. 40 Tex. Admin. Code § 843.3

Drug Testing

The State of Texas does not prohibit the drug testing of employees and has not codified any specific laws addressing the same. Texas courts have upheld employer-mandated drug testing, including the use of random testing; therefore, employers are not expressly prohibited from discharging at-will employees who test positive on random drug tests. Jennings v. Minco Tech. Labs, Inc., 765 S.W.2d 497, 502 (Tex. App.—Austin 1989, writ denied). Under Texas law, employers do not have a legal duty to evaluate employee's explanation for positive drug test result, and thus could not be held negligent for failing to investigate an employee's explanation for a positive test. Quintanilla v. K-Bin, Inc., 993 F. Supp. 560 (S.D. Tex. 1998). However, employers should cautiously approach drug testing as it can present substantial hurdles.

Jury Duty Leave

It is unlawful for an employer to terminate or take any adverse action against an employee because the employee is on jury duty, including persuading, attempting to persuade a juror to avoid jury service, intimidating, threatening in that respect or otherwise subjecting an employee to adverse employment action as a result of jury service if the employee provides reasonable notice of his or her absence. Tex. Civ. Prac. & Rem. Code § 122.001(a). The State of Texas does not require paid leave for jury duty. (Tex. Civ. Prac. & Rem. Code §§ 122.001, 122.002) An employee who is injured because of a violation of this chapter is entitled to reinstatement, reasonable attorney's fees and to damages not less than one year's compensation nor more than an amount equal to five year's compensation at the rate at which the employee was compensated at the time of jury service. (Tex. Civ. Prac. & Rem. Code § 122.002(a), (b))

Similarly, an employer may not discharge, discipline or penalize an employee because the employee complies with a valid subpoena to appear in a civil, criminal, legislative or administrative proceeding. (Tex. Labor Code § 52.051(a)) The employer may be found in contempt by the court issuing the subpoena. (Id. § 52.051(b)) An employee discharged in violation of this section is entitled to reinstatement, may recover damages and reasonable attorney's fees. (Id. § 52.051(d), (e))

Voting Leave

The State of Texas requires employers to allow employees to take paid time off for voting on election days, unless the employee has at least two consecutive hours to vote outside of the employee's working hours. (Tex. Elec. Code §§ 276.001, 276.004)

Parental Leave

The State of Texas does not require an employer to offer to its employees parental leave and does not have a state-law equivalent to the FMLA. For state employees, an employee who has been employed for fewer than 12 months or who worked fewer than 1,250 hours during the 12-month period preceding the beginning of leave is eligible to take a parental leave of absence not to exceed 12 weeks. This authorized leave begins on the date of, the birth of a natural child of the employee or the adoption by or foster care placement with the employee of a child younger than three years of age. Tex. Gov't Code § 661.913.

Other Leave

The State of Texas does not require employers to offer to employees paid vacation or sick leave, although it is subject to the federal Family Medical Leave Act (FMLA) but has no state-law equivalent. However, certain cities such as Austin, Dallas and San Antonio have local ordinances enjoined by court orders which mandate paid or earned sick time; employers should check local laws concerning sick leave.

Smoking Laws

The State of Texas does not specifically regulate smoking in the workplace. Notably, however, the State of Texas has criminalized smoking in certain locations, including enclosed movie theaters and public schools. (Tex. Pen. Code § 48.01) Additionally, certain cities have ordinances banning smoking in certain areas including public workplaces, restaurants and bars. Employers should check local laws concerning smoking.

Break Time to Express Milk/Breastfeeding

The State of Texas allows a mother to breastfeed her baby in any location in which the mother is authorized to be. (Tex. Health & Safety Code § 165.002) Public employers must develop a written policy on the expression of breast milk by employees which shall support the practice of expressing milk and make reasonable accommodations for the needs of employees who express milk. Tex. Gov't Code § 619.003 Further, if a business develops a policy supporting the practice of worksite breastfeeding, then the business may use the designation "mother-friendly" in its promotional materials. (Tex. Health & Safety Code § 165.003)

Meal Breaks

The State of Texas does not require mandatory meal breaks or rest periods. Individual cities within Texas, however, may have ordinances requiring breaks during the workday.

Minimum Wage

Subject to certain exceptions, the Texas Minimum Wage Act (Tex. Labor Code § 62.001, et seq.) mandates a minimum wage equivalent to the minimum wage set by federal law. Employers must still comply with federal wage laws and regulations. For purposes of compliance with the Fair Labor Standards Act (FLSA), the minimum wage is not less than $7.25 per hour. President Biden has issued an Executive Order that, starting January 30, 2022, federal contractors must pay a $15 minimum wage to workers who are working on federal contracts.  

Texas law contains special minimum wage restrictions for certain employees, such as service employees who receive tips. Tex. Lab. Code § 62.052.

An employee who is not paid wages as prescribed by this chapter may file a wage claim with the Texas Workforce Commission and not later than 180 days after the date the wages became due as payment. (Id. § 61.051)

Overtime pay standards in Texas follow those set forth in the FLSA. Generally, if an employee works more than 40 hours, he or she must be compensated at a rate no less than one and one-half times the regular rate of pay at which he or she is employed. Tex. Gov't Code § 659.015.

Final Payments

When an employee must receive his or her final payment is determined by the circumstances under which the employee left. If an employee is discharged or otherwise involuntarily separated, his or her final payment must be made within six calendar days of discharge. (Tex. Labor Code 61.014(a)) If the employee quits or otherwise leaves voluntarily, his or her final payment must be made on the next regularly-scheduled payday following the effective date of separation. (Id. § 61.014(b))

Unemployment Insurance

Unemployment insurance benefits provide income to individuals who have lost work through no fault of their own. The benefits are intended to partially offset the loss of wages while an unemployed worker searches for suitable work, or until an employer can recall the employee to work. Nothing is deducted from the employee's wages to pay for this coverage. The Texas Unemployment Compensation Act is found at Title 4A of the Texas Labor Code. Unemployment benefits are administered by the Texas Workforce Commission and additional information regarding the benefits may be accessed at www.twc.state.tx.us.

The Texas Supreme Court held that a person may simultaneously receive leave and other benefits under the Family and Medical Leave Act and unemployment benefits under the Texas Labor Code. Texas Workforce Comm'n v. Wichita Cty., 548 S.W.3d 489, 491 (Tex. 2018).

Workers' Compensation

Workers' compensation insurance may be purchased by employers in Texas with five or more employees. If obtained, the coverage is controlled by and subject to the Texas Workers' Compensation Act, which is found at Title 5A of the Texas Labor Code. Tex. Labor Code § 401.001, et seq. governs the Workers' Health and Safety, and § 406.001, et seq. governs Workers' Compensation Insurance Coverage.

Employees who suffer injuries and/or occupational diseases arising out of and in the course of their employment may be eligible to receive several types of benefits under the Act. Under the Act, a workplace injury must be immediately reported to the employer; failing to timely report an injury may result in a denial of benefits. Also, it is unlawful to discriminate against an employee because she or he has filed a workers' compensation claim or testified in a proceeding under the Act. (Tex. Labor Code § 451.001)

The Act is administered by the Division of Workers Health & Safety of the Texas Workers' Compensation Commission and additional information regarding the Act may be accessed at www.tdi.texas.gov/wc/dwc.

Child Labor/Minimum Age

Subject to certain exceptions, the minimum age of employment in Texas is 14. Tex. Labor Code § 51.011. A child who is 14 or 15 years old may not work more than eight hours in one day or 48 hours in one week. Id. § 51.013. There are also certain hour restrictions for children who attend public or private school. Id. § 51.013(b).

The exceptions are regulated by the Texas Workforce Commission. The Commission is authorized to, during working hours, inspect a place where there is good reason to believe that a child is employed or has been employed within the last two years, and collect information concerning the employment of a child who works or has worked at that place. Tex. Labor Code. § 51.021. The Commission may require reports, conduct investigations and take other action it considers necessary to implement this chapter. Id. § 51.024(a).

Gun Laws

A public or private employer may not prohibit an employee who holds a license to carry a handgun, who otherwise lawfully possesses a firearm, or who lawfully possesses ammunition from transporting or storing a firearm or ammunition the employee is authorized by law to possess in a locked, privately owned motor vehicle in a parking lot, parking garage or other parking area the employer provides for employees. (Tex. Labor Code § 52.061) Section 52.061 does not apply to: (1) areas where carrying or otherwise possessing a firearm or ammunition is prohibited by state or federal law, (2) a vehicle owned or leased by a public or private employer and used by the employee in the course and scope of the employee's employment (unless required to do so in the official discharge of the employee's duties), (3) a school district, charter school, private school, (4) property owned or controlled by one subject to a valid, unexpired oil, gas or other mineral lease, and (5) property owned or leased by a chemical manufacturer or oil or gas refiner. (Tex. Labor Code § 52.062(a))

An employer may also prohibit an employee from such carrying or possession "on the premises of the employer's business" as defined by Tex. Pen. Code § 46.03(c) of the penal code as building or portion of a building, not to include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage or other parking area. (Tex. Labor Code § 52.062(b).) Absent gross negligence, a private or public employer is immune from civil liability for personal injury, death, property damage or any other damages resulting or arising out of an occurrence involving a firearm or ammunition that the employer is required to allow on the employer's property under this subchapter. (Tex. Labor Code § 52.063(a))

Additional Laws & Regulations

Texas Commission on Human Rights Act.

The Act, which may be found at Tex. Labor Code § 21.001, et seq., prohibits work-place discrimination because of race, color, disability, religion, sex (including pregnancy or a related medical condition), national origin, age and genetic information. The Act also prohibits retaliation against an individual who engages in protected activity under the Act. The Texas Workforce Commission's Civil Rights Division regulates and enforces the Act, much like the Equal Employment Opportunity Commission regulates and enforces federal discrimination laws. Further information regarding the Texas Workforce Commission's Civil Rights Division may be accessed at www.twc.state.tx.us/customers/jsemp/employee-rights-laws.html.

Voluntary Veteran's Preference Employment Policy.

A private employer may adopt a policy that gives preferences in employment decisions regarding hiring, promotion or retention to a veteran over another qualified applicant or employee. The policy must be in writing and must be applied reasonably and in good faith. The employer may require appropriate documentation from a veteran for him or her to be eligible for the preference.  Granting a preference does not violate Chapter 21, which is the Texas Commission on Human Rights Act. (Tex. Labor Code §§ 23.001-23.003)

Retail Employer.

A retail employer may not require an employee to work seven consecutive days in a business that sells merchandise at retail. (Tex. Labor Code § 52.001(a)) The employer may not deny an employee at least one period of 24 consecutive hours of time off for rest or worship in each seven-day period. (Id. § 52.001(b)) The employer "shall accommodate the religious beliefs and practices of an employee unless the employer can demonstrate that to do so would constitute an undue hardship on the conduct of the employer's business." (Id. § 52.001(c)) The employer "may not require an employee to work" during a time the employee requests to be off to attend one regular worship service a week. (Id.)

Disclosure of Employee Information and Blacklisting.

An employer cannot blacklist or cause an employee to be blacklisted or conspire to prevent an employee from procuring employment. (Tex. Labor Code § 52.031) A corporation may, however, provide a written truthful statement of the reason of discharge. (Id. § 52.031(d)) The statement may not be used as a cause of action for a civil or criminal action for libel against the person who furnishes the statement. (Id.) Similarly, it is the intent of the legislature that an employer who makes a disclosure based on information obtained by that employer that any employer would reasonably believe to be true should be immune from civil liability for that disclosure. (Tex. Labor Code § 103.001) Therefore, an employer may disclose information about a current or former employee on the request of the employee or the prospective employer. (Id. § 103.003(a)) An employer may not disclose information about a licensed nurse or licensed vocational nurse that relates to conduct protected by Section 301. (Id. §103.003(b))

Medical Marijuana.

Texas law authorizes the use of medical marijuana. Tex. Health & Safety §§ 487.001-487.201; 37 Tex. Admin. Code §§ 12.1-12.61. However, Texas employers are not required to accommodate on-site medical marijuana use and may establish drug-free work policies. Employers can adopt a policy prohibiting the employment of an individual who currently uses or possesses a controlled substance, including marijuana, other than the use or possession of a drug taken under the supervision of a licensed health care professional or any other use or possession authorized by the Controlled Substances Act or any other federal or state law. Tex. Labor Code § 21.120.

Polygraph Testing.

Federal law significantly limits the use of polygraph testing by employers. Although there is an exception of polygraph testing involving peace officers, there is no state statutory limit on polygraph testing. Tex. Gov't Code § 614.063. Notwithstanding the exceptions, a peace officer may not be suspended, discharged or subjected to any other form of employment discrimination by the organization employing or appointing the peace officer because the peace officer refuses to submit to a polygraph examination. Tex. Gov't Code § 614.063(a).

Families First Coronavirus Response Act (FFCRA):

Signed into law on March 14 and effective April 1, 2020, the FFCRA amends the Family and Medical Leave Act (FMLA) to provide paid emergency leave for eligible employees to care for a child due to school or daycare closings and would require covered employers to provide up to 80 hours of paid sick leave to employees in need of such leave due to the coronavirus pandemic. The Act also provides reimbursable tax credits to covered employers for the costs associated with providing this paid leave and sick time. FAMILIES FIRST CORONAVIRUS RESPONSE ACT, PL 116-127, March 18, 2020, 134 Stat 178. Because information is changing rapidly, we invite you to access all of Baker Donelson's latest updates surrounding the COVID-19 pandemic on our Coronavirus page, which includes links to all of our alerts and webinars where you can find detailed information related to these new laws. Our L&E-specific COVID-related alerts, including those about the FFCRA, are here. Our L&E-specific COVID-related webinars are here.

CARES Act:

Signed into law on March 27, 2020, the CARES Act contains a number of provisions affecting employers and employees. Because information is changing rapidly, we invite you to access all of Baker Donelson's latest updates surrounding the COVID-19 pandemic on our Coronavirus page, which includes links to all of our alerts and webinars. Our L&E-specific COVID-related alerts are here. Our L&E-specific COVID-related webinars are here.

Have Questions?
Let's Talk!

Click the button above to reach out to a
Baker Donelson L&E Professional.

Disclaimer: These materials do not constitute
legal advice and should not be substituted
for the advice of legal counsel.

Guide last updated July 2021.

Email Disclaimer

NOTICE: The mailing of this email is not intended to create, and receipt of it does not constitute an attorney-client relationship. Anything that you send to anyone at our Firm will not be confidential or privileged unless we have agreed to represent you. If you send this email, you confirm that you have read and understand this notice.
Cancel Accept