Employers may not force employees to perform illegal acts. Thus, if you are fired in Texas for refusing to perform an illegal act, you have the right to sue your employer to recover your damages. Unfortunately, a recent Texas Supreme Court case has substantially weakened that right in the context of a case involving a dangerous 18-wheeler. The result not only harms Texas employees, it harms Texas drivers by making trucking companies more likely to fire drivers who refuse to drive dangerous loads, thereby exposing the driving public to the risk of serious injury or death.
In Safeshred, Inc. v. Martinez, NO. 10-0426 (April 20, 2012), the Texas Supreme Court considered whether and how a terminated employee can recover punitive damages when he is fired for refusing to perform an illegal act. In that case, Mr. Martinez worked for Safeshred as a commercial truck driver, hauling loads of cargo between Dallas, San Antonio, Houston, and Austin. On one trip, Martinez was pulled over and cited by a DPS officer for numerous violations of state and federal regulations. Among the citations was one for improperly secured cargo, due in part to substantial cuts in straps used to secure the load to the truck bed. See 49 C.F.R. § 393.106(b) (2011) (requiring proper cargo placement and restraint to protect against shifting and falling cargo). Martinez showed the citation and described the problems to Safeshred management. While Safeshred apparently corrected some of the defects on the truck (like missing and expired tags), Martinez’s concerns about the load’s legality persisted. The cut straps that had prompted a citation by the DPS remained, the load was unsafely stacked higher than the top of the truck’s cab, and there was no dunnage (packing material) between the two main rows of the steel shelving. Martinez complied with Safeshred’s order to drive the truck anyway. Then, a few days later, Safeshred again asked Martinez to drive an improperly secured load. Martinez began to drive the truck, but turned around after a few miles when he felt the cargo shifting and feared for his safety. After again urging his concerns over the legality of the load all the way up Safeshred’s chain of command, he was told to either drive the truck or go home. He went home and was fired.
Martinez brought a wrongful termination claim against Safeshred seeking lost wages, mental anguish damages, and exemplary damages. The jury awarded $7,569.18 in lost wages, $10,000 in mental anguish damages, and $250,000 in exemplary damages, which the trial judge reduced to $200,000 to comply with the statutory cap in section 41.008 of the Texas Civil Practice and Remedies Code. The court of appeals found the evidence factually insufficient to support the mental anguish damages, but affirmed the other two awards. Now, the Texas Supreme Court has taken away the punitive damages award. Thus, despite a jury, a court of appeals and the Texas Supreme Court all apparently agreeing that Mr. Martinez was indeed wrongfully terminated because he refused to haul a dangerous, illegally loaded cargo, the commercial trucking company’s liability for its misconduct was ultimately a mere $7,500.
The Supreme Court first held that Martinez’s claim was not contractual in nature, but sounded in tort, providing a remedy when an employee refuses to comply with an employer’s directive to violate the law and is subsequently fired for that refusal.
Thus, a Sabine Pilot plaintiff may potentially recover any reasonable tort damages, including punitive damages. However, the court held that Mr. Martinez failed to prove the sort of “malice” necessary to justify punitive damages. Malice, in this context, refers to an act or failure to act that involves an “extreme degree of risk, considering the probability and magnitude of the potential harm to others.”
Mr. Martinez argued that malice could be shown through Safeshred’s indifference to the potential harm to Martinez (and to the public at large) had he gone through with the illegal acts. The Supreme Court agreed with Safeshred that the “harm” in question should be limited to the firing itself. According to the court, malice might exist “‘where the employer circulates false or malicious rumors about the employee before or after the discharge . . . or actively interferes with the employee’s ability to find other employment.’” On the other hand, according to the Texas Supreme Court, the fact that an employee was ordered to do something not only illegal but very dangerous to the employee (and to the rest of us driving on Texas highways) is irrelevant. Thus, according to the court, “even if there was legally sufficient evidence that Safeshred was grossly negligent in ordering Martinez to drive the illegal truck loads, that gross negligence would not support punitive damages in this action because it was not relevant to the actionable firing itself.”
The full opinion can read here: