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Can you sue your employer for refusing to do an illegal act even if there is a specific anti-retaliation federal statute? The answer seems to be yes. A good day for truck drivers in Texas.

Written by Mr. Roger Davie on Wednesday, 30 Nov 2016.

In Texas it is illegal to fire someone who refuses to do an illegal act.  However, some actions an employee refuses to commit are prohibited by federal laws that have their own anti-retaliation protections. Some employers have tried to keep employees from suing for refusing to do an illegal act by claiming that the employee must sue under the anti-retaliation act of the Federal Statute instead of the Texas general cause of action of retaliation for refusal to do an illegal act.  You might be asking yourself, why does it matter? There are many reasons you might want to sue under the Texas cause of action, such as a better more sympathetic jurisdiction of a State Court as opposed to a federal court which tend to be harsher towards fire and injured workers and more employer friendly at the cost of working people. So the question has been raised if the general Texas law I claim has been preempted by federal law? Not always. It depends in part on the text of the federal law. In Dodds v. Terracon Consultants, Inc., 2015 U.S. Dist. LEXIS 60917 (S.D. Tex. 2015), the employee asserted a Texas refusal to do an illegal act claim alleging the employer fired him because he refused to violate certain Department of Transportation regulations. A federal statute provides a specific remedy for retaliatory discharge for a refusal to violate the same DOT rules. See 49 U.S.C. § 31105.(Under the federal STAA act a truck driver can make an administrative claim for being fired for refusal to violate DOT regulations) The employer moved to dismiss the truck drivers claim based in part on federal preemption, but the district court denied the motion. The statute that provided a federal remedy also provides that “Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement.” 49 U.S.C. § 31105(g). The Court went on to note that the Texas Supreme Court’s decision in Safeshred, Inc. v. Martinez, 365 S.W.3d 655 (Tex. 2012), which involved an employee’s Texas based claim of being fired for refusal to do an illegal act claim based on a refusal to violate the same federal  DOT statute, implied that federal law does not preempt such a claim.

In many of the Federal anti-retaliation statutes there are limits on damages, while the state cause of action has no specific limits on damages.  

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