ethical behavior in the workplace

I’ve Been Instructed by my Boss to do Something Illegal. What are my Rights?

First, you should always be very careful if you have been instructed by someone in your company to do something that is illegal.  If you follow through on performing the illegal act, there is the possibility that you could personally suffer the criminal consequences.  Ultimately, you really have two options:

  1. you can follow the order and commit an illegal act or,
  2. you can refuse to perform the illegal act and risk being fired.

Neither of these may seem like very good options, but you should never agree to do something criminal just because you are instructed to.  When in doubt, you can always reach out to an employment lawyer in your area to discuss your legal rights and options.

Texas Law for Refusing Illegal Act

While Texas is an at-will employment state, the Texas Supreme Court has created a public policy exception to this rule.  In Sabine Pilot Service, Inc. v. Hauck, the Texas Supreme Court found that an employee cannot be fired for refusing to perform an illegal act.  In the Sabine Pilot case, the plaintiff, a deckhand, was fired after refusing to illegally pump boat bilges into the water.  The Court found that the employee could not be fired because he refused to commit the illegal act.  However, this exception to the at-will doctrine is limited to situations in which the employee can show that he/she was terminated based on a refusal to commit an illegal act, and that refusal was the sole reason that he/she was terminated.  If the employer can put forth evidence of some other legitimate reason for termination, the Sabine Pilot claim may fail.

What steps do I take if I am asked to do something illegal?

If you are instructed to do something illegal, you should first refuse. 

  • It is best to have documentation of the request to perform the illegal act and your refusal to perform the illegal act. 
  • This documentation can be in the form of an email to your supervisor or HR, a handwritten or typewritten letter/memo to your supervisor or HR, or an audio recording of the conversation. 
  • It is best to maintain a copy of the documentation for yourself should anything happen to your employment situation.

After refusing to perform the illegal act and documenting your refusal, your next action will likely depend upon your employer’s response to your refusal.  If your employer does nothing to discipline or otherwise retaliate against you, then it may not be necessary for you to do anything from an employment law standpoint. 

However, if someone else at the company moves forward with committing the illegal act, you may choose to report the illegal act to the appropriate governmental entity (e.g. OSHA, DOJ, or DOL). If you were fired for refusing to do something illegal, or even if your employer threatens you with disciplinary action or termination, you should immediately contact an employment lawyer to discuss pursuing legal action.

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