Firing An Employee Who Refuses to Sign Waiver of Compensation In Texas

In Texas Health Enterprises v. Kirkgard, 882 S.W.2d 630 (Tex. App.-Beaumont 1994, writ denied), two employees sued their non-subscriber employer for wrongful termination after they were fired for refusing to sign a waiver of their rights to benefits under the Texas Workers' Compensation Act (TWCA) and to sue at common law. See 882 S.W.2d at 632. In affirming a judgment in favor of the employees, the court found that the waiver violated provisions of the TWCA prohibiting waiver of compensation. See id. at 633 (citing TEX. LAB. CODE ANN. 406.035 (Vernon 1996)). In also rejecting a complaint about a jury instruction, the court stated that "an employment agreement limiting a non-subscribing employer's liability for job-related injuries is void as against public policy." See id. at 634 (citing Hazelwood v. Mandrell Indus., 596 S.W.2d 204 (Tex. Civ. App.-Houston [1st Dist. ] writ ref'd n.r.e.)). In Kirkgard, the court was not addressing an employment agreement and thus, its statement was merely dictum. Section 406.035 states "that an agreement by an employee to waive the employee's right to compensation is void." TEX. LAB. CODE ANN. 406.035. In a case involving a post-injury waiver of an employee's common law right to sue, the Amarillo Court held that this provision does not apply to employees of nonsubscribers. See Martinez v. IBP, Inc., 961 S.W.2d 678, 682-84 (Tex. App.-Amarillo 1998, writ denied).