As noted over on, the Fifth Circuit has just certified a question to the Texas Supreme Court about the at-will employment doctrine in Texas.

The case involves former the employees at a DuPont facility in LaPort, Texas who were covered by a collective-bargaining agreement. Their claim is that they were fraudulently induced to give up their employment with DuPont and instead enter employment with “DTI,” a newly formed subsidiary. (The fraud theory appears to be that DuPont knew it was planning to sell DTI but represented the opposite to its employees.)

The panel originally decided 2-1 in favor of DuPont, making an Erie guess that Texas law would bar these claims. It reasoned that the existing contract was not sufficient to remove them from “at will” status under Texas law. Judge Elrod dissented, taking issue with the majority’s analytical framework: “There is no such thing as somewhat at-will, or as the majority puts it ‘sufficiently non-at-will.’ In fact, the majority’s conclusion brings to mind Miracle Max’s diagnosis that Westley was ‘mostly dead.'”

On Friday, the Fifth Circuit withdrew its opinion and issued an order certifying two questions to the Texas Supreme Court:

  1. Under Texas law, may at-will employees bring fraud claims against their employers for loss of their employment?

  2. If the above question is answered in the negative, may employees covered under a 60-day cancellation-upon-notice collective bargaining agreement that limits the employer’s ability to discharge its employees only for just cause, bring Texas fraud claims against their employer based on allegations that the employer fraudulently induced them to terminate their employment?

See: Gary Sawyer, Doug Kempf, Peter Barnaba, Sr., Geoff Rorrev, Tim Gregory, et al. v. E. I. Du Pont de Nemours and Company, No. 12-0626