Author Archives: Logan Howard

What Does it Mean That Texas is an At-Will Employment State?

You may have read it in a job application or had a potential employer tell you that the job is “at-will”. Or you may have had an employer threaten your job and tell you that it is “at-will” or that Texas is a “right to work state”. While these terms may be common in the employment world, it is important to understand what they actually mean. In Texas, an employee may generally be fired for any reason (a good reason, a bad reason, a wrong reason, or no reason). Likewise, an employee may generally choose to quit his or her employment for any reason. However, there are certain limitations to the principle of at-will employment.

First, State and Federal law prohibit discrimination and retaliation in employment

While it is true that Texas is an at-will employment state, employers cannot terminate an employee based on his/her gender, race, age (over the age of 40), national origin, color, or religion. Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964 both prohibit discrimination in employment; which includes terminating an employee for a discriminatory reason. Both of these laws also prohibit employers from terminating an employee in retaliation for the employee’s complaint of discriminatory treatment. That means that an employee cannot be fired because he/she complains to the company about discrimination towards himself/herself or towards another employee. Employers also cannot fire an employee because of his/her participation in an investigation of another employee’s charge of discrimination with the Texas Workforce Commission or Equal Employment Opportunity Commission.

An employment contract may give an employee certain rights to the job

Most employment agreements will specifically state that the job you are accepting is at-will and may be terminated by either party at any time. However, occasionally an employment agreement will provide for the employee to remain employed for a specific period of time (1 year or more), and it will limit the ability of the employee and the employer to terminate that employment relationship early. Sometimes, these agreements will state that the employee may be terminated only for “good cause”, which could include things like a violation of company policy or prolonged performance issues. Other times, the agreement will merely state that a certain amount of notice (30-60-90 days) is required for either party to terminate the relationship. Ultimately, you are entitled to certain rights if you have signed an employment agreement that limits your employer’s ability to fire you. This may include your ability to obtain a severance payment if you are terminated from your job (a) without good cause or (b) without proper notice.

Always consult with an employment lawyer

Just because Texas is an at-will employment state, it does not mean that employees have zero rights. If you are an employee in Texas and believe that you have either been discriminated/retaliated against or fired in violation of your employment agreement, you should always consult with an employment lawyer. An attorney can review the facts to determine if you have a valid claim against your employer and advise you of your legal rights.

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Do Employees Have the Right to an Attorney in a Meeting at Work?

When an employee is called into a meeting with his/her boss or Human Resources, panic will sometimes set in. There may have been certain events that led up to this meeting which indicate to the employee that the meeting is not likely to go well. It could be that the employee

was already accused of some sort of misconduct or,
the employee has been experiencing harassing and discriminatory treatment leading up to the meeting.

Either way, the employee may be wondering what his/her rights are going into this meeting, and whether or not an employee has a right to an attorney during a work meeting.

Generally speaking, an employee cannot bring his/her lawyer to a meeting at work

There is no absolute right to counsel that affords employees the right to have an attorney involved in employment matters. So long as you are an employee in Texas, your employer can require you to attend meetings with whomever they choose. This means that while an employer can choose to allow you to bring a lawyer to a meeting;

you will generally have no right to bring one.
you do not get to dictate to your employer that you will be bringing your attorney to the meeting
you do not get to tell your employer that you will not attend the meeting unless you are allowed to bring your attorney

If you do refuse to attend the meeting, then your employer can (and quite possibly will) discipline you, and it may make it more difficult to pursue a legitimate legal claim.

So what do I do if I am called into a meeting at work?

If you are called into a meeting by your supervisor or HR, then you should most likely attend the meeting. You can request that a third party be present in the meeting to witness everything. This third party could be a co-worker, someone from HR, or someone from management. However, there is nothing that requires an employer to provide a third-party witness in a meeting.

In Texas, individuals have the legal right to record conversations that they are a party to. That means that you cannot be charged criminally for recording a conversation that you are a party to. However, employers may still have policies that prohibit employees from recording any conversations at work. It is important to first refer to your employers policies and procedures (e.g. employee handbook) to see if there is any prohibition of that sort. If not, then you may want to consider recording the meeting to document everything that is said.

If you are called into a meeting by your employer and you believe that they are preparing to terminate your employment or otherwise discriminate against you in some fashion, you may want to first reach out to an employment attorney to discuss your situation. While you generally will have no right to bring an attorney to this meeting, an attorney may be able to provide you with certain advice to better prepare you for the meeting. Additionally, if given enough notice, an attorney may be able to reach out to your employer’s legal counsel prior to the meeting date to present them with certain legal claims.

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How to Find Value of a Complaint of Employment Discrimination

There is no one size fits all resolution for a complaint of employment discrimination or retaliation. The first thing that must be evaluated is what the individual wants as an outcome of the complaint of discrimination. Some employees are most interested in preserving their job, and putting a stop to the discriminatory or harassing behavior. Other employees are more interested in attempting to negotiate a severance and move on from their job because the employment relationship is no longer salvageable. An employee who has been terminated because of a discriminatory reason may want his/her job back.

What does the law allow me to recover?

Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code both limit compensatory damages (e.g. mental anguish, emotional pain, suffering, etc.) to $300,000 for employers with more than 500 employees. The limitations are

$200,000 for employers with 201 to 500 employees
$100,000 for employers with 101 to 200 employees
$50,000 for employers with 15 to 100 employees

Front pay and back pay are not subject to these limitations.

While there are certain limitations placed on the amount of money that you can potentially recover in an employment discrimination claim, negotiations leave open the possibility for both parties to get somewhat creative in terms of the resolution. For example, while employers are typically reluctant to provide a positive reference letter as part of a settlement, employers will oftentimes be willing to agree to include neutral reference language in a settlement agreement. This type of language will typically limit the employer to providing only the following information about a former employee to a potential employer:

dates of employment
positions held
rate of pay

Sometimes, a reference or a neutral reference can be more valuable to an individual than a monetary settlement. There are also very limited circumstances in which a terminated employee (or an employee who resigned due to ongoing harassment) is offered reinstatement to his/her former position.

What factors are considered in determining the value of a claim?

There are a number of factors that play a part in the potential recovery for any given person who is pursuing a complaint of discrimination. Obviously, the factual allegations being made by the employee must be considered. How strong of a claim is it and how seriously does the employer take it? Is there strong evidence that supports the allegations? As with any negotiation, you need two willing participants. So the employer must be willing to discuss the possibility of a resolution.

The employee’s employment history with the company is also likely going to be taken into consideration. This includes how long the employee worked there, disciplinary/performance history, position(s) held, and salary. Employers are generally more willing to offer a more significant monetary settlement to employees who have been with the company for a significant period of time. If the employee had a history of disciplinary issues, the employer is more likely to take a defensive position with respect to the discrimination claim.

I am oftentimes told by a client or a potential client that their employer is doing very well and has huge amounts of money in the bank. The implication is that because the employer has all of this money, they will very willingly part with tens of thousands of dollars in a settlement. While the employer’s bank account may be something that the employer ultimately takes into consideration in determining whether or not they are willing to pay some amount of money to settle a claim, it really has no bearing on the actual value of an employment discrimination claim.

What can I do to optimize my potential settlement recovery?

One of the smartest things that you can do to best position yourself to settle an employment discrimination claim is to retain an employment attorney to represent you. It can be invaluable to have someone in your corner who can take an objective look at your claim and provide you with realistic expectations. Whether you are considering filing a complaint of discrimination, or you have already done so without legal representation, an employment attorney can help you evaluate your claim.

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How are Employees Protected from Retaliation in the Workplace?

Employees in Texas are protected from retaliation for objecting to discrimination in the workplace under both Title VII of the Civil Rights Act of 1964 and the Texas Labor Code. Like complaints of discrimination, if you believe that you are being retaliated against for complaining about discrimination, you must file what is called a Charge of Discrimination with the Equal Employment Opportunity Commission (EEOC) and/or Texas Workforce Commission (TWC).

Recently, the EEOC released its updated “Enforcement Guidance on Retaliation and Related Issues.” This document provides extensive information regarding retaliation claims and the statutes that are enforced by the EEOC. It has also updated the EEOC’s position on a number of more recent legal issues/opinions.

What does it mean to be engaged in ‘Protected Activity’?

Both public and private employers (who have more than 15 employees) in the State of Texas are prohibited from retaliating against an employee who has engaged in what is referred to as ‘protected activity’. To be considered protected activity, the employee must have complained about or opposed a discriminatory practice. This can include

complaining about discrimination to your supervisor or Human Resources department
filing a charge of discrimination with the EEOC or Texas Workforce Commission
participating in an investigation (e.g. acting as a witness) of another employee’s complaints of discrimination.

What actions by an employer constitute retaliation?

There is no exhaustive list of each and every employment action that can be considered retaliatory, but these may include probation, suspension, termination, denial of promotion, denial of job benefits, and a transfer to a different position that either has lower pay or is generally less desirable. Aside from these adverse job-related actions, the retaliatory action could be harassment (verbal or physical behavior) of the employee which is meant to deter the employee from engaging in protected activity.

It is also very important to consider what facts or evidence support the connection between the employee’s protected activity and the adverse employment action that is taken against that employee. One piece of information that may support this connection is the timing of the adverse employment action. The closer in time the adverse employment action is to the protected activity, the easier it is to show the causal connection. Additionally, there may be oral or written statements by the individual recommending the adverse employment action which support this connection. Ultimately, you want to be able to show that the employer’s alleged reason for taking the adverse employment action is not truthful.

What do you do if you are experiencing retaliation in the workplace?

First, gather whatever evidence you may have to support your potential claim of retaliation. If you decide to pursue a claim of retaliation, you will need to file a Charge of Discrimination with the EEOC and TWC. But before filing the Charge, you should always contact an employment lawyer to discuss your legal options. There may be certain actions that an attorney can take to better protect your job (if you are still employed) or better position your legal claim.

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How Much Do You Know About Vacation and Sick Leave?

While many employers choose to offer vacation and/or sick leave to their employees, there is no general requirement that an employer offer vacation or sick leave to its employees under Texas or federal law. However, under certain circumstances, an employer may be required by law to provide an employee with leave due to the employee’s own medical condition or to care for a family member who is suffering from a medical condition. There are also certain legal obligations for employers who do have written vacation and sick leave policies.

If you have recently been terminated, laid off, or resigned, and your employer is refusing to payout your accrued leave, it is important to consult with an employment attorney in your area and read the full article “Vacation and Sick Leave for Employees in Texas.” You may have the right to pursue a breach of contract claim or a wage claim against your employer.

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Is Sexual Harassment in the Workplace Still a Problem in this Day and Age?

The short answer: Yes.

Many people believe that sexual harassment in the workplace is a thing of the past; something that only occurred back in the Mad Men era of yesteryear. But the reality is that sexual harassment in the employment setting is still remarkably prevalent, and may even be more common now in the technology age. Sexual harassment is not limited to male employees harassing female employees; it can certainly go both ways. More recently, same-sex sexual harassment has become a more common complaint, although this may be due to the changes in the interpretation of the employment discrimination laws. While many employers have attempted to implement policies to better educate employees and prevent sexual harassment, the problem certainly persists.

Harassment Claims Against Roger Ailes

One of the most glaring recent examples of the widespread nature of sexual harassment in the workplace is the numerous accusations of sexual harassment that have been made against the now-former CEO of Fox News, Roger Ailes. At this point, numerous women have come forward with various allegations of sexual harassment by Mr. Ailes following a lawsuit that was filed by former Fox News anchor, Gretchen Carlson. Fox News took the appropriate step of removing Mr. Ailes as CEO, and they are now dealing with a massive investigation into what took place, who knew about the harassment, and whether certain actions were taken to cover it up. While it is not all that common for such a high profile case to be so widely publicized, this sort of discriminatory behavior is still occurring all across the country and in all types of jobs.

Another very interesting observation from the sexual harassment allegations at Fox News is the varying responses from political figures and members of the public. As with allegations of sexual assault, there is oftentimes a sort of ‘blame the victim’ mentality. That is why so many victims of sexual harassment are afraid to come forward. Not only are they afraid that their story may not be believed, but in the workplace, they are fearful of retaliation and possibly losing a job.

Donald Trump’s Statements on Sexual Harassment

For example, current Republican Presidential nominee, Donald Trump, recently spoke out in response to Ms. Carlson’s sexual harassment lawsuit. In response to a question being asked about how he would feel if his daughter, Ivanka, dealt with similar issues of sexual harassment in the workplace, Mr. Trump stated to USA Today that he “would like to think she would find another career or find another company if that was the case.” The clear implication from his statement being that it is the victim, and not the harasser, who should have to leave his/her job if they are experiencing sexual harassment. These types of responses to allegations of sexual harassment in the workplace are both demeaning to the victim and tend to aggravate the problem.

So what do you do if you experience sexual harassment in the workplace?

First, you want to make sure that you voice your concerns to your employer.

Send an email to your supervisor (if he/she is not the harasser) or human resources.
You want to make sure that your complaint is documented. Unfortunately, there are not always witnesses or evidence of the harassment (text messages, emails, voice messages, etc.). Do what you can to document the behavior, whether that is taking notes of when things happen or recording sexually harassing comments on your cell phone (in Texas you can legally record a conversation if you are a party to that conversation – you do not have to tell the other person that you are recording it).
If you are not getting an appropriate response from your employer, it may be time to reach out to an employment attorney and discuss your legal options.

Ultimately, if the sexual harassment continues, or if you are retaliated against for making a complaint, you have the legal right to file a Charge of Discrimination with the Texas Workforce Commission and Equal Employment Opportunity Commission.

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