Category Archives: Employment Discrimination

Blowing-The-Whistle-in-texas

Who is Considered a ‘Whistleblower’ in Texas?

With Texas being an at-will employment state, there are limited legal protections for employees.  At-will employment essentially means that an employee can be fired for any reason (good or bad) or no reason, so long as the employee is not fired for a reason that violates a state or federal statute.  One state statute that provides certain protections to public employees in Texas is the Texas Whistleblower Act, Chapter 554 of the Texas Government Code.   

The Texas Whistleblower Act only applies to employees of state and local governmental entities in Texas.  The Act specifically protects a public employee who has reported in good faith what he/she believes to be a violation of federal or state law, a local government ordinance, or a rule adopted under a law or an ordinance.  Generally, it does not provide protections for reporting violations of an agency’s employee handbook or personnel policies. 

What is considered protected activity?

To be considered protected activity, the violation of federal or state law must be made to an “appropriate law enforcement authority.”  This is where the Act gets a little bit more complicated and limited in its application in the real world.  An appropriate law enforcement authority is defined as “a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

  1. Regulate under or enforce the law alleged to be violated in the report
  2. Investigate or prosecute a violation of criminal law.

So what does that mean in Layman’s terms?  Unfortunately, because of the current state of the law, it is not always clear what that means.  In some situations, the appropriate law enforcement authority may be the Texas Attorney General’s Office.  In others, it could be the United States Department of Justice.  It could also be a report made to the particular state agency that is tasked with regulating or investigating violations of the law in question.

So am I protected if I make a report to my supervisor or human resources?

One of the biggest issues with the Texas Whistleblower Act is what happens when an employee reports a violation of state or federal law to his/her supervisor or HR.  Generally, an employee’s report to his/her supervisor or HR is not going to be considered a report to an appropriate law enforcement authority.  The unfortunate reality is that a significant number of employees who experience retaliation have only reported a violation of law internally.  Under the Texas Whistleblower Act, these types of reports likely provide no protection to the employee. 

Finally, in order for there to be a retaliation claim:

  • The employee who reports the violation of law must have been suspended, terminated, or otherwise adversely affected by a personnel action for having reported the violation. 
  • If the public employee is suspended, terminated, or adversely affected, he or she must first file a grievance or appeal with the employer within 90 days of the violation (if the employer has a grievance policy or appeal procedure). 
  • If the grievance does not resolve the employee’s complaint, the public employee must file a lawsuit within 90 days of the violation (not including the time spent in the employer’s grievance/appeal procedure).

As with any potential legal claim, it is always important to speak with an employment attorney if you believe that you may have been retaliated against for reporting a violation of law.  Due to the small window of time that one has to pursue a whistleblower claim in Texas, as well as the complexities of the law, an attorney can help ensure that your rights are protected.   talk-to-employment-attorney

Did you find this content helpful? Share it...
employment-lawyer

How to Pick the Employment Discrimination Attorney who is Right for You

When you pick someone to represent you in anything, you want to make sure that he/she is someone you trust and respect.  Choosing an attorney to represent you in an employment discrimination claim should be no different.  The attorney-client relationship that is formed in an employment discrimination case can be a very personal one.  There are oftentimes private details that must be shared, and you need to be comfortable speaking about those details with your attorney.  You also want an attorney who has experience representing individuals in claims of discrimination before the Texas Workforce Commission and Equal Employment Opportunity Commission, as well as in filing discrimination lawsuits in State and Federal Court. 

What should I look out for when talking to an employment discrimination attorney?

In addition to the obvious emotional aspect of an employment discrimination claim, you also want an attorney who believes in your claim.  Now, this does not mean that you should expect to walk into an attorney’s office and have the attorney tell you that he/she can guarantee you a certain result or some specific amount of money.  When an employment discrimination attorney tells you in your first meeting that he/she will get an exact amount of cash in your pocket at the end of the process, you should probably run for the door.  There are far too many variables to take into account in evaluating a claim, and it is impossible to know how a case is going to turn out before it even begins.  However, an experienced attorney may be able to provide you with a range of possible damages and what types of monetary settlements he/she has seen in similar types of cases. 

Pick the attorney you think is right for YOU!

Employment discrimination claims are often brought after an employee has been fired from his/her job.  It can be a very emotional time.  You want to make sure that you are picking an attorney who you feel can best serve you and your claim.  You may decide that you like the attorney’s game plan, you may have been referred to the attorney by a friend or a colleague, or you may just like the attorney’s personality or demeanor.  At the end of the day, you need to choose the attorney who you think will have your best interests at heart. 

If you are looking for an employment discrimination attorney in the Central Texas area, you can always contact the Lawyer Referral Service of Central Texas or the State Bar of Texas Lawyer Referral & Information Service.

Did you find this content helpful? Share it...
sexual-harassment

What Constitutes Harassment in the Workplace?

State and Federal law prohibit harassment in the workplace when the harassment is based on an employee’s protected characteristics or the exercise of certain legal rights. Protected characteristics include gender/sex, race, color, age (over 40), national origin, disability, and religion. Harassment is also prohibited when an employee exercises his/her legal rights, including:

If you believe that you are being subjected to harassment at work based on one of the above reasons, then it is important to speak with an employment attorney who can both advise you of your legal rights and help shield you from continued harassment.

Harassment can come from co-workers, supervisors, management, or even a non-employee (e.g. customer or vendor). It can include unwelcome touching, inappropriate jokes, slurs, name-calling, or other offensive conduct. It can also include behavior that affects the employee’s terms or conditions of employment, such as schedules, pay, transfers, or changes in job duties or position.

Can I sue my employer for harassment?

Ultimately yes, but there are steps that must first be taken before you have the legal right to file a lawsuit. First, as outlined above, there is no legal claim for “harassment” at work if it is not based on a protected characteristic or the exercise of an employee’s various legal rights. For example, if a supervisor is hostile (e.g. yelling, cursing, demanding, etc.) towards all employees without regard to the employee’s protected characteristics, then there is no legal claim for harassment. The supervisor’s hostility/harassment must be directed towards employees of a particular group for there to be a potential claim of harassment.

If an employee is being harassed because of his/her protected characteristic(s), then the employee has the right to file what is called a Charge of Discrimination with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC). There are two main scenarios when an employee can and should file a complaint with the TWC and EEOC. The first occurs when the harassment has become so severe and pervasive that it has created what is referred to as a hostile work environment. This means that a reasonable person would find the harassment to be intimidating, threatening, and abusive. The other scenario occurs when the harassment has become a condition of continued employment. This is also known as quid pro quo harassment, and one of the most common examples is when a supervisor is sexually harassing a subordinate and making the employee’s job contingent upon his/her acceptance of the sexual advances or other sexual harassment.

Am I protected from retaliation if I complain of harassment?

Once an employee has either:

  1. Filed a complaint with the employer’s human resource department concerning the harassment
  2. Filed a complaint with the TWC and EEOC, the employee is protected from retaliation or further harassment because of that complaint.

To be protected activity, the harassment complaint must relate to a protected characteristic. While it is not required that an employee is represented by an attorney to pursue a harassment complaint, it is always important to fully understand your legal rights. A workplace harassment attorney can be a great place to start if you are considering pursuing a claim against your employer.

talk-to-employment-attorney

Did you find this content helpful? Share it...
howard-kobelan-blog-images-17

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.  

talk-to-employment-attorney

Did you find this content helpful? Share it...
attorney at work meeting

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.

talk-to-employment-attorney

Did you find this content helpful? Share it...
value-of-discrimination-complaint

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:

  1. dates of employment
  2. positions held
  3. 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.  

talk-to-employment-attorney

Did you find this content helpful? Share it...