Attorney Eric Dama

elderly peopleThe First Amendment prevents the federal, state, and local governments from infringing on rights of religion, press, speech, assembly, and petition. While workers of private companies are not protected from being fired for what they say, government workers may be protected from retaliation for exercising some of their First Amendment rights. Specifically, they are protected with regard to speech when talking about issues believed to be of public concern. They are not protected from retaliation for everything they say, however.

In 1968 the Supreme Court ruled in Pickering v. Board of Education that a government worker’s interest in remarking on issues of public concern needed to be balanced against the government’s interest as an employer in increasing the efficiency of public services that it offers through its workers. The Court noted that government workers are often in the best position to know any problems within government agencies, and those problems should be transparent, so the public can decide how best to address them. In that case, the Supreme Court also said that this type of speech isn’t protected if it knowingly or recklessly includes false statements. Critical to this case was that the teacher plaintiff was speaking more as a citizen than as a government employee when writing the letter to the editor with which the school district took issue and for which it terminated him.

A court deciding whether a government worker was impermissibly subjected to retaliation under the First Amendment must look at:  (1) whether the plaintiff was involved in an activity protected by the Constitution, (2) whether the government’s actions injured the plaintiff, such that an ordinary person would be deterred from continuing with those activities, (3) whether the injurious actions stemmed at least partly from utilizing one’s constitutional rights, (4) whether the worker’s speech was about a subject of public interest, and (5) whether the worker’s interest as a citizen in talking about public interest matters outweighs the government’s interest in efficient service provision.

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welding torchTexas workplace violence includes any threat or violent action taken against a worker. It can happen both on the job and away from the workplace. Nobody is immune from workplace violence, and some workers are at a higher risk of injury from a violent coworker due to the nature of their workplace. Some workers at heightened risk are those who exchange money with the public, health care and social service workers, those who work in community settings with extensive public contact, those who deliver goods or services, and those who work in small groups late at night or early in the morning.

Among the leading causes of job-related deaths, according to the Occupational Safety and Health Administration, are homicides and physical assaults. A violent coworker is a workplace safety issue that employers should take affirmative steps to address.

Every workplace is supposed to develop and maintain a workplace violence prevention program, as well as employee handbooks or manuals of standard procedures that address this problem. All employees should be aware of the policy and understand that claims of workplace violence will be promptly investigated and addressed. Employers may also owe a duty to provide their employees with safety education and steps on what to do if they’re attacked by a violent coworker. It can also be helpful for an employer to install video surveillance, provide staff who work in the field with cell phones, and minimize access to work locations by outsiders.

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moneyThe SEC whistleblower program was established by Congress as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Dodd-Frank Act is one of several financial reforms, another of which was the Sarbanes Oxley Act, which was passed in 2002.

The whistleblower program gives awards to eligible whistleblowers who voluntarily give original information to the SEC that results in successful SEC enforcement actions with civil sanctions that are greater than $1 million. A whistleblower is an individual or several individuals acting jointly. Corporations and similar entities cannot be considered whistleblowers.

To be considered original information for the purposes of an award, a Texas whistleblower has to include information derived from their independent knowledge or analysis, and it can’t be known by the SEC already from another source, except when the whistleblower is the original source because they first reported the information to the Department of Labor and Department of Justice, which provided the information to the SEC. The information can’t be exclusively derived from allegations made in government reports or judicial and administrative hearings unless the whistleblower is a source of the information. Independent knowledge must be facts that are not gotten from sources that are publicly available. The whistleblower might have observed the facts first-hand but can also get knowledge via experience or discussion.

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conference roomThe Sarbanes-Oxley Act of 2002 (Sarbanes Oxley) is a federal law that provides protection to those who work for publicly traded companies and who inform authorities about SEC regulation violations or federal law violations connected to fraud against corporate shareholders. The law prohibits retaliation, discrimination, or harassment in the workplace against Texas whistleblowers.

Retaliation is any adverse change to the whistleblower’s terms and conditions of employment, and it can include anything from a simple reprimand to termination or blackballing. It’s not just those who work directly for publicly traded companies who are protected, but also agencies, contractors, and subcontractors of publicly traded companies.

The law includes as protected whistleblower activity any reports sent to federal law enforcement and regulatory agencies about violations, as well as reports to a supervisor, investigators within the company, and Congress. Employees who testify or who are involved in regulatory proceedings and other shareholder fraud proceedings are also protected.

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officeThe False Claims Act (FCA) is a federal law that allows you to blow the whistle on unscrupulous companies, individuals, or contractors who defraud the government by bringing fraudulent claims or contracts. The FCA covers any federally funded contract or program. However, the FCA doesn’t cover securities fraud or tax fraud. Securities fraud is covered by the Dodd-Frank Act and the Foreign Corrupt Practices Act. Tax fraud is covered by the Tax Relief and Health Care Act.

When you have personal knowledge of fraud against the United States or Texas government, whether it’s at your workplace or another workplace, you can bring a Texas qui tam action to court. A qui tam lawsuit is one in which action is taken on the government’s behalf.

There are both federal and state False Claims Acts. Under these laws, you can pursue a qui tam action against an entity that has wronged the government. In a federal case, you file a sealed complaint of fraud based on your private knowledge about the wrongdoing. For example, in one federal case arising in Texas, a relator claimed that the defendants violated the FCA by submitting reimbursement claims of hospice care expenses for patients who weren’t eligible for MHB, when the necessary doctor’s certifications incorrectly certified that they were terminally ill.

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BrailleBoth the Americans with Disabilities Act (ADA) and the Texas Labor Code Chapter 21 prohibit employment discrimination based on disabilities in most workplaces in Texas. If you think you’ve been subjected to discrimination because of your disability, you may have a basis to bring a complaint to the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC).

Individuals qualified as having disabilities under federal and state laws have a physical or mental disability that substantially limits at least one of their major life activities, have a record of having such a disability, or are perceived as having this type of disability. Major life activities under the ADA include caring for yourself, performing physical tasks, seeing, hearing, sleeping, eating, walking, standing, bending, lifting, reading, concentrating, thinking, and breathing. Major life activities also include the proper operation of a major bodily function, such as neurological function, brain function, or endocrine function. “Disability” is supposed to be defined broadly.

An impairment that substantially limits a single major life activity doesn’t need to limit any other major life activity in order to be considered a disability that is covered by the ADA. Even impairments that are episodic or in remission may be disabilities if they would significantly restrict a major life activity when active or not in remission.

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old manIf you are age 40 or over, you are protected from age discrimination under Texas Labor Code Chapter 21, as well as the federal Age Discrimination in Employment Act (ADEA). By law, a Texas private employer with a minimum of 15 or more employees is covered by state law. All state and local governmental entities are covered by state law, regardless of how many employees they have. The ADEA applies to employers with a minimum of 20 employees in 20 or more weeks of the current or prior year. Neither Texas nor federal law protects younger workers from age discrimination.

Age discrimination includes any adverse employment decision taken against you due to your being 40 or older. Employment decisions include hiring, firing, promotions, and demotions, as well as refusing to allow someone to be trained or participate in some other privilege of employment. It is illegal for employers to include age requirements in their job notices, except when they can show an age lower than the limit is reasonably necessary to operating the business. For example, a police department may set an upper limit on the age you can be to do a particular position that requires more physical ability.

It can be hard to determine whether you’ve been subjected to discrimination based on your age. Sometimes, an employer makes comments about wanting fresh faces or critiques older workers in order to nudge older workers to take a retirement or quit. These types of comments and criticisms may be used to show age discrimination, if soon afterward you are terminated or denied a promotion. While there’s no prohibition against being asked your age or date of birth in a job interview, the question could show intent to discriminate. Usually, when age information is necessary, an employer waits to ask until after the employee is hired.

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microscopeAs long as it has 15 or more employees, your employer cannot take adverse employment actions against you based on your sex under the Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act. Taking an adverse action against an employee based on his or her sex or perceived sex is sex discrimination. For example, if you were not promoted, denied a job, fired, or not trained due to your sex, these are all examples of gender discrimination. Sex discrimination can occur in any industry, although lately many news headlines focus on discrimination in the science and tech industries.

Federal law does not explicitly provide protection based on gender identity, expression, or orientation, but the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that same sex and gender identity discrimination are implicitly included in the prohibition against sex or gender discrimination in Title VII. Although about 429,000 workers identifying as LGBT live in Texas, there is no statewide law that prohibits discrimination based on sexual orientation or gender identity in workplaces. Certain cities have enacted ordinances to prohibit these types of discrimination and harassment.

There are two categories of sex discrimination — direct discrimination and disparate impact. Direct discrimination involves an employer who affirmatively acts in an adverse way against an employee due to sex. For example, if your boss refuses to promote you because he thinks women are not good leaders, this may be actionable as sex discrimination. Disparate impact is a more subtle form of sex discrimination. It exists when an employer creates a policy or practice that is facially neutral, but the policy or practice has a greater negative impact on employees of one sex more than another.

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manTexas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 prohibit race discrimination in most Texas workplaces. Race discrimination occurs any time that an employer makes an adverse employment decision based on race, and it is absolutely illegal.

Assuming it has a minimum of 15 employees, your private employer cannot make adverse employment decisions when hiring, firing, promoting, paying, training, or providing other terms and conditions of employment. Employers cannot make these decisions based on their biases about the qualities or performance of people who belong to specific races. They also can’t make those decisions based on a job applicant or employee’s association or marriage to someone of a certain race, membership in ethnic or race-based organizations, or attendance in schools that are identified with certain races.

For example, if your manager decides not to promote you to a supervisory position because she has stereotypes about people of your race not being good leaders, this would be race discrimination. Similarly, if you are not hired for a job because a company’s leadership believes that people of your race aren’t creative enough to do a job, that is race discrimination.

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gypsyBoth Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 guard against workplace discrimination that occurs on the basis of an employee’s national origin. National origin is a characteristic that refers to one’s birthplace, ancestry, culture, or linguistic characteristics. Often, national origin discrimination overlaps with race, religion, or color, which are also protected characteristics. For example, discrimination against those from Middle Eastern countries can be motivated by both national origin and the assumption that they subscribe to particular religious practices. Accordingly, a complaint we file on your behalf may assert multiple causes of action or grounds of discrimination.

Often, one’s national origin is revealed through accent. For example, if you grew up in Iran and immigrated to the United States as a young adult, you may still have traces of an Iranian accent. Similarly, if you grew up in Mexico and lived mostly among Mexican immigrants after immigrating, you may speak English with an accent.

You cannot be treated differently in a workplace due to your accent or due to a spouse’s or an associate’s accent. National origin discrimination occurs if an employer makes an adverse employment decision based on your accent. For example, an employer is not supposed to refuse to allow you to work in a customer-facing position due to your accent because he wants to create a more wholesome American image for his restaurant. Similarly, an employer is not supposed to turn down a job applicant for a teaching job because he has an Indian accent.

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