Articles Posted in Retaliation Claims

Austin Campbell

Texas Employment Lawyer Austin Campbell

Summary: This article gives a brief overview of the problems that the “manager rule” can cause high-level employees trying to raise concerns about pay issues, as well as the limits of that rule.

Categories: At-will; Wrongful termination; Retaliation Claims; Fair Pay; Wage and Hour; Tipped Employees     

Austin Campbell

Austin Campbell

Many employees may be unsure what to do if they discover they have been treated unlawfully by their employer.  Going straight into a lawsuit can be a scary step, and is not always the right one.  If you thought “there must be some government agency that can investigate and fix what happened,” often you would be right.  However, that is not always the case, and sometimes the existence of that agency can complicate things.  This article gives a basic overview of the “exhaustion of administrative remedies,” so that if you find yourself in that situation, you might know to avoid some pitfalls in the law and take advantage of opportunities to right how you were wronged.  

Not all employment laws are created equal.  Some, like the laws that prohibit things like sex, race, or age discrimination, are “administered” by agencies like the Equal Employment Opportunity Commission or the Texas Workforce Commission—Civil Rights Division (for equivalent Texas laws).  That means that you can file a complaint with those agencies to be investigated and (ideally) resolved before any lawsuit needs to be filed.  Similarly, the Occupational Safety and Health Administration administers OSH Act retaliation claims, the Department of Labor administers unpaid overtime claims, and the National Labor Relations Board administers claims (like for anti-union activities) under the National Labor Relations Act.  There are lots of agencies like those.    

Top10Blog-PostMost Federal employees enjoy an entire administrative regime dedicated to vindicating their unique rights. Out of this regime there are three big enforcement mechanisms that come to mind: Equal Employment Opportunity (EEO) offices, the Merit Systems Protection Board (MSPB), and the Office of Special Counsel (OSC). These three agencies are often entangled together, but each of them is dedicated in some way to addressing PPPs or prohibited personnel practices. A PPP is exactly what the name implies: certain practices in a Federal workplace that are unallowed under the law. The law lists out about 14 things which qualify as “prohibited.” It is important to note, however, that not all Federal employees can find relief through reporting these practices. Employees of local or state governments, uniformed military members, people who work in Congress or for the courts, United States Postal Service employees (except in specific situations), and finally employees of the FBI and CIA are not covered. The list of who is not covered is more expansive, than what is listed above, but those are the ones that may be the most relevant to the general body of Federal employees. To get a better idea of what the different PPPs are and how they would function, below are brief illustrations of the main PPPs using Official, an agency official in a supervisory capacity, C a favored employee, and D a non-favored employee.

First, there is a PPP that prohibits discrimination based on protected characteristics under federal law. This PPP tracks Title VII for the most part, but also adds in marital status and political affiliation to race, color, religion, sex, national origin, age, and disability. Discrimination PPPs are handled primarily through a Federal agency’s EEO office, but the Office of Special Counsel may step in if the discrimination is based on marital status or political affiliation. Adversity based on political affiliation is also covered in a different PPP. For example, if Official attempted to influence D to hand out flyers for a specific political candidate or decided not to promote D because she refused to hand out flyers, it would be considered a separate PPP from discrimination based on political affiliation. 

There are also four PPPs that have to do with violations of the merit systems that civil service is based off of. Things like considering a recommendation that was made by someone else outside of the agency. For example, if Official heard from Friend that C would be a good fit for the job and hires C based off of what Friend told him and not through his personal assessment – it is considered a PPP. Likewise if Official decided to give D an artificially low rating so that she would not be eligible for promotion, the Official would be considered to be “obstructing competition.” Official would also commit a PPP if he approached D and told her she should not apply for the promotion to remove her from competition because Official knew C was applying for the same job. In that same vein, Official could also not change the requirements for that promotion to give C an unauthorized advantage. Finally, if Official’s daughter were to apply to a position in his agency, Official could not hire her because she’s his daughter. This would also apply if Official called up his friend at another agency and attempted to influence the other agency to hire his daughter. 

deontae-wherryOne of the greatest benefits of our nation’s growth is the diversity that comes with growth. It is undisputable that more and more individuals are calling America home. As a result, the workplace is becoming more diverse and more employees are speaking other languages than English. According to the Center for Immigration Studies (“CIS”), more than 67.3 million residents in the United States now speak a language other English at home. CIS found that this number more than doubled since the 1990s. Texas ranks among the leading states that has a large share of residents speaking a foreign language at home. I expect these numbers to continue to increase exponentially in the decades to come. 

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deontae-wherryHave you ever wondered about what the Equal Employment Opportunity Commission (“EEOC”) actually does? You are not alone. Every week, I speak to my clients or potential clients about the EEOC’s role in employment disputes. This article briefly explains the EEOC process, common questions, and why you may want to hire an employment attorney to assist you through the EEOC process.

What is the EEOC?

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austin-campbellOver 1.6 million Texans were employed in the healthcare and social assistance industry by 2019, and that number is expected to grow steadily over the next decade.  Nursing in particular is one of the top five occupations in the state by number of online “help wanted” ads.  Because of that, it is all the more important that healthcare workers here are well-trained and competent, and also are empowered to say something when they see something that puts patient health or safety at risk.

Fortunately, the Texas Health & Safety Code provides some powerful whistleblower protections that are unique to the healthcare industry.  Unfortunately, figuring out if you fall within those protections is not always simple because the Code has so many different components.  Making things harder, Texas courts have interpreted relatively few parts of the Texas Health & Safety Code compared to other employment laws.  This article is meant to provide the reader with some basic information about some of the protections that healthcare workers (and others) have under this law, as well as limitations in the Code.

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deontae-wherryThe biggest step is usually the first step. I am glad that you have taken the first step by scheduling an initial consultation to discuss your employment case. If you have not scheduled an initial consultation, I hope you do it soon.

Many of my clients have never had to meet with an employment attorney, so my goal is to make each client feel as comfortable as possible when meeting with me. You should not be scared about having to meet with an employment attorney. I can assure you, you have likely made the right decision.

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deontae-wherryAfter watching the 8 minutes and 46 seconds video that outraged the world, many individuals have joined in the fight for racial justice. These individuals have chosen not to be silent; they have decided to speak up and to speak out against racial inequality. The fight against systematic and institutional racism and discrimination is not solely related to police brutality, but it is embedded in every facet of our society, including in the workplace. Although the Civil Rights Act was passed more than 50 years ago, there is still great progress to be made to end workplace race discrimination.

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fadi-yousefThe Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, prohibits employers with 15 or more employees from discriminating against women on the basis of pregnancy, childbirth, or related medical conditions. Although the PDA has been in effect since 1978, discrimination against pregnant women in the workplace continues to be an issue. In fact, in fiscal year 2019, the U.S. Equal Employment Opportunity Commission (EEOC) received over 2700 charges of discrimination on the basis of pregnancy and collected more than $22 million dollars in monetary settlements.

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austin-campbellThe Occupational Safety and Health Administration (OSHA) is part of the Department of Labor and administers the Occupational Safety and Health Act (OSH Act), as well as numerous other safety and whistleblower laws.  OSHA also sets safety standards for various industries.  Because of OSHA, many employers have a general duty to prevent working conditions that pose a risk of serious and recognized harm.

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