Articles Posted in Retaliation Claims

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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austin-campbellThe Family and Medical Leave Act gives eligible employees the right to up to 12 weeks of protected, unpaid leave during any 12-month period. Probably the most important part of FMLA leave is the “protected” aspect—the right, when your leave ends, to be restored to your old job or an equivalent position. Unfortunately, that is not always as straightforward as it sounds, and many employees have been surprised by what was waiting for them at the end of their FMLA leave. An employer that does not return you to work as required by law may be liable for interfering in your FMLA rights.

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deontae-wherryEarned Paid Sick Leave

In 2019, the City of Dallas joined our other Texas cities when it passed the Earned Paid Sick Leave Ordinance. This ordinance requires employers to provide up to 64 hours of paid sick leave. While courts have restricted the enforcement of similar ordinances around the state, beginning April 1, 2020, the City of Dallas will begin enforcing this ordinance to ensure that employers are providing paid sick leave to employees. It is our hope that courts do not eventually restrict the City of Dallas from enforcing this ordinance to protect employees.

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fadi-yousefCan my employer tell me not to discuss my salary with coworkers?

The answer to this question is no. Federal labor laws prohibit employers from restraining, interfering with, or coercing employees who collectively participate in activities related to the terms and conditions of their employment. Those Terms and conditions cover a broad range of topics, like employees discussing wages, hourly rates, salaries, bonuses, commissions, and any other form of payment. For that reason, an employer cannot tell its employees not to discuss their pay amongst themselves. Otherwise, that would be a violation of the National Labor Relations Act (NLRA). And it does not matter if the employer has a union. Both unionized and non-unionized employees are protected.

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austin-campbellTo some people, workplace retaliation just means their boss is taking revenge against them for something that they did—after all, that is often what people mean by “retaliation” in everyday life. Regardless of how moral that kind of retaliation is, not all workplace retaliation is the same in the eyes of the law. That is, something your employer does might well be retaliation as people generally understand it, without being illegal in the State of Texas.

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Under Texas workers’ compensation law, employees who are unable to work because of injuries or illnesses they suffered during or in the scope of their employment are entitled to income benefits. Injuries are under the course or scope of employment when they occur while the employee was furthering or carrying out the employer’s business interests.

Even though Texas is an at-will state, Chapter 451 of the Texas Labor Code prohibits employers from discriminating or retaliating against employees who file a workers’ compensation claim. Specifically, an employer cannot retaliate against an employee for 1) filing a workers’ compensation claim; 2) hiring a lawyer to represent them in a workers’ compensation claim; 3) imitating procedures under a workers’ compensation claim; or 4) testifying in a workers’ compensation proceeding. Importantly, for these protections to apply, the employer must be a part of the state’s workers’ compensation plan.

Employers may try to hide their true motives behind a legal reason, and it is crucial that Texas employees who believe their employer retaliated, discriminated, or terminated their position based on their workers’ compensation claim seek legal representation.

Texas is an “at-will” employment state. This classification allows employers to terminate an employee for almost any reason. Texas employers can modify or terminate any or all of the terms of an employment relationship with or without warning or cause. Although this arrangement seems inherently unfair — and in some cases it is — there are some protections for employees.

The statutory exceptions that protect Texas employees from wrongful termination include state and federal employment discrimination laws, protected activity statutes, whistleblowing protections, anti-retaliation laws, military or jury duty requirements, and union activity protections. Additionally, the courts have enumerated public policy and contractual exceptions. The Texas Supreme Court created one of these exceptions in Sabine Pilot Svs. V. Hauck. The Sabine Pilot Rule prohibits employers from terminating employees based on their refusal to engage in illegal activities.

The Sabine Pilot Doctrine provides Texas employees with employment protections if they face wrongful termination because they refuse to commit an illegal act. To assert this protection, the employer must have demanded the employee commit an act that could lead to criminal prosecution, if committed. Common examples include asking employees to forge safety documents, release confidential information, provide customers with unprescribed medications, and dispose of hazardous materials in an unsafe way.

Misclassification often occurs when a Texas employer classifies an employee as an independent contractor as opposed to an employee. In some instances, a business may do this inadvertently; however, it is important to keep in mind companies receive many benefits when they classify employees as independent contractors. Employers may misclassify employees as independent contractors to avoid payroll taxes and benefits, and to circumvent wage and hour laws.  If an employer misclassifies an employee, the employee can file a status request by submitting IRS Form SS-8 with the IRS. Employers are prohibited from retaliating against employees because they filed this form.

Generally, the IRS will only allow a request from an employer or employee to determine employment taxes and withholdings. It is essential that Texas employees appropriately and accurately complete the form and provide all required information. Some critical information includes how the employee obtained the position. Specifically, the IRS needs to know whether the job was through an employment agency, general application, or a bid. Further, the employee should provide detailed information about their job duties and the work they performed. The employee must provide a thorough explanation regarding why they believe their categorization is incorrect. The IRS will also review any written agreements or contracts.

The IRS will determine whether the employer had behavioral and financial control over the worker, and what their relationship entailed. The IRS will also evaluate training, assignments, problems, routines, and roles of other workers. Further, it will consider who provides equipment and reimbursements. Financial control determinations also include examining the type of pay, who pays the worker, and what the economic risks are. Finally, the IRS will investigate benefits, penalties, non-compete agreements, union agreements, and how the business represents its workers to the community.

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