Articles Posted in Retaliation Claims

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.

This article looks at what that “return to work” requirement involves, what your rights as an employee are when it comes to returning from FMLA leave, and some things you might be able to do to protect those rights.

If you are entitled to FMLA leave, your employer has to return you to work at the end of that leave*. But there are some proactive steps you can take to protect that right. An employer may not be required to return you to work if you overstay your leave. Because of that, to play it safe an employee should contact their employer before their leave ends if they have not heard from their employer. First, you can make it clear you plan to return at the end of your leave. Second, you can ask about the details of your return: things like your schedule and what your job will look like when you come back. And of course, you should actually report to work promptly after your leave ends.

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.

Who is protected under Dallas’ Earned Paid Sick Leave Ordinance?

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.

Are all employers and employees covered?

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.

The purpose of this article is to help shed some light on that critical difference, because when something crosses the line into being illegal retaliation, you as an employee may have many more options for pushing back against it or stopping it. I will focus on two major requirements of most anti-retaliation laws—”protected activity” and “material adversity.”

First, illegal retaliation requires that what your employer did to you was because of some “protected activity” you took part in. Many different laws define different things that are protected, but not everything is protected.

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.

A whistleblower is an employee who reports a workplace violation. Whistleblowers are responsible for making the workplace a safer and more equal environment. However, employees often do not report violations in the workplace because they fear that if they did, their livelihood might be jeopardized based on potential retribution from their employers. To promote workplace safety and to ensure that companies and organizations are not violating the law, federal and state governments enacted various whistleblower protection acts.

Most recently, a presidential Executive Order required the Department of Veterans Affairs (VA) to establish the Office of Accountability and Whistleblower Protection (OAWP). This office is designed to ensure the VA is accountable for its policies, procedures, and conduct. VA employees, potential employees, and former employees can report certain violations to this office. The OAWP is required to receive and investigate these disclosures. Furthermore, they ensure the employee does not face any retaliation for their disclosure. Retaliation includes actions taken against the employee based on their complaints such as termination, demotion, or any other adverse employment action.

Typically, the OAWP will investigate allegations regarding violations of rules or laws, fund mismanagement, abuse of authority, and behavior that is dangerous to public health or safety. The OAWP directly reviews claims of misconduct, retaliation, and performance issues that involve certain VA employees. The scope of the investigation is limited to VA employees that are senior executives or those that are in a confidential or policy-making position. The office will investigate supervisory employees if the allegations concern retaliation against an employee.

The Equal Employment Opportunity Commission (EEOC) reports that retaliation is the most common type of discrimination lawsuit employees bring against their employers. Under state and federal anti-discrimination laws, Texas employees and prospective employees cannot be punished for any “protected activity.” Protected activity is a legal term used to describe an employee’s right to engage in certain activities without fear of retaliation.

After an employer receive a complaint of discrimination, an investigation should take place to substantiate the claims. During these investigations, employees and co-workers may face questions about what they have witnessed in the workplace, or if they have any knowledge or experience with the issue at hand. Employees are expected to answer truthfully and fully cooperate in these investigations. In some cases, employees are discouraged from participating in these investigations for fear of retaliation. However, employers are not permitted to retaliate against an employee for cooperating in an investigation, even if the investigation does not lead to the filing of a discrimination lawsuit.

If an employee is fired, demoted, transferred, or otherwise punished for engaging in activities such as filing or participating in an employment discrimination complaint or lawsuit, that is retaliation for engaging in protected activity. The EEOC prohibits retaliation against an employee for participating in the complaint process. Employees are also protected if they try to oppose discrimination in the workplace in any other way. However, the employee must be able to show they were acting on a reasonable belief that discrimination was taking place. Employees frequently claim they experienced negative performance reviews, verbal abuse, ridicule, undesirable transfers, or even termination after participating in an employment discrimination investigation.

Over the past few decades, government regulators have begun to keep a much closer eye on the conduct of those in charge at large corporations. However, regulators may not be privy to all the inner-workings of a corporation, and given the number of corporations and lack of available resources to ferret out the wrongdoers, corporate misconduct flew under the radar for years. More recently, however, the Securities and Exchange Commission (SEC) started the SEC whistleblower program, which relies on employee whistleblowers to report violations of U.S. securities laws.

Under the SEC whistleblower program, an employee who voluntarily reports information that assists the SEC in recovering amounts of more than $1 million is eligible for a financial award. The amount of the award ranges between 10% to 30% of the monetary sanctions collected by the government. These funds are paid out of a separate fund called the Investor Protection Fund, rather than with company proceeds.

To be eligible for a reward through the SEC Whistleblower program, a reporting employee must be able to show the following:

  • The information provided relates to a violation of U.S. securities law or relates to the bribery of a foreign official;
  • The information was provided voluntarily, and not in response to questioning or an investigation;
  • The information was based on personal knowledge, and not publicly available records; and
  • The information must result in a new investigation or significantly contribute to an existing investigation.

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