To 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.
Employees can face severe psychological and financial harm when their employer unexpectedly terminates them or lays them off. The Worker Adjustment and Retraining Notification Act (WARN Act) is a legislative attempt to mitigate the widespread negative consequences of unexpected termination and dislocation. The WARN Act requires specific employers to provide their employees with notice before a mass layoff or plant closing. Texas employers that violate WARN provisions may be liable to any affected employee.
The WARN Act typically applies to public, quasi-public, non-profit, and private for-profit employers that employ at least 100 full-time workers. Covered employees include supervisory, managerial, salaried, and hourly workers. However, business partners, striking workers, and temporary facility employees are not covered and are not entitled to notice.
The Act requires employers to give notice when (1) a plant is closing, (2) there is a mass layoff, or (3) over 500 employees are laid off at a single location. The Act also applies in situations in which an employee does not lose their job, but the employee experiences a work reduction of at least 50%. Generally, the Act requires employers to provide their employees with written notice at least 60 days before the closing. Employers cannot rely on verbal announcements, press releases, or notices included with a paycheck.
Many Texas employers require potential applicants and current employees to submit to drug testing. Federal and Texas laws permit private employers to adopt and implement broad drug and alcohol testing policies for their employers, with minimal limitations. However, according to the Texas Workforce Commission (TWC), government employers must show a compelling justification for drug testing.
The consequences of a failed drug test can be life-altering for an applicant or employee. In some cases, employers will provide rehabilitation services, but more commonly, employers will refuse to hire a potential applicant or terminate an employee. Additionally, employers are allowed to release the test results to the TWC, and this can affect a person’s unemployment compensation. Employees who believe their employer impermissibly drug tested them may have some legal protections.
Most employers should provide their employees with a written drug testing policy that outlines what results will be a violation, which employees require drug testing, and what measures will be taken after a violation. Unfortunately, Texas employers can fire employees that refuse to sign an acknowledgment of the drug testing policy. However, employers need to provide the employee with a warning that there is a risk of termination if they fail to sign the policy. Additionally, the policy needs to be enforced in a non-discriminatory manner.
The Fair Labor Standards Act (FLSA) requires that businesses and employers provide nursing mothers with certain accommodations in the workplace. The Act applies to all qualified Texas employees, and if their employers do not offer these benefits, the employer may be liable.
Section 7 of the FLSA (the “Act”) requires employers to provide employees with time and resources to breastfeed in the workplace. The Act mandates employers to provide their employees with a “reasonable break time” to express breast milk for their nursing child for up to one year after the child’s birth. Often, these breaks are referred to as “pumping breaks.”
The amount of time the employer is required to provide must be reasonable, but this will vary as to the frequency and number of times needed. Employers have several options on how to allow their employees this reasonable time. Some have periods of downtime, and they may ask their employees to use that time to express milk. In certain instances, employers allow employees to split shifts to enable employees to leave and express milk. If an employer has a formal policy for nursing mothers, they must adhere to these policies and procedures.
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.
The Fair Labor Standards Act (FLSA) is a federal law that provides employers with specific employment standards they must abide by. Employers must conform to the minimum wage, age, record keeping, and overtime rates the FLSA establishes. Texas employees whose employers violate these standards may file a lawsuit asserting their rights under the FLSA.
Employees can join together to file their claims under the collective action process. To bring a collective action, the employees must be “similarly situated.” Similarly situated employees are those that are subject to the same employment policies and procedures, even if they work in different locations or divisions. Typically, these actions are based on employee misclassifications, wage discrepancies, and/or break times.
Collective actions are similar to class actions; however, there are distinct procedural differences between the two processes. First, collective actions require the potential employees to “opt-in” to the lawsuit. Opting-in requires the employees provide written consent to be a party in the lawsuit. Employees that do not opt-in will not receive the benefits of the judgment and will not be bound by the ruling. In contrast, class actions automatically include all members of the class, and those that do not want to be involved must opt-out. Next, courts will only certify a lawsuit as a collective action after they conduct a two-part inquiry. Finally, a class action statute of limitations can be tolled while the court determines whether the employees can establish the proper class. Alternatively, the statute of limitations for collective actions will run until an employee files a consent to opt-in.
Texas employers that cite background checks in their personnel decisions must comply with specific procedures and statutes. Employers will typically include background checks in their hiring, retention, and promotion policies to evaluate a person’s work, education, financial, and criminal history. Although background checks are an integral part of workforce development, employers must protect employee’s rights in the process. The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) enforce the standards put forth through the Fair Credit Reporting Act (FCRA) and federal protections.
The EEOC requires employers to treat their applicants and employees equally before they request or review their background information. Employers cannot discriminatorily select which applicants and employees they request information for based on a person’s protected class. Under the FCRA, employers must take additional steps before they request an applicant or employee’s background information. The FCRA requires employers to:
- Inform the person the employer might use the results of the background check to make an employment decision;
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.
The Family and Medical Leave Act (FMLA) is a labor law that provides eligible employees with the right to take job-protected, unpaid leave for up to 12 weeks per year for family and medical reasons. Under the FMLA, eligible employees who take this leave will retain their group health benefits. Generally, employees are eligible if they worked for their employer for 12 months, for at least a minimum of 1,250 hours, and at a location where the organization employs at least 50 employees within 75 miles. Employees can take leave in specific situations, including during and after the birth of their newborn, after a child is placed with the employee for foster care or adoption, to care for a spouse, child, or parent with a severe medical condition, or when the employee cannot work because of a critical medical condition. Additionally, in 2008, the FMLA afforded additional benefits to military families through the Military Family Leave provision.
The “Exigency Leave” portion of the FMLA provides additional protections to qualifying employees whose spouses, parents, or children are deployed or going to be deployed to a foreign country. Similar to typical FMLA requirements, individuals who want to use this leave must work for a qualified employer and meet eligibility requirements. This leave allows the individual to take a total of 12 workweeks of leave to address issues that often arise when a family member is facing deployment. For example, the leave is designed to allow family members to arrange for daycare or attend official military ceremonies.
Additionally, Military Caregiver Leave allows qualifying spouses, parents, children, and next-of-kin to care for their military family members if they are suffering from qualifying injuries or illnesses. An employee can take this leave as long as they meet eligibility requirements and work for a qualified employer. This leave provides caregivers with the right to take a total of 26 workweeks of unpaid leave during a single 12-month period.
Under the Due Process Clause of the Fifth and Fourteenth Amendments, Texas government and public employees are entitled to certain protections. Generally, the Clause prohibits the government from depriving individuals of their life, liberty, or property interest without due process. In most cases, Texas government employees reasonably expect to continue their employment. This reasonable expectation results in a protected property interest.
Texas government employers should provide their employees with their due process rights before terminating their employee’s positions. Due process includes providing an employee with notice and a fair hearing. If a Texas employee believes their employer violated their due process rights, the courts will evaluate their case by examining two main factors. First, the court needs to determine whether the individual has a protected interest in continued employment and, second, whether the employer provided them with notice and a suitable level of process.
Typically, an employee’s expectation derives from their employer’s handbook or policy. In these cases, an employer’s policy or procedure may indicate that termination may only occur for “just cause.” Sometimes employer’s policies will further explain that other adverse employment actions, such as demotion and suspension, cannot happen without just cause as well. Although there is no official definition for “just cause,” there are many factors the courts will examine to determine whether the circumstances meet the threshold. Some elements include: the warning, the reasonableness of the prohibited behavior, the inquiry to determine fault, if the investigation was fair, whether the rules are applied consistently, and the employee’s record. Even if a Texas employer’s handbook, contract, or policy does not explicitly provide a property interest, their past practices may establish otherwise.