Articles Posted in Workplace Retaliation

Employment Lawyer Deontae Wherry

Dallas Employment Lawyer Deontae Wherry

In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) which protects military service members and veterans from employment discrimination because of their military service. USERRA requires that employers allow service members to regain their civilian jobs following their military service. Many states like Texas have implemented state laws that also protect service members at the state level.

Although one would believe Texas understands the importance of protecting our military service members, since it has passed laws to protect them, Texas has been fighting to protect itself from liability under USERRA.  Texas’ long battle has now come to an end, and now service members can sue state employers if they violate USERRA.

The Texas Whistleblower Act prohibits a state or local government entity from taking adverse personnel action against an employee “who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” The two most important considerations when determining whether a violation of the Texas Whistleblower Act occurred are: (1) whether you acted in “good faith” which means that you believed the conduct you reported was a violation of law and your belief was reasonable; and (2) whether you reported the violation to an appropriate law enforcement agency which is a government entity you believed is authorized to either enforce the laws or investigate or prosecute a violation of criminal law. For instance, an internal report of illegal activity to someone else within the public entity (supervisor/HR) is not typically a report made to an appropriate law enforcement authority. 

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Most of the time, if an employee decides to talk to an employment attorney it is because they have been fired.  And even if reinstatement to the employee’s old job is a possibility, often when they were fired for an illegal reason they are understandably afraid of returning to the lion’s den to face retaliation.  But if you are an employee who was fired for an illegal reason and do not feel safe returning to that same employer (or your employer just refuses to take you back), it is critically important that you keep in mind your “duty to mitigate.”  This article explores some key points of that means, why it is important, and what you can do to fulfill that dutyaustin-campbell

The point of any employment lawsuit is ultimately “restorative,” to put the employee in the same place they would have been but for the illegal actions of their employer.  If feasible, that includes reinstating them to the position they lost.  But reinstatement is not always feasible, and it alone does not always fully compensate an employee for what they lost.  So, one major thing that most employment lawsuits usually ask for is compensation for lost wages (“backpay”) through the time of trial.  However, courts will not allow an employee to artificially increase what they can get out of a lawsuit by tactically increasing what the employee has lost.  Instead, courts impose a “duty to mitigate,” which means a fired employee who is asking for backpay in a lawsuit must make reasonable efforts to find and keep comparable employment.

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austin-campbellEmployees leaving a company can often wonder whether their former employer will insert itself into their future career. In particular, people can be worried about what former employers are allowed to say to jobs where they are applying.  “Can my old job sabotage my career?”  Texas has a patchwork of laws that apply to employment references that often differ dramatically from laws in other states.  The fact that companies can have their own reference policies only serves to confuse things more.  The purpose of this article to relieve some of that confusion when it comes to employment references in Texas.

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austin-campbellGenerally, you have the burden of proving if your employer’s actions toward you violate the law. Of course, sophisticated employers seldom admit to doing something that breaks the law, and often employment cases turn on a “he-said/she-said” moment, where the employee claims something was said and the employer later denies it. One way, we sometimes see employees try to even the playing field by secretly recording conversations in the workplace to have proof of illegal activity beyond their own word.

This article answers some key questions employees often have about recording in the workplace. Is it legal for you to do it? Can your employer order you not to? Can your employer punish you for recording? Is it a good idea?

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