— Wrongful Termination Category Archives — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

The Surface Transportation Assistance Act fills in gaps in protections for whistleblowers in the transportation industry.

April 28, 2023 | Austin Campbell

Summary: This article explores some of the nuances of the Surface Transportation Assistance Act’s anti-retaliation provisions, and how they can help you as a transportation employee.

The federal Occupational Safety and Health (OSH) Act provides protections for employees who blow the whistle on safety problems on the job. However, those protections do not cover every safety concern or industry, and employees have an extremely short, 30-day window in which to file a retaliation claim with the Occupational Safety and Health Administration (OSHA).

Fortunately, OSHA also enforces various other more specific whistleblower laws. One important example is the Surface Transportation Assistance Act of 1982. Among other things, that law provided broader protections for a narrower set of people: workers who drive commercial vehicles (including contractors), mechanics on commercial vehicles or employees who otherwise directly affect the safety of those vehicles, and employees who handle freight.

The Truth Will Not Hurt You!

August 12, 2022 | Deontae Wherry

Searching for a job in today’s job market can be a tedious and competitive process. Employers are adding more requisites and qualifications to job postings in an attempt to attract the best candidate. That, in turn, requires candidates to find ways to better market themselves, including sometimes exaggerating their skills and qualifications on their resume and application or misrepresenting why they left their last employer. Let me warn you—don’t misrepresent your qualifications or the reason you left your employer. If a job is meant for you, the job will be for you.

How can a misstatement on an application affect you in an employment case?

For purposes of this article, employers will use any information that will undermine the employee’s credibility. Put simply, one of the employer’s objectives is to show that employee is not trustworthy. One way to do that is by looking to an employee’s application to determine if the employee misrepresented his or her experiences, qualifications, or previous job history. If you intentionally mispresent information on your application or your resume, the company will also use your misrepresentation against you as an after-acquired evidence defense. The best way to avoid helping an employer build one of its defenses is by being truthful.

The limits of the duty to preserve evidence in Texas

April 14, 2022 | Austin Campbell

This article gives a brief overview of when and to whom a duty to preserve evidence applies under Texas law, and discusses why it is usually important to clearly put your employer on notice as soon as possible if you have a legal claim against it.

Many times when someone first hires a lawyer to pursue an employment claim, they ask about getting information or evidence from the employer. Despite how the media present things, there generally is no legal requirement for an employer to turn over any information whatsoever to a current or former employee, even under threat of a lawsuit. Texas rules generally allows so-called “pre-suit discovery” in limited circumstances, like to preserve information or testimony that might otherwise be lost (for example, by the death of a witness).

Usually then, an employee has to file suit and then conduct formal discovery to actually get information from their employer related to their claims. If, by that time, that evidence is conveniently gone, what a plaintiff might be left with is only seeking remedies after the fact for “spoliation,” or the unlawful destruction of evidence. Courts may penalize a party that destroys evidence in various ways, such as by instructing a jury to conclude that the destroyed evidence was exactly what the other party says it was, assessing monetary penalties, or even dismissing legal claims brought by the responsible party. Generally, the more unreasonably the party that destroyed evidence behaved, the worse the penalties.

Federal employees, the MSPB, and what to do if “the Man” won’t honor its word.

December 16, 2021 | Austin Campbell

Summary: This article gives a very brief overview of what you can do if you are or were a federal employee, settled an MSPB appeal with the government, and are now concerned it is breaching its agreement.

Say you’re a federal employee who, unfortunately, had to file an appeal with the Merit Systems Protection Board (“MSPB”). Perhaps you were improperly reduced in grade, removed from your position, or you were subjected to a prohibited personnel practice. A final hearing before an Administrative Law Judge (“ALJ”) with the MSPB may be the way to fix the situation. Other times, before the hearing you and the federal agency you work(ed) for may be able to work out some deal to put an end to the situation, like them reinstating you, paying you lost wages, agreeing not to sabotage your career, or the like.

You might or might not have an attorney at that time. That deal may be great on paper (and it should always be in writing!), but what happens if your employer refuses to do what it said it would do? That sort of thing is not necessarily common, nor is it unheard of. Unfortunately, there are federal agencies that have problems with a culture of retaliation.

Don’t Move the Goalpost

September 16, 2021 | Deontae Wherry

As a young athlete, I remember the phrase, “Don’t move the goalpost.”

The phrase is often used in sports to describe changing the criteria, or goal, while the game is still in progress. Outside of the sports arena, the phrase is commonly used as a metaphor when the goal is changed after someone has begun an act or process in an attempt to reach said goal. It may be perceived that a person is placed at an advantage or disadvantage when the goal is changed. Now as a lawyer, sometimes I find myself saying, “Don’t move the goalpost.”

As the client, you set the goals for your case. This is where you tell your attorney what your desired outcome is. If you don’t know what your options are, ask your attorney to walk through the potential outcomes. In many employment law cases, employees want a severance for lost wages, a neutral reference for prospective employers, a reasonable accommodation for a disability, or reinstatement of an old position. This is not an exhaustive list, but represents some of the common goals that clients desire. Be sure to sit down with your attorney to discuss all your options.

When it doesn’t pay to be the boss: the Fair Labor Standards Act’s “Manager Rule”

September 9, 2021 | 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

If your employer turns on you and starts taking actions against you because you raised a complaint protected by law, you may be suffering unlawful retaliation. However, not all laws treat all complaints—and all whistleblowers—the same. As a result, even clear retaliation might not always cross over the line into actually being illegal.

Employers are using AI in hiring practices. What could go wrong?

July 23, 2021 | Rob Wiley, P.C.

In recent years, Artificial Intelligence (AI) has invaded virtually every industry, from technology on your phone, to cameras at your city’s traffic lights, to drones used by the military. Employment and hiring practices are not exceptions.

AI systems are created by humans and then learn on their own by analyzing data. Over time, an AI system is supposed to improve its efficiency and results. In the employment context, AI is used in most steps of the hiring process, including advertising for the job, scanning resumes and job applications, selecting applicants for interviews, and even analyzing applicants’ facial expressions and behavior during recorded interviews.

Proponents for the use of AI in hiring practices claim it speeds up the hiring process, more accurately identifies the right candidates for the position, and eliminates human bias and subjectivity. In a survey conducted by LinkedIn, 67% of recruiters surveyed said AI saved them time and 43% of them said AI removed human bias from the hiring process. I can agree that AI saves time. But removing bias? Not so fast.

You might be tired of “Exhaustion of Administrative Remedies,” but don’t sleep on it!

June 4, 2021 | 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.

For some types of legal claims, like unpaid overtime, you can decide to go the agency or just file a lawsuit. For other laws, like the Family and Medical Leave Act, there is not an agency to go to at all, and your main recourse is to just file a lawsuit. Still other laws, like the OSH Act or the NLRA, make it so you can only bring a complaint with the government, and generally do not have any right to file a suit at all.

At Will Employment: What does it really mean in Texas?

February 26, 2021 | Rob Wiley, P.C.

What does it really mean to be an “at will” employee in Texas? You’ve certainly heard of this term often. In the next few paragraphs, I will talk about what that term really means in the eyes of the law and how it impacts you, and I’ll also discuss the exceptions to at will employment.

The first thing you should know is that Texas is an “at will” employment state. At will employment simply means that your employer can fire you at any time, for any reason, or for no reason at all. That actually includes false, malicious, unfair, or unethical reasons, as long as those reasons aren’t illegal, or in violation of a contract (we’ll discuss below). At the same time, it also means that you, the employee, can quit your job at any time, for any reason, or for no reason at all. But what if your employer required you to give two weeks’ notice before you quit; does that mean you’re not an at will employee? In general, if your employer requires two weeks’ notice before you quit but reserves the right to fire you without notice, then your employment is likely still at will. This means if you quit without notice, you may be violating your employer’s policy, but not any law or contract.

“Judicial Estoppel”: When bankruptcy is more than just a financial obstacle to protecting your rights as an employee

January 22, 2021 | Austin Campbell

Usually when your employer has done something illegal to you, it hits you directly in the pocketbook. For example, maybe your employer illegally denied you an earned bonus, failed to pay overtime you were owed, or fired you in retaliation for a protected complaint. Often that loss of income can put you as the employee in a precarious financial position. Unfortunately, you might have no choice but to declare bankruptcy.

The intersection between employment law and bankruptcy law can be complex and unintuitive; a full explanation of it is beyond the scope of this article. However, bankruptcy can impose legal—not just financial—barriers on your ability to protect your rights as an employee. This article is meant to put employees on notice of some steps they can take in a bankruptcy situation, to reduce the chance of losing their ability to vindicate their rights and recoup their economic losses.