Wrongful Termination

December 4, 2019

Can I Be Fired for Filing a Workers’ Compensation Claim?

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.

October 22, 2019

The Due Process Rights of Texas Government Employees

by Eric Dama

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.

June 1, 2019

Are Employment Handbooks Binding On Employers?

by Eric Dama

Employee handbooks typically outline an employer’s expectations, as well as the consequences an employee may expect if they fail to meet the employer’s expectations. However, employee handbooks may also outline other important information, including:

an employer’s overtime policy;
the benefits offered by the employer;
various types of leave available to employees;
guidelines for employee performance reviews;
the expected process for an employee to resign from their position; and
policies for promotion, termination, and transfers.

Employees should be able to rely on the language in the handbook and be confident that, if they avoid the prohibited conduct listed in the handbook, they will not be unfairly disciplined or terminated. Similarly, an employee should be able to rely on the listed benefits and procedures outlined in an employee handbook throughout the course of their employment. However, that is not always the case.

Routinely, Texas employers terminate employees for conduct not listed as prohibited or discouraged in an employee handbook. Similarly, it is not uncommon for an employer to renege on the benefits mentioned in an employee handbook or otherwise not follow the procedures outlined in an employee handbook. When this occurs, an employee may be able to pursue an employment claim against their employer.

May 10, 2019

What Is Considered Associational Discrimination in Texas?

by Eric Dama

In this blog, we often talk about the various types of Texas employment discrimination claim an employee can bring against their employer. For the most part, discrimination claims come up when an employer takes some type of adverse employment action against an employee based on their protected status. Adverse employment actions include firing, failing to promote, transferring, or failing to hire a prospective employee. According to the Equal Employment Opportunity Commission (EEOC), the protected classes are race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, disability, and genetic information.

It is important for Texas employees to realize federal law protects them from discrimination based on their own membership in a protected class as well as based on their association with members of a protected class. This is called associational discrimination. An example of associational discrimination would be an employer deciding not to hire a prospective employee because that person’s spouse suffers from a serious illness, out of fear the prospective employee would require a lot of unexpected sick days to care for their spouse.

While trial and intermediate appellate courts across the country agree associational discrimination is a legitimate claim of discrimination, the United States Supreme Court has not defined the standard. Neither has the Fifth Circuit Court of Appeals. However, the Fifth Circuit has implicitly recognized associational discrimination claims. Additionally, Texas federal courts have explicitly adopted a standard for associational discrimination claims. Unless the Fifth Circuit or the U.S. Supreme Court takes a different position, an employee making an associational discrimination claim must establish:

May 1, 2019

Are My Social Media Posts About the Workplace Protected?

by Eric Dama

Social media has become the preferred method for many to air their grievances. It’s not surprising Texas employees are increasingly relying on social media when they organize in support of establishing more favorable work conditions. At the same time, many employees have been fired for posting on social media. This has created uncertainty regarding which social media posts are protected and which may be cited as a valid basis for an employee’s termination.

The National Labor Relations Board (NLRB) is a federally created organization that protects employees’ right to organize. Historically, the NLRB was mostly involved in traditional organized labor movements involving employees’ rights to either join or not join a labor union. However, the NLRB’s protections have expanded over time. Most notably, the NLRB’s protections extend to any activity that is both “protected” and “concerted.”

Texas employees have the right to raise issues involving labor conditions on social media. This includes sharing information and openly discussing matters involving pay, benefits, or any other working conditions. To be protected, a social media post must pertain to protected, concerted activity.

March 21, 2019

Applying for Unemployment Benefits for Texas Workers

by Eric Dama

The Texas Workforce Commission (TWC) administers Texas unemployment compensation laws. Under Texas employment law, employees must meet specific employment qualifications to be eligible for unemployment compensation. If the TWC denies unemployment compensation, a Texas employment lawyer can assist with an appeal.

According to the TWC, when an employee has left their employment through no fault of their own, they may apply for unemployment compensation. An application can be filed online, in-person, or by calling the state hotline. Texas maintains a “work search” registry and individuals who have applied for unemployment compensation must sign up with this registry. They must also submit weekly claims showing they are attempting to find a job in their related field.

To establish a claim for unemployment compensation, the person must first show they are unemployed through no fault of their own. Some common scenarios that qualify include layoffs, resigning for good cause, or a reduction in work hours or wages. Of course, this reduction must not be related to misconduct.

February 1, 2019

The National Defense Authorization Act and the Protections It Provides to Texas Contractors and Employees

by Eric Dama

The federal government has certain laws ultimately designed to prevent the misuse or waste of federal funds. Thus, to encourage federal employees to “blow the whistle” on those engaging in misconduct, lawmakers passed the Whistleblower Protection Act (WPA). Under the WPA, government employees who report certain acts of misconduct are protected from an employer’s retaliation.

For decades, the federal government has relied upon non-government private contractors to perform certain government functions. However, the WPA only applies to government employees. Thus, to extend the whistleblower protections of the WPA to private government contractors, Congress included certain protections in the National Defense Authorization Act (NDAA).

As noted above, the NDAA provides protections to private contractors hired by the federal government when they report waste, fraud, or abuse in federal government contracts and grants. The NDAA also covers whistleblowers who are employees of private contractors, as well as subcontractors and anyone else working on a government contract or grant.

June 22, 2018

Texas Workforce Commission Severance Pay Laws

by Eric Dama

In Texas, final compensation policies and practices are regulated by the state’s Payday Law. Among other things, the law instructs employers and employees on their rights after an employee leaves employment. In cases in which an employee is fired, discharged, laid off, or involved in any other involuntary separation, they are due their pay within six calendar days. In instances in which the employee leaves voluntarily, such as by quitting or retiring, they are due their final pay on the next regularly scheduled payday.

Texas Severance Pay

Under the Texas Payday Law, Texas employers are not required to provide their employees with severance pay, although many employers do provide this or may be required to provide this for a multitude of reasons, such as provisions in Texas employment contracts.

Severance pay is a type of compensation that some companies offer when employees are terminated due to no fault of their own. This is usually applicable in situations in which an employee has worked at a particular job for some length of time or in a certain position and has been let go. Generally, employers use a set formula to determine when an employer will be due severance pay. The theory behind severance pay is to compensate the employee for the lack of advance notice of their termination. Although the Fair Labor Standards Act (FLSA) does not mandate severance pay, many Texas employers offer this type of compensation.

June 7, 2018

The Importance of the Merit Systems Protection Board for Federal Employees in Texas

by Eric Dama

In 1979, the United States Civil Service Commission established the Merit Systems Protection Board (MSPB), which is an agency designed to prevent federal employers from engaging in prohibited personnel practices. Under the MSPB, federal employees are entitled to a hearing after they are terminated, suspended, or demoted because of their performance or conduct.The MSPB process is crucial for employees who believe that their conduct did not warrant the adverse employment action taken against them. The Civil Service Reform Act mandates that federal employees are given their due process when terminated. This is to prevent powerful federal employers from engaging in arbitrary employment actions. Of course, when a federal employer takes an adverse action against an employee, there are lasting impacts on that person’s personal and professional life.

The MSPB is a complex entity, and there are many roadblocks that an employee may encounter, due to the nature of the employing agency and the processes involved. First, employees should consult with an attorney to determine whether their adverse employment action will trigger an MSPB appeal. Although it seems clear in some situations, MSPB protections are not extended to all types of federal positions. However, some common situations when an appeal is triggered are when there is an adverse action or a forced retirement. Furthermore, even though the MSPB will attempt to handle a claim within six months, the Board may also pressure the parties to settle in order to more quickly resolve the matter. A Texas employment lawyer can guide employees in effectively working through these steps.

May 8, 2018

How a Texas Employee Can Prove a Case of Employment Discrimination

by Eric Dama

In 1973, the United States Supreme Court issued a landmark employment discrimination case, McDonnell Douglas v. Green, outlining a framework for analyzing cases alleging employment discrimination. The McDonnell-Douglas test, as it has come to be known, is applied in nearly all Texas employment discrimination cases.When the Supreme Court first announced the McDonnell-Douglas test, it was in the context of a defense motion for summary judgment. In other words, the defendant filed a motion to dismiss the plaintiff’s case before it was even submitted to a jury. Essentially, the argument in a pre-trial motion for summary judgment is that the non-moving party cannot prevail at trial because, as a matter of law, their case is insufficient.

The McDonnell-Douglas test is fairly straightforward, although it can become complex in its application. First, the plaintiff must establish a prima facie case of discrimination. This normally requires that the plaintiff prove that they belong to a protected class and that the employer took some adverse employment action against them. This creates a presumption that the defendant employer engaged in discriminatory conduct.