Articles Posted in Wrongful Termination

Austin Campbell

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.    

fadi-yousefWhat 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.

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austin-campbellUsually 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.   

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rasha-zeyadehDallas Lonestar works for the city of Palestine. Dallas Lonestar discovers that several city officials are misusing city funds. Dallas reports his discovery to the Palestine Police Department (“PPD”). The PPD notifies Palestine city officials of Dallas Lonestar’s report and begins investigating the claim.   A few days later, Dallas Lonestar’s supervisor fires him. The city alleged Dallas Lonestar was fired because of poor performance. Dallas Lonestar was never reprimanded for performance related issues and had no reason to believe his performance was lacking. In fact, shortly before being fired, he was given a glowing performance rating. Hence, Dallas Lonestar believes he was fired because he filed a report with the PPD regarding city officials’ misuse of city funds. Dallas Lonestar is angry, without a job, and wants to sue the city of Palestine. What are his rights?

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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austin-campbellSo, one day your employer asks you to sign a piece of paper that talks about a “dispute resolution” program, including “arbitration.”  Perhaps you instead got paperwork talking about arbitration with your onboarding materials when you started a new job.  Or, maybe you just got an email from your employer saying you are now subject to arbitration “as a condition of employment.”  This article takes a basic look at what these things mean and why seeing them ought to—at the very least—cause you to sit up and think about what your next move should be.  

Arbitration is basically a private court.  The parties (including employees and employers) agree beforehand to submit disputes to a private decisionmaker or decisionmakers to reach a final, binding decision.  Some arbitration programs require the parties to select an arbitrator or arbitrators from a list of candidates associated with a large dispute resolution company like the American Arbitration Association, and might apply rules set by that company.  There is no judge or jury, and the ultimate decision may be kept secret.  Appealing an arbitrator’s decision can be almost impossible, and the rules of an arbitration may be quite different than those in a court.  As a result, employees may have less of an ability to get evidence from their employer. Continue reading ›

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-campbellOver 1.6 million Texans were employed in the healthcare and social assistance industry by 2019, and that number is expected to grow steadily over the next decade.  Nursing in particular is one of the top five occupations in the state by number of online “help wanted” ads.  Because of that, it is all the more important that healthcare workers here are well-trained and competent, and also are empowered to say something when they see something that puts patient health or safety at risk.

Fortunately, the Texas Health & Safety Code provides some powerful whistleblower protections that are unique to the healthcare industry.  Unfortunately, figuring out if you fall within those protections is not always simple because the Code has so many different components.  Making things harder, Texas courts have interpreted relatively few parts of the Texas Health & Safety Code compared to other employment laws.  This article is meant to provide the reader with some basic information about some of the protections that healthcare workers (and others) have under this law, as well as limitations in the Code.

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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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rasha-zeyadehThe Coronavirus pandemic has severely impacted American workplaces. Employees in various industries have reported cuts in work hours, cuts in salary, job-loss, and instructions to work from home. While the world as we know it is changing and adapting to the “new normal,” discrimination laws remain the same. Employees are still protected against discrimination, harassment, and retaliation. This is true even if you are working from home.

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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.

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