— Wrongful Termination Category Archives — Page 2 of 3 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

“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.

The Texas Whistleblower Act: To blow the whistle or not to blow the whistle? That is the question.

January 15, 2021 | Rob Wiley, P.C.

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.

Arbitration and You: Why You Should Pay Attention If Your Employer Talks About Arbitration

December 11, 2020 | Austin Campbell

So, 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 ›

“In this economy!?”—What mitigation is, and why you need to do it!

November 6, 2020 | Austin Campbell

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 duty.

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.

Healthcare workers’ whistleblower protections under the Texas Health & Safety Code

September 17, 2020 | Austin Campbell

Over 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.

Secretly Recording in the Workplace: Can I do it? Should I do it?

July 10, 2020 | Austin Campbell

Generally, 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?

COVID-19, Furloughs, and Discrimination, oh my!

June 1, 2020 | Rob Wiley, P.C.

The 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.

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

December 4, 2019 | Law Office of Rob Wiley, P.C.

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 Due Process Rights of Texas Government Employees

October 22, 2019 | Law Office of Rob Wiley, P.C.

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.

Are Employment Handbooks Binding On Employers?

June 1, 2019 | Law Office of Rob Wiley, P.C.

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.