Employees Are Harmed by Employer Pay Secrecy Policies Because They Can Lead to Pay Discrimination

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Many Texas employers tell their employees not to discuss salary information with coworkers. Sometimes this is a verbal direction. Often, the prohibition is written in an employee handbook. Sometimes, the pressure is indirect. Discussing pay is seen as indiscreet, unprofessional and pushy. These are descriptions from the past when people did not share personal information as much as they do now.

There are three problems with pay secrecy. First of all, enforced pay secrecy can lay the groundwork for employment discrimination on the basis of gender, age, race or other legally prohibited grounds. Second, banning salary discussion is clearly illegal under federal law. Third, Texas employees may find it difficult to complain about this practice, since employees can generally be fired for good reason, bad reason or no reason at all, including the all-purpose and hard-to-define bad attitude, although employees cannot be fired for illegal reasons.

Pay Discrimination is Illegal

Workers need a strategy or two to end the practice of pay secrecy. Each employee’s strategy may be different, but everyone’s strategy should include some solid information about prevailing pay, tips on salary negotiation, and accurate information about Texas and federal law and legal trends. The employment lawyers at Kilgore & Kilgore know how to counsel you in your efforts to achieve a fair wage for the work you do. If you are experiencing pay discrimination at your workplace, click this link Contact Kilgore Law. We offer a free evaluation of the facts of your case.

Pay Secrecy Historically and Now

Just to set the record straight, efforts to prevent employees from sharing salary information are illegal. Since 1935, the National Labor Relations Act has prohibited pay secrecy policies in most situations. These protections extend to unionized workers and non-collectively bargained employees as well.

A variety of federal laws and provisions of the Texas labor code prohibit certain employment practices, including pay policies, which discriminate on the basis of race, color, disability, religion, sex, national origin, or age. The Texas Equal Pay Act specifically provides that women employed by the state of Texas must be paid the same as men performing the same kind, grade, and quantity of service, and that no distinctions in compensation may be made based on sex.

Still, gag rules are remarkably common. Not only are employees unaware that the request for silence about salaries is unlawful, but their employers are often unaware as well.

The Harm of Secrecy and Pay Discrimination

Many people today know little about the story of Lilly Ledbetter. The Lilly Ledbetter Equal Pay Act of 2009 allows people who have suffered from pay discrimination to seek redress under federal laws against discrimination. The part of the story that many people forget or never knew about is that the law overturned a U.S. Supreme Court ruling that denied Mrs. Ledbetter back pay for a period of almost twenty years. Mrs. Ledbetter lost her case in the U.S. Supreme Court because she did not sue in time to preserve her claim.

Mrs. Ledbetter never knew that her male coworkers made more than she did. It was a secret. She found out only as she was nearing retirement when someone slipped her an anonymous note. Furthermore, Mrs. Ledbetter never collected back pay. The damage that had rolled on over her many years of employment affected her retirement savings, her Social Security payments and her ability, now at age 82, to afford even modest things.

Perhaps for historical reasons, pay secrecy policies and discriminatory wage schemes affect women disproportionately. According to the Bureau of Labor Statistics, women earn 76 percent of what men earn. The disparity is even greater for black women and Hispanic women. However, the laws protecting workers from wage discrimination and secrecy policies are generally race, age and gender neutral. The protection afforded by law is clear and very broad.

What You Should Do if You Have Been Warned Not to Talk About Salary in the Workplace

The first step is to assess and document your situation. It is important to understand that wage secrecy policies are actionable, separate and apart from pay discrimination practices. The remedies are also different.

You and your colleagues are likely aware of pay discussions that are prohibited. If a supervisor or HR manager advises you verbally not to discuss your pay or your raise with anyone, try to make contemporaneous and complete notes about this conversation restricting your discussions. Try to record the date, names and titles of individuals involved in the discussion, and details of the conversation. Keep your notes at home, not on your work computer.

If you want to discuss this situation with coworkers, you should do so only with trusted individuals and only outside the workplace. If a statement about pay secrecy is included in an employee handbook, get a copy of the employee handbook and keep it at home. Understand that supervisors and certain management employees may be prohibited from having these conversations. Remember too, that some personnel issues, including financial or health information, are legitimately protected from public disclosure.

Pay Discrimination Attorney’s Meeting

If an attorney is able to take your case, you and your attorney may determine that the best choice is to file a charge with the National Labor Relations Board. Some disputes are resolved before they get to a hearing. On the other hand, it may be better to pursue less adversarial options, at least at first. Many employers are genuinely unaware of the requirements of state and federal laws with respect to this issue.

Pay practices that are thought to be discrimination in a legal sense may be harder to discover, particularly if your employer has been successful in enforcing a pay secrecy policy. The advice of your attorney will be invaluable in determining whether your employer is engaged in pay discrimination on prohibited grounds and, if so, which avenues you may have for further action.

Outside Sources of Information to Help Define Pay Discrimination

Knowledge is power, so make sure that you do your research. It does not have to be limited to information available from coworkers. A number of online sources of salary information publish current data. Glassdoor.com is among the best known. Some national employment agencies let you customize your research by job title, state and city. At least one offers information about salary range and midpoint.

A number of professional organizations publish the results of annual salary surveys that are specific to location. Lawyers have done this for years. Some large employers, like universities, voluntarily publish salary information in the interest of fostering a culture of honesty and trust. None of these are necessarily infallible, but taken together they may provide a useful context for salary negotiations.

Negotiating a Pay Raise

If you are uncomfortable negotiating your salary, you’re not alone. Many people feel this way. Many agencies provide useful tips about how to have awkward conversations. Among these are Ladies Get Paid, WorldatWork and the National Women’s Law Center. Any of these may, in fact, lead to other resources that are specifically relevant to your situation.

Legislative Trends Regarding Pay Discrimination

Another aspect of the pay equity environment that you should be aware of has to do with legislative developments outside of Texas. Among these are state law initiatives that would, for example, require employers to disclose not only broad salary ranges for particular positions, but the narrower salary bands within a pay grade. The latter may be a far more useful piece of information for negotiating purposes than a range or particular figure you have in mind, say $50,000, for instance.

Some jurisdictions also prohibit inquiries about existing salary at the early interview stage of interviewing for new hires. This can be especially valuable for mid-career interviewees whose negotiations may otherwise be hampered by a history of pay discrimination through underpayment.

Our Employment Lawyers Can Help Employees Who Experience Pay Discrimination and Pay Secrecy

The Texas employment lawyers at Kilgore & Kilgore can help you assess your legal situation and advise on the best strategy for tackling this tricky situation. Click here to learn more about Employment discrimination, secrecy policies and workplace retaliation. We offer a free review of the facts of your case. Use this link to reach us Contact Us.

Employees Stiffed of Overtime Pay by Misclassification – Double Back Pay Awarded Because of Bad Faith

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In a recent case, Novick v. Shipcom Wireless, Inc., the Fifth Circuit Court of Appeals affirmed that Texas employees who are shorted on overtime payments are entitled to double back pay – both the unpaid overtime they are rightfully owed AND liquidated damages in the same amount. The liquidated damages are intended to mitigate the likely consequences of a bad faith failure to pay employees properly in the first place.

This is a significant victory for Texas workers. The potential for a generous recovery breathes new life into wage and hour lawsuits that might otherwise settle for less than permitted under the federal Fair Labor Standards Act (FLSA). Make no mistake – misclassification, such as when hourly employees are treated as salaried, or employees are wrongly classed as independent contractors – is a growing form of wage theft. Daryl Sinkule, who is a member-partner at Kilgore Law, played a significant role as lead counsel in finding justice for Justin Novick and other employee plaintiffs.

Our Employment Lawyers Understand the Power of Overtime and Other Misclassification Claims under the FLSA

If you believe you have suffered from misclassification at work as a salaried employee or independent contractor and missed out on overtime or other benefits that you were entitled to, bring your case to the employment lawyers at Kilgore & Kilgore. If you want to know your rights under the federal FLSA statute or Texas law, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website, and send it in. We are happy to provide a free evaluation of the facts of your situation.

Employer Eliminated Overtime Through Employee Misclassification

Shipcom, a supply chain management and technology company, needed to hire quickly in 2013 after it was awarded a major contract by the Department of Veterans Affairs. Justin Novick and others were hired as salaried employees to train hospital clients on the use of the Shipcom system. They worked long hours, but Shipcom treated them as exempt employees in order to avoid paying overtime.

A subsequent internal audit in 2015 led Shipcom to reclassify some of these workers as hourly employees. This employer paid some of the workers back pay equal to the unpaid overtime plus five percent. But Mr. Novick had already left the company and got nothing. The workers later sued, arguing that they had been victims of misclassification under the FLSA. Claiming that the misclassification as salaried employees was done in bad faith, the employees sought liquidated damages in addition to unpaid compensation. A jury issued a verdict in favor of the employees, and the Fifth Circuit ultimately upheld the trial court’s rulings on various evidentiary issues, resulting in a victory for the employees.

How Does a Misclassification Result in an Overtime Lawsuit?

The FLSA requires, among other things, states that employers pay employees the federal minimum wage (currently $7.25 per hour) and time-and-a-half for every hour they work in excess of 40 hours in a workweek. It should be noted that some states have adopted wage and hour laws with a higher minimum wage and additional protections for employees, but Texas is not among these. Texas uses the federal wage standards.

The FLSA also contains a number of exceptions to these requirements. Independent contractors, for example, do not get overtime because they are not viewed as employees. Other exceptions exist for executive, administrative, professional, computer and outside sales employees. These employees are often referred to as exempt employees (as in exempt from legal protection).

In order to fit into any of these categories, an employee must be paid a salary and also meet certain tests. The criteria vary slightly for each of the different white-collar exemptions. To fall within the administrative exemption, as the Shipcom employees were originally classified, an employee must:

  • Earn a salary of not less than $684 (periodically updated) per week;
  • Perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  • Exercise discretion and independent judgment with respect to matters of significance. This must be a primary duty.

Before Mr. Novick went to trial, however, Shipcom had already determined that the set of employees hired to train hospital workers in the use of the new management system really should always have been treated as hourly employees because they did not qualify for the administrative exemption. It had already offered unpaid overtime and an additional five percent to some of these workers.

Several issues remained, however. The most important of these was whether the employees were also owed liquidated damages, in addition to the back pay. This issue turned on the question of whether Shipcom simply made an innocent mistake when it misclassified the workers as administrative in the first place, or whether it acted in bad faith.

Why the Offer of Back Overtime Pay Was Not Enough

At the outset, it may be possible to muster some sympathy for the employer. After all, the argument might go as, Shipcom found a mistake and tried to fix it. That is the state of the law when the mistake was just an innocent error in the first place. But when the attempt to patch up a problem is not innocent, but perhaps an effort to underpay and then avoid detection, that falls below the standard set by the FLSA. Employers can avoid double damages for unpaid overtime only if they can affirmatively show that:

  • their actions were taken in good faith; and
  • they had reasonable grounds for their belief that they were complying with the FLSA.

At trial, Shipcom offered little to no evidence of either of these elements. The jury consequently found that Shipcom had acted in bad faith and awarded full liquidated damages. The trial judge found no reason to second guess the jury.

Unpaid Wages Causes Emotional and Financial Distress for Employees

From a practical point of view, this also makes sense for employees. An employee who is underpaid may find him or herself unable to meet regular expenses. The damage done by a missed mortgage or car payment is hardly undone when an employer catches up and makes wage payments months or years later.

FLSA Is a Powerful tool to Protect Employee Rights

The FLSA is about much more than unpaid overtime. Since 1938, this law has been used by lawyers to rescue workers caught up in a variety of wage, hour and working condition disputes. Other issues that are addressed by the FLSA include:

  • The rights of nursing mothers in the workplace;
  • The misclassification of employees as independent contractors, now famous through the recent litigation involving Uber drivers, truck drivers and contract food delivery people;
  • Undercounting of time for hourly-paid workers, especially those who work in caregiver jobs, either in a client’s home or in a residential care facility; and
  • Failure to pay minimum wage in the construction industry, where the workforce is fluid and individuals may have immigration concerns.

Learn More about FLSA, Employee Misclassification Claims and Unpaid Overtime Lawsuits

If you have been shorted on overtime pay or other legally protected benefits because you were wrongly treated as a management employee or an independent contractor, or you simply were not paid overtime pay for hours you worked in excess of 40 in a work week, the employment law attorneys at Kilgore & Kilgore may be able to help you. We understand that these lawsuits can be about far more than just collecting back pay. Click the following link to learn more about our representation in wage and hour cases. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Whistleblower Claimant in Texas Wins Wrongful Termination Lawsuit Worth More Than $2.5 Million

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Disgruntled employee is how a whistleblower is often described. But another version of the same facts is that a public employee sought to expose illegal and dangerous conduct to protect the public. He or she, such a story might go, suffered retaliation and wrongful termination and was subsequently blackballed from future jobs. It’s no myth, of course, this really happened in Texas. It’s unfair and not at all unusual.

If a complaint qualifies under the Texas Whistleblowers Act, however, such wrongful termination is more than unfair. It’s illegal, and workers may have important legal protections.

Wrongful Termination for Filing a Whistleblower Complaint

Carter v. City of Abilene is a recent case in point. Not only did Chad Carter win his wrongful termination lawsuit, but his award was a jaw-dropping $2 million in compensatory damages ON TOP of lost earnings, benefits, and attorneys’ fees. What is so unusual about this award is that the jury awarded such a large amount of compensatory damages, which was to compensate Carter for mental, emotional pain or anguish, loss of enjoyment of life, or other non-economic losses. But only those employees who comply with the requirements of the Whistleblower Act are shielded from retaliation. If you find yourself considering filing a whistleblower claim, protect yourself from the outset against illegal employer activity by reaching out to an employment lawyer before you do anything.

Our Employment Lawyers Can Help Employees Who Experience Wrongful Termination in the Workplace

If you want to make a claim under the Texas Whistleblowers Act, the Texas employment lawyers at Kilgore & Kilgore can help you assess your legal situation and fight for your rights should you experience retaliation or a wrongful termination from your job. Click these links to learn more about whistleblower protection and wrongful termination. We offer a free review of the facts of your case. Use this link to reach us Contact Kilgore & Kilgore.

The Whistleblower Suffered Retaliation, Then Wrongful Termination

Chad Carter worked as an engineer for the City of Abilene. He complained to city officials and ultimately to the Texas Board of Professional Engineers that the City of Abilene did not have a professional engineer overseeing and inspecting certain road construction projects. Instead, the City assigned those tasks to regular city employees in violation of the Texas Engineering Practice Act and the city’s own ordinances. The City then fired Carter, citing performance and attitude issues.

Shortly thereafter, Carter filed a claim under the Texas Whistleblower Act. The City of Abilene never contested the substance of Carter’s complaint – that the road projects were inadequately overseen and inspected. But, for years, it raised procedural objections that the underlying complaint was made to the wrong people. Therein lies the rub with the Texas Whistleblowers Act. There are i’s to be dotted and t’s to be crossed.

The Texas Whistleblower Act and Wrongful Termination

Under the Texas Whistleblower Act, a public employee who experiences retaliation may be entitled to reinstatement to his or her former position, compensation for wages lost during the period of suspension or termination, compensatory damages and reinstatement of fringe benefits and seniority rights. Texas law can provide powerful protection against wrongful termination – the utterly unsurprisingly way that many employers respond to allegations of illegal conduct.

To be protected under the Texas Whistleblower Act:

  • an employee must have believed that another public employee or
    a government entity violated the law; and
  • that belief must have been objectively reasonable
    given all the facts and circumstances.

In other words, the employee does not have to be right, but the complaint must be made in good faith and be well-founded. Being right, however, is pretty good evidence of both those things. In addition, reports must be made to an appropriate law enforcement entity, which is one that the employee reasonably believes is authorized to regulate under or enforce the law allegedly violated, or to investigate or prosecute violations of criminal law generally.

Texas courts have held that an internal report of illegal activity to someone within the public entity (which is what Carter did first) does not qualify as a report made to an appropriate law enforcement authority. The question for litigation was whether the Texas Board of Professional Engineers qualified as a law enforcement authority or whether Carter reasonably believed that it did.

The lawsuit took a long time, but Carter ultimately prevailed. His $2 million compensatory damages award may ultimately be reduced under Texas law. Carter insists that he did not do it for the money, however. He wanted people to know what was going on. What this bodes for future retaliation or wrongful termination lawsuits based on the Texas Whistleblowers Act remains to be seen, but it is certainly a hopeful sign.

Employment-at-Will, Wrongful Termination and Whistleblower Protection

The unfairness of firing someone trying to protect public safety can seem so clear that it may be hard to understand why a retaliation or wrongful termination lawsuit can be hard to win. A little background in employment law is helpful. Texas, like many states, subscribes to the theory that an employer may fire an employee for a good reason, bad reason, or no reason at all. This is called employment-at-will, and it is the default rule.

There are, however, a number of exceptions to the basic employment-at-will doctrine based on violations federal or state statutes. The Texas Whistleblowers Act is one of these exceptions because it explicitly protects whistleblowers from retaliation, including wrongful termination of employment.

If, for some reason, either substantive or technical, a complaint about illegal employer activity fails to qualify under the Whistleblower Act, then the default employment-at-will rule applies. The protections of the law vanish, and whistleblower becomes no more than a disgruntled employee – a former employee.

“If you come at the king, you best not miss.” Mangled for present purposes, that might easily be “if you come as a whistleblower, you best not miss.” This is not a do-it-yourself action. Whistleblowers need legal counsel before they blow the whistle.

It’s Difficult in Texas to Make a Whistleblower Claim

The Texas Whistleblowers Act has had plenty of critics in the 30 years since its adoption. Among the impediments they identify for those who fear or have already suffered retaliation or wrongful termination:

  • No information about who to report problems to: As in Carter’s case, whistleblowers are protected from retaliation only when they report problems to a law enforcement officer. Many government employee policies describe only in-house reporting structures, which do not qualify for whistleblower protection. These employees have no easy way to know what to do.
  • No form: There’s no form to properly document an official complaint and little information about how to file one.
  • No information about the kind of offense that can be reported: The problem reported must be a violation of the law. Not all employees who are in a position to see wrongdoing are fully aware of the ins-and-outs of the law. Reports of financial irregularities, for example, may not be covered.
  • No help: No Texas agency oversees the law or helps an employee who is trying to report possible whistleblower violations.

When someone is disturbed about goings-on at work, getting in touch with a lawyer would be very good idea. The best time for an employee to contact a lawyer about the possibility of workplace wrongdoing is at the very beginning, even before any complaint process is begun. A complaint will trigger a response. Expect it and be prepared.

The best time to contact an employment lawyer is as soon as possible. The attorneys at Kilgore & Kilgore have extensive experience and insight about handling employee claims.

Learn More about Whistleblower Claims, Retaliation and Wrongful Termination

Click on the links in this sentence if you wish to know more about whistleblower claims, retaliation, and wrongful termination. Contact us to request a free evaluation of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Know What to do Before You Get Fired to Protect Your Employee Rights Should You Wish to Make a Wrongful Termination Claim

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If you suspect that you are about to be fired, it is wise to tamp down the anger and worry and understand your employee rights, in particular how to support a claim of wrongful termination, discrimination, retaliation or other possible legal action available to you. This is a tough situation, but you are in a unique position to protect your professional reputation, earnings, and benefits. An employment lawyer can help cushion the blow, so reach out to Kilgore & Kilgore.

Our Employment Lawyers Can Help You Protect Your Employee Rights and Pursue a Wrongful Termination Lawsuit

If you believe that you are about to be fired or have been fired in violation of the law, the Texas employment attorneys at Kilgore & Kilgore can help you determine what legal remedies may be available to you and help you fight for your employee rights. Click the following link to learn more about wrongful termination Wrongful Termination. We offer a free review of the facts of your case. Use this link to reach us Contact Kilgore & Kilgore.

Protect Your Employee Rights in an Employment Termination Scenario

Perhaps the signs have been there for a while – negative performance reviews, a frosty relationship with your boss, a cutback in responsibilities. Or perhaps a sudden management change or new cost-cutting initiatives have left everyone scrambling. Either way, if you think you are about to be fired, you should take steps now to protect yourself, your finances, and your professional reputation.

Most firings feel unjust at the time. In Texas, a termination is illegal only if certain criteria are met. For a termination to be illegal, it generally requires that that the former employee be able to show that a statute has been violated, a contract breached or, in rare instances, that the way the employee was fired was so outrageous or abusive as to constitute a tort, like assault.

Suing for wrongful termination is not the only action an employment lawyer can take to protect your employee rights in this situation. It may be helpful to think about this as a three-step process. There are things you can do to protect yourself before you are fired. There are things you can do to preserve your rights as you are being fired. And, there may be steps you can take after the fact.

How a Typical Termination Goes Down

You may be called into your supervisor’s office, there may be a human resources person present, you may be told that your performance has not met company standards or something similar, and that your employment is ending immediately. You may be asked if you have any questions. You may be asked to sign a release or other document. While this is happening, you may be locked out of your work computer and voicemail. Key codes may be changed. Then, the human resources person may escort you to the door or elevator. You may or may not have the chance to collect personal effects. If not, they may be sent to your home address within a few days. You may not have a chance to say goodbye to anyone. Most firings happen on a Friday. There you are – on the street and in shock. Go somewhere quiet, write down detailed notes about what happened – everything you can think of – and go home. Joe’s Bar & Grill is not a good idea.

Tips to Minimize Harm Before you are Fired

Prepare and defend yourself to the extent possible should you anticipate a firing in your future. Here are some actions to consider.

  1. Try to address causes for any dissatisfaction with your performance before they become reasons to fire you. It’s a good idea to ask your supervisor and human resources representative for frank feedback.
  2. Take early steps to prepare your job search. These may include lining up good references and updating your resume. Have lunch with friends in the same field to find out who is hiring. It is best to be discreet. Visit job posting sites. The truth is, though, it is always smart to stay abreast of your industry and to maintain contacts who may be helpful and vice versa. If appropriate, consider joining professional organizations and work those contacts. Stay active and visible in your field.
  3. Prepare 30-second and 60-second talks about you, your abilities, reputation, and skills so you are ready to articulate your strengths when people inquire at networking events.
  4. Gather and save your professional records. These may include offer letters and contracts, performance reviews, proof of raises and bonuses, work schedules, job assignments and any praise that have received from managers, clients, colleagues, business associates, and vendors.
  5. Keep a log of incidents in which you experienced harassment, discrimination, retaliation, or that you believe may support a claim of bias, including similar actions toward co-workers.
  6. Discreetly clean out personal information from your workspace, including passwords to personal emails and social media sites, etc. All records relating to your employment situation should be kept at home, not in the office.
  7. Schedule doctor and dentist appointments while you still have insurance.

Minimizing Harm during the Exit Interview

There may be a few things you can do, even during that awful exit interview, to minimize the damage that losing your job causes, such as:

  • First, try to say as little as possible.
  • Second, do not sign anything. Practice the phrase, ”I’d like to have the chance to review this with my lawyer” so that rolls off the tongue even when you cannot engage your brain.
  • Third, if your termination involves a non-disclosure agreement, non-compete agreement, confidentiality agreement, or another type of separation agreement, review it carefully with an employment lawyer. These documents may have enormous impact on your career, are often negotiable, and may not be legal or enforceable as written.
  • Fourth, since you may see the situation coming, consider this: your employer may want something from you, like a release from liability or a non-compete agreement. Talk to an employment lawyer about the possibility of having an ask of your own, like a severance agreement or an enforceable agreement about a positive or neutral reference. Work out your strategy in advance. Toss negotiations to your lawyer. But, make your ask during that interview. Tell the person conducting the exit interview who will be in touch with the company regarding your situation.
  • As soon as you leave the exit interview, preferably within 20 minutes of leaving, write down detailed notes on everything that happened and what was said. Contemporaneous notes may be helpful later.

Deciding if your Firing Was an Illegal Wrongful Termination

Employment at will – Texas, like many states, subscribes to the theory that an employer may fire an employee for a good reason, bad reason, or no reason at all. Of course, employees may quit under the same rules. This is called employment-at-will, and although it may look fair on paper, it actually is disadvantageous to employees.

Violations of law and public policy – There are, however, a growing collection of exceptions to the employment-at-will rule based on federal or state statutes. Here are a few:

Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and Texas Labor Code Chapter 21 (enforced by the Texas Workforce Commission’s Civil Rights Division) all prohibit employment discrimination, including termination, on the basis of an employee’s race, color, national origin, religion, sex, age, and disability. Pregnancy discrimination, sexual harassment, or other workplace harassment based on a protected characteristic are also prohibited. The point of collecting professional records of promotions or accolades or keeping a log of potentially biased or harassing incidents is to support a claim that an adverse employment action or termination was based on a prohibited reason.

Under the Corporate and Criminal Fraud Accountability Act of 2002 and Title VIII of the Sarbanes-Oxley Act of 2002, an employee of a publicly traded company who is terminated as a result of reporting fraudulent activity, environmental law abuses, or safety violations may be able to sue for illegal wrongful termination. Whistleblowers have also succeeded in pursuing wrongful termination and retaliation claims under the False Claims Act for reporting instances of Medicare fraud cases or other illegal acts against health care institutions.

In Sabine Pilot Service, Inc. v. Hauk, the Texas Supreme Court ruled that an employer in Texas may not terminate an employee for refusing to commit an illegal act. If someone is terminated solely because s/he refuses to commit a crime, they may be able to sue for illegal wrongful termination.

In a more general way, courts have been willing to look to the public policy of the state and federal governments to determine if the termination of an employee violates the interests of the general public. This might include being fired solely for filing a worker compensation claim or being fired for serving jury duty or for complying with a valid subpoena, for example.

Breach of contract – An employee with a written contract may be able to bring a breach of contract lawsuit when the terms of the agreement are violated, including situations where an employee is allegedly fired for cause in order not to pay the employee severance set forth in the employment agreement. Or an employer may refuse to pay earned incentives or bonuses in breach of an employment contract.

Tort claims – In even rarer cases, where the employer’s conduct toward the employee is particularly outrageous – security guards literally tossing a fired employee onto the sidewalk, or the boss cursing up a storm and flinging a stapler which hits the employee – an employee may have a tort claim for assault or intentional infliction of emotional distress.

Realistic Assessment of Wrongful Termination Claims

The employment-at-will doctrine is a stumbling block for wrongful termination lawsuits. Because the facts surrounding a termination are so often ambiguous, only some employees are successful in wrongful termination lawsuits. But that does not mean that the employee has no legal recourse. An employment lawyer may be able to cushion the blow considerably. The employment lawyer may help in the negotiation of a settlement, a severance agreement, or an enforceable agreement about references. Even if the facts are not sufficient to support a wrongful termination lawsuit, they may support another cause of action. Your finances and professional reputation are worth defending and you should take advantage of the opportunity to review your situation with legal counsel.

Read More about Wrongful Termination, Discrimination, Harassment, and the Other Ways an Employee Can Legally Defend His or Her Rights

If you have questions about your employee rights, contact us. Problems at work are common. Click here to read more about how our employment lawyers help resolve employee claims of all kinds Texas Employment Lawyers. Contact us to request a free evaluation of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Workplace Harassment and Discrimination are Illegal – Is it Legal to Fire LGBTQ People in Texas?

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The answer is complicated, but employees have many ways to defend themselves if they suffer a wrongful termination, workplace harassment or discrimination. Federal, state and local laws may be on the side of LGBTQ people in ways that you may not expect. In addition, a Supreme Court decision expected in the summer of 2020 may change the legal landscape in fundamental ways that will affect LGBTQ rights in the U.S.

The Fifth Circuit Court of Appeals, which includes Texas, has not interpreted Title VII of the Civil Rights Act of 1964 as a protection of the employment rights of LGBTQ people. Also, there is no state law in Texas that protects the employment rights of LGBTQ employees. However, there are certain local laws that protect specific subsets of employees, including public employees, from being fired based on sexual orientation or gender identification.

The long answer is far more complicated and perhaps more hopeful. Many believe that the door is open for creative advocacy — especially because of some recent Texas court decisions, based on older Supreme Court precedents, regarding discrimination of traditional sex stereotyping. Dicta in other cases suggest that change is bubbling beneath the surface of a (so far) consistent line of decisions that withhold employment rights for LGBTQ employees on a statewide basis. And the legal landscape could change dramatically by early next summer because of a trio of cases now pending before the Supreme Court.

Our Employment Lawyers Can Help You Fight a Wrongful Termination, Workplace Harassment and Employment Discrimination

If you believe that you were fired because you are a gay or transgender or if you suffer discrimination or harassment on the job, don’t give up. The Texas workplace harassment attorneys at Kilgore & Kilgore will fight for your rights. Click the following link to learn more about our representation in employment law cases: Texas Employee Advocacy. For a free review of the facts of your case, use this link to contact us through our website Contact Kilgore & Kilgore.

Federal, Texas and Local Employment Law on Workplace Harassment Today

Civil rights law in Texas is a multi-layered affair, made of federal, state and local precedents. Below is a brief explanation of employment law:

Federal law – Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

But what does sex mean in this context? The question would be hilarious if it didn’t affect the legal rights of hundreds of thousands — maybe a million – workers in Texas. We can assume that, in 1964, Congress never meant to include in this statute sexual orientation or gender identification. At that time, Congress was grappling with race.

The U.S. Department of Justice has taken the position that under Title VII today, sex should still be understood as it was in 1964.The federal Equal Employment Opportunity Commission has taken the opposite stance, stating that discrimination based on sexual orientation and gender identity is prohibited.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

The Federal Circuit Courts of Appeal are also split on what sex means. In February 2019, the 5th Circuit, which is the relevant authority for Texas, reaffirmed a 40-year-old holding that Title VII does not prohibit employers from discrimination against employees because of sexual orientation. On the other hand, the same circuit, relying on a 1989 Supreme Court precedent, held that Title VII prohibits sex stereotyping (requiring men and women to conform to their expected gender roles) when it results in workplace favoritism toward one sex over the other. That Texas case involved a situation where a male supervisor harassed his effeminate male subordinate because he did not conform to the supervisor’s gender stereotype of “rough iron workers.” The federal court for the Southern District of Texas, in a non-binding aside in a LGBTQ discrimination case, wrote that federal law prohibiting sex discrimination applies to sexual orientation and gender identity. Sex is complicated, even under federal law.

State law – State laws may be more, but never less, protective of employment rights than federal law. Twenty-one states and the District of Columbia have enacted laws that explicitly protect the employment status of gay and transgender workers. Texas has not.

Local law – Local laws may similarly be more protective of LGBTQ and transgender people than states or the federal government. Dallas, Fort Worth and Austin, for example, protect individuals from discrimination on the basis of sexual orientation and gender identity who work in private or city employment. Other localities limit protections to city workers or exclude gender identity as a prohibited basis for discrimination. The penalties for violating these local rules are often relatively minor.

State Law in Texas on Workplace Harassment Today

So, one can conclude that the state law in Texas today for LGBTQ workers is not as good as it could be, not awful, but completely in need of clarity. Enter the Supreme Court.

The Cases before the U.S. Supreme Court

On October 8, 2019 the Supreme Court heard oral arguments in three cases that could clarify the application of Title VII to the employment rights of LGBTQ employees. In the ordinary course of affairs, those decisions would come down in the late spring or early summer of 2020, right in time for election fever. Below is a brief summary of these cases:

Altitude Express Inc. v. Zarda, a New York case, was brought by a skydiving instructor, Donald Zarda, who said he was fired because he was gay. His dismissal followed a complaint from a female customer who voiced concerns about being tightly strapped to Zarda during a tandem dive. Zarda, hoping to reassure the customer, told her that he was “100 percent gay.” The full U.S. Court of Appeals for the 2nd Circuit ruled for him. Sadly, he died in a base-jumping accident before the case came to the Supreme Court.

In Bostock v. Clayton County, Georgia, the U.S. Court of Appeals for the 11th Circuit ruled that Title VII did not protect Bostock’s employment rights on the basis of sexual orientation. Gerald Bostock ran a program that recruited volunteers to advocate for abused and neglected children. He was fired after he joined a gay recreational softball league, from which he also recruited volunteer advocates. Bostock insisted that, contrary to pretexts offered by his employer, he was fired because he is gay. His lawsuit was dismissed because lower courts ruled that Title VII did not cover sexual orientation.

Bostock and Altitude Express are being considered together by the Supreme Court, as bearing on the same narrowly-defined legal question.

In R.G. and G.R. Harris Funeral Homes v. EEOC, the Supreme Court will take up the issue of transgender rights under Title VII. Aimee Stephens, who had presented as a man prior to 2013, was a funeral director at the Harris Funeral Homes. She suffered from gender dysphoria — a mismatch between the sex assigned at birth and a person’s gender identity — and had decided to transition. Before surgical procedures, her doctors suggested that she live for a year as a woman.

She informed her employer that, on her return from vacation, she would present as a woman in appropriate women’s business attire. She was fired before she could return. The EEOC took the case against the funeral home. The Eastern District Court of Michigan held for the funeral home, but the 6th Circuit Court of Appeals reversed that decision, holding that Title VII protects transgender people.

Much ink has been spilled about what the Supreme Court may do with these cases. Some focus on the possible effect of Justice Kennedy’s retirement, or try to read the tea leaves of Justice Kavanaugh’s social attitudes. Some in the audience at oral argument thought that a split decision might possible, especially since the three cases seem to be considered as two. Could the Supreme Court extend Title VII protections to gay workers, but not transgender people? None of this speculation is necessarily useful. But what may generate more light comes from the 2nd Circuit Court of Appeal’s articulation of three possible theories under which an advocate might argue that Title VII should cover gay or transgender employee rights. It is particularly intriguing that some of the 5th Circuit’s thinking about sexual stereotyping seems similar.

Three Theories

In Altitude Express, the 2nd Circuit outlined three rationales under which a gay employee might raise sexual orientation discrimination under Title VII:

  • the discrimination is motivated at least in part because of an employee’s sex;
  • the discrimination is based on sex stereotyping and assumptions about how each sex can or should be; and
  • the discrimination is based on “associational discrimination” and motivated by an employer’s objection to romantic relationships between people of particular sexes.

Will the Supreme Court find any of these theories compelling in any or all of the three cases it has chosen to consider? The first point has a certain literal, textual appeal. If Sue marries Bob, her boss is likely to congratulate her. If Bill marries Bob, Bill may get fired. What is the difference between Sue and Bill? Their sex — the discrimination is motivated by sex. However, as the stricter constructionists may believe, Congress in 1964 probably meant biological sex as determined by physical characteristics. The current administration’s rumored interest in a regulatory redefinition of sex to refer only to DNA evidence could scramble this.

The second point above has some strong Supreme Court heft behind it under Price Waterhouse v. Hopkins. It’s a second line of authority. The 5th Circuit is already mulling this.

The third point above is derivative of the first. The Supreme Court’s decision in Obergefell v. Hodges found that the right to marry is guaranteed to same-sex couples by the Fourteenth Amendment and casts a proverbial “cloak of protection” (or to use Justice Douglas’s language, “a penumbra”) around associational relationships. It is not clear how this third theory might apply to Aimee Stephens. This is concerning because transgender people are among the most vulnerable to employment discrimination, the resulting poverty, ill health and even workplace violence.

Sexual Orientation and the Law – Strategy and Tactics

This lack of certainty makes the disputes about employee rights for transgender and LGBTQ workers difficult. On the other hand, the layered nature of the law means there are different legal avenues to pursue. Whatever news comes down in May or June of next year, there are options. Here is a brief summary:

  1. If the Supreme Court decides that Title VII protects the employment rights of gay and transgender employees, then that is the law of the land. State and local authorities may try to limit the meaning of employment rights, but that looks like a losing cause;
  2. If the Supreme Court decides to protect gay workers, but not transgender workers, there are still options.
    1. The first option is creative advocacy based on existing Supreme Court cases, especially on the basis of gender stereotype precedents.
    2. The second option is federal legislative action to amend Title VII. The U.S. House of Representatives has passed the Equality Act, which would accomplish this task, but its fate looks dim in the Senate.
    3. The third option is state legislative action to explicitly protect transgender people. Ditto for strengthening protections at the local level.
  3. If the Supreme Court decides to protect neither gay nor transgender employees, Texans will be in no worse position than they are today. The remedies are much as outlined above, but with a broader focus.

Curious About Employment Discrimination, Workplace Harassment and Wrongful Termination?

If your employment rights were violated, if you suffered a wrongful termination, and you are gay or transgender, take heart. You are not alone. There are many legal remedies for these forms of abuse. Click this link to read more about our employment law practice Employment Retaliation. Going public about employment rights may help you protect yourself and others. Contact the employment law attorneys at Kilgore & Kilgore for a free evaluation of the facts of your case. Call or contact us by clicking here and sending us a contact request form Contact Kilgore & Kilgore.

What Workers Should Expect About the Privacy of Employee Communications – How They Can Protect Their Employee Rights

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Employee records and employee communications are stored and shared electronically almost universally now. Texas and federal laws have played catch-up with technology in defining the rules as to who, including the employee and the employer, has a legitimate interest in knowing about workers. In other words, what information should an employee reasonably expect to share and what an employee may keep to itself. Considering the growing interest in protecting data, what can an employee do when the employer crosses the line or fumbles the issue so badly that other people take your data, even possibly about your non-work life? So far, what Texas employees who work for private employers have are some very fact-and-circumstance-specific rules, sometimes organized around the kind of information at risk, and sometimes organized around the means of communication, or a mix thereof.

Many employees are concerned about the privacy of their personal phone calls, texts, emails and social media posts at work. It’s good to understand employee rights because employers have broad, but not unlimited, rights to monitor communications that make use of employer-owned phones, computers and networks. Employees have the right to expect that personal data is protected. Learn how you can protect your employee communications.

Our Employment Lawyers Can Help You Protect Private Employee Communications

If you believe that your right to keep personal information and personal employee communications private was violated by your employer, the Texas employment attorneys at Kilgore & Kilgore may be able to help. Click the following link to learn more about our representation of employment rights in the workplace: Employee Rights in the Workplace. Use this link to contact us through our website for a free evaluation of the facts of your case: Contact Kilgore & Kilgore.

Employee Rights Regarding Phone Calls

Under the Texas Anti-Wiretapping Law, an employer commits a second-degree felony when it intentionally intercepts a wire, oral or electronic communication without consent. The critical concept is consent. Since Texas is a one-party consent state, a phone conversation may be recorded with the consent of one party, such as a supervisor, without the consent or knowledge of the other person on the phone, including an employee. Remember that this may include calls placed from a private phone to an employer phone or vice versa.

Under federal anti-wiretapping law, an employer may monitor its own telephones to protect its system from being misused. If employers do not give employees prior notice that all phone conversations are monitored and an employer eavesdrops even after it is apparent that a phone conversation is private, an employee may have an invasion of privacy claim. Many employers solve this problem by giving notice in an employee handbook.

The bottom line: You should assume that calls placed to or from a work phone are not shielded by privacy laws. There are exceptions, but it may take litigation to enforce these, and by then, of course, your information may have been compromised.

Employee Communications on Workplace Computers

Texas law generally prohibits unauthorized access of computers, their networks, and their systems. However, an employer may access a company-owned computer even if it is in the possession or control of an employee. This right extends to an employee’s use of a private email account protected by a personal password, using the company email system and stored on a company-owned computer. The key concept is employer ownership of the hardware, software or the system. The issue can become far more complicated, however, when an employer encourages employees to use their own electronic devices at work or during working hours.

The takeaway: An employee has only very limited, if any, reasonable expectation of privacy when using a company-owned computer, regardless of location or account accessed. Employers are very often advised to adopt communications guidelines that discourage the use of personal devices for work purposes, simply to avoid confusion about privacy rights.

Employee Communications on Social Media

When an employer’s own policies authorize review, the federal Stored Communications Act (SCA) permits employers to access all private communications stored on an employer-provided wire or electronic communication services. The key concept is employer ownership of the device or service. From a practical perspective, it would be rash for an employee to leave personal passwords on an employer-provided device, since this gives the employer access to that sensitive data.

However, the SCA prevents employers, without employee authorization, from reviewing an employee’s private communications not stored in the employer’s system, including an employee’s personal secure website, private Facebook or other social media page, or personal emails provided by a third-party internet or email service provider. Beyond that, however, we are in the uncertain realm of “what ifs.”

What if an employee uses private media to post genuinely offensive images or threats of violence about co-workers? This may run afoul of criminal statutes.

What if the employee handbook covering unionized employees broadly prohibits employees from posting statements online that could “damage the company, defame any individual or damage any person’s reputation?” The National Labor Relations Board has ruled that such a policy violated the National Labor Relations Act because it interfered with an employee’s rights to engage in protected activities.

What if an employer encourages employees to use their own social media outlets to promote the company’s products or services? It may become unclear who owns or should control the social media account of an employee who is essentially acting as an in-house influencer.

The issue: In general, an employee who wishes to challenge an employer’s practice of accessing private or personal calls, internet activity, email accounts or social media accounts must:

  • demonstrate that the intrusion would be highly offensive to a reasonable person; and
  • refute the employer’s defense that the employee consented to the alleged invasion or had no reasonable expectation of privacy.

This can be a difficult argument to make, depending on the circumstances. An ounce of prevention may be the wiser route.

Medical Information, Banking Information, Tax Information and Employee Records

This is a slightly different kind of privacy issue because it relates to the security measures an employer uses in collecting, handling and storing employee records. Think of all the information you have given your employer: Social Security number, banking data, driver’s license number, medical information and family details. These categories of information tend to be protected by specific statutes. Protected health information, for example, is covered by the federal Health Insurance Portability and Accountability Act (HIPAA) as well as the Texas Medical Records Privacy Act.

Even if accessed or saved on a company-owned laptop, it is unlikely that any federal or Texas state court would grant an employer the right to review tax records without prior consent, given case law that consistently disfavors disclosure. Apart from the pieces, the kind of wholesale hacking operation that compromises large quantities of employee records is an identity theft nightmare, but it is also rare. The Texas Business & Commerce Law requires a company that loses sensitive personal information of employees through hacking to promptly notify the victims, so that they can take steps to protect themselves from identity theft. Identity theft is a federal crime, regarded as a felony offense and punishable by a fine, time in prison, and/or restitution to the victim. Any suspected misuse of personal data should be reported to the Federal Trade Commission.

A defensive approach: Now may be a good time to know more how your employer safeguards employee records. The hallmarks of a good information security policy may include:

  • designating all information relating to an employee’s personal characteristics or family matters as private and confidential;
  • releasing information relating to an employee only on a need-to-know basis, or if a law or court requires the release of the information; and
  • centralizing and processing of all information requests concerning employees within the company.

Read More about Employee Rights

If the privacy of your electronic employee communications or electronic employee records has been compromised at work, remember that you have employee rights that can be enforced under Texas and federal law. To read about some of the employee rights matters our employment lawyers have undertaken, click this link Employee Rights Articles. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Lessons for Texas Employees Who Have Experienced Workplace Harassment and Wish to Know Their Rights

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Should you ever be harassed at work, learn how to safeguard yourself, your situation, and your job from a legal standpoint. Your job is likely one of the most valuable things you have. Protect it. Recent news has focused on the problem of sexual harassment, but harassment can spring from many roots –including your race, national origin, religion, age, and disability. If you believe that you have been subject to workplace harassment, you should know two things. First, you have the right to equal opportunity and fair treatment. Texas and federal laws protect employee rights, so that employees can build for the future based on their employment accomplishments. Second, there are some simple steps you can take to protect yourself, and any claim that may arise from being harassed at work, even before you reach out to an employment law attorney.

Coping Mechanisms When Harassed at Work

If you have experienced workplace harassment, you will recognize the coping mechanisms:

  • Stage one is shock and disbelief. Did so-and-so really pat your behind? Was that a racial or ethnic slur you heard? Do you believe you were wrongfully terminated because of age? Was this a mistake or did you do something wrong?
  • Stage two is anger.
  • Stage three involves some strategic decisions about what to do next. Should you ignore it, look for another job, or pursue legal remedies?

For employees working through stage three, any of these decisions may be right. Many women who brought #MeToo claims, for example, have had to balance the risks of complaining about conduct versus the consequences of ignoring sexual harassment. In this article are several important lessons for employees who have experienced workplace harassment.

Our Employment Lawyers Can Help You Fight Workplace Harassment

If you believe that you have been harassed at work in violation of the law, the Texas employment attorneys at Kilgore & Kilgore will help you determine the legal remedies available to you and help you fight for your employee rights. Click the following link to learn more about workplace harassment Employment Discrimination. We offer a free review of the facts of your case. Use this link to reach us Contact Kilgore & Kilgore.

Was It Illegal Workplace Harassment?

Don’t spend too long on this step. Toss your legal questions to an employment lawyer. The time limits on filing a discrimination complaint with the Equal Employment Opportunity Commission, and many harassment claims take this form, are fairly short – generally 180 days from the incident (or up to 300 days for federal claims). A long delay may complicate or even bar a case.

Both the Texas Labor Code and the federal Equal Employment Opportunity Commission protect employees from discrimination and harassment. Other laws may apply depending on the nature of the harassment. Discrimination laws apply to employers with 15 or more employees (20, in the case of age discrimination) and to all state and local governmental entities regardless of the number of employees.

Workplace harassment is not limited to sexual abuse. It may involve any unwelcome verbal or physical behavior that is based on race, color, religion, sexual orientation, national origin discrimination, disability, age discrimination (over 40), pregnancy discrimination, or even gender identity. It is illegal when enduring the offensive conduct becomes a prerequisite to continued employment, or the conduct is severe or pervasive enough that a reasonable person would consider it intimidating, characterizing it as abusive behavior, or creating a hostile workplace.

The interpretation of these terms varies from state to state, however, especially with respect to gender and gender identity. The Fifth Circuit has determined, for example, that Texas law does not explicitly protect employees from harassment based on sexual orientation or gender identity. On the other hand, Texas law does appear to include gender stereotyping within the definition of harassment. Berating a group of male employees as “ladies” may constitute unwelcome verbal behavior.

Telltale Signs of Workplace Harassment

One unpleasant incident does not necessarily equal harassment, but repeated unwanted conduct may. To evaluate the abusive behavior, you should ask yourself the following questions. These are all serious signs of workplace harassment, and you should not ignore or endure them.

  • Has the abusive behavior escalated?
  • Do you believe that keeping your job or getting a promotion depends on submitting to unwanted conduct?
  • Have you suffered some harm, such as a demotion, a change in duties, particularly to ones that are not suitable for your skills and experience, a move to an unsuitable work space or the denial of a training opportunity because you have complained about the abusive behavior?
  • Have your complaints been mocked or ignored?

But Can You Prove Workplace Harassment?

This is often a problem especially because much of this conduct takes place in private. Take these steps to support your position:

Complain about it – promptly, in writing, and in detail to the appropriate human resources professional. You must make your case that the conduct was unwelcome, or if you were a witness or otherwise aware of it, that it created a hostile workplace or could be considered abusive behavior in the workplace. Also, complain about retaliation, if it happened.

Preserve records on your home computer or personal tablet. First, document the offensive interactions that you feel could be described as employee harassment, any interviews with others in the workplace, and complaints to management. Make note of dates, locations, witness names, and take photos, if appropriate. Keep printouts of offensive emails received. Make sure that you preserve this material at home. Documentation kept at work or on company equipment may disappear.

Talk to people who may have witnessed the abuse and ask them to write down their recollections. Not surprisingly, they may have experienced similar abuse. It may be better to have these conversations away from the workplace. Obtain printed copies of all comments received.

Exhaust internal remedies. Diligently pursue whatever grievance procedure exists in your workplace, even if you believe that it is not likely to be fruitful. Document all pertinent meetings, emails, or other correspondence.

Where there is no HR department, seek outside help. Often with a small company, or when the harasser is the boss, it may necessary to skip some of the preliminary steps and seek outside help immediately. The Texas Workforce Commission or the EEOC may be helpful. If you have not already done so, this may be the time to consider consulting an employment law attorney.

What Remedy Do You Want?

When all is said and done, decide the outcome you want. Do you want to be reinstated in your job, reassigned or promoted, if you believe a promotion was unfairly denied? Are money damages important to you? What about the cost of any medical treatment that has been necessary to help you deal with workplace stress? Do you want to see a change in policies and procedures? Should the harasser be removed? Do you just want to leave the job and start fresh with a positive recommendation?

Outside Remedies

There are generally two steps for an outside action. The first is a complaint to the TWC or the EEOC, and the second is a lawsuit. Some disputes are resolved via the TWC or EEOC process. This step generally involves attempts at mediation, or an investigation followed by, in some instances, a conciliation agreement that may yield monetary and other relief. If this is unsuccessful, an employee may seek to file a civil suit against the employer.

Your ability to bring a lawsuit is contingent on several things. To take legal action in either state or federal court, you must have a “right to sue” letter from the TWC or EEOC that will show that the agency has investigated the situation. Your ability to sue may also be affected by any confidentiality agreement you have signed with your employer, or whether you have an arbitration agreement. For these and other reasons, many employees resort to the court system only as a final step. This is where an employment law attorney can help you learn your options and probability of winning a lawsuit.

Read More about Workplace Harassment and Discrimination Lawsuits

If you have been the subject of workplace harassment, do not feel alone. You are one of many, and there are legal remedies for this form of abusive behavior. Going public about employee rights may also help protect others. Click here to read more about how our employment lawyers help resolve workplace claims Kilgore & Kilgore Dallas Employment Lawyers. Contact us to request a free evaluation of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

ERISA Disability Benefits Lawsuit Win Opens New Doors for Texas Disability Claims Denied

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Among ERISA disability claimants, there is widespread suspicion that benefits plan administrators routinely deny certain kinds of disability claims. Long-term disability claims may be denied when they mature from short-term disability into permanent disability claims. Plan administrators are sometimes accused of failing to request relevant medical records or harassing those with disability claims with repeated requests for duplicate medical records or tests. Critics speculate that reviewers have a financial incentive to deny disability claims, and that this prevents fair benefit decisions. Those receiving long-term disability benefits may be warned to assume that they are under surveillance.

Our ERISA Lawyers Help Long-Term Disability Benefits Clients Get the Help They Deserve

The Employee Retirement Income Security Act (ERISA) sets out rules for pension, health and disability benefits. The issue of long-term disability claim denials is legally and emotionally charged, to say the least. The compassionate ERISA lawyers at Kilgore & Kilgore understand the situation of those with long-term disabilities and work to apply Texas state and federal law to achieve fair disability benefits decisions. If your disability claim for long-term disability benefits was denied and you believe your claim was treated unfairly, contact us for a free review of the facts of your case by clicking here and sending a contact request from our website Kilgore & Kilgore.

Recent Disability Benefits Lawsuits Set Precedent for De Novo Standard

Under the legal standard recently set forth by the Fifth Circuit in Arianna M. v. Humana, courts may take a fresh look at benefit denials. Another recent lawsuit in the Northern District Court of Texas may push the precedent in an even more claimant-friendly direction. In this more recent lawsuit, the claimant won $9,000 a month for the months when his disability benefits went unpaid. That is good news for him, of course; but it may also be very good news for other Texas disability claimants who have been denied.

The Tangled Tale of the Disability Benefits Claimant’s Medical Records

In the Northern District lawsuit, the strangest part of the story of this long-term disability case is how the claimant’s medical records were handled and evaluated. In 2005, the claimant began experiencing back and vertabrae pain. The first physician he saw found that he had a degenerative disk condition but did not see anything significant on x-rays. The patient was referred to a psychiatrist, based on the possibility that his pain was related to anxiety. His condition continued to deteriorate, and he ultimately lost his job.

A few years later, he returned to the same clinic. This time, however, he was seen by an orthopedist who ordered an MRI. Upon review of the MRI, the specialist found that the patient’s back and vertabrae pain was caused by arthritic facet joints, with abnormalities clearly visible on the MRI. The claimant asked the plan administrator to contact this orthopedist. He also requested another review of his file. No one from the plan administrator’s office reached out to the orthopedist, reviewed his file or looked at his MRI. It is difficult to avoid the inference that the plan administrator cherry-picked the evidence in order to reach a conclusion that permitted the insurer to pay only limited benefits.

The Northern District Court’s conclusions, as listed below, were stark. For those with disability claims, the first point may be the most important. Here is a summary:

  • First, the court was not required to accept the plan administrator’s decision as presumptively correct, but it could review the record of the claim evaluation de novo.
  • Second, that the claimant was totally disabled under the policy, that his disability was not caused by a mental disorder, as defined in the policy, and so should not have been limited to 30 months of payment.
  • Third, that the claimant was owed $9,000 per month for all months that were unpaid.

Abuse of Discretion Versus the De Novo Review – This Difference is Key for Disability Claims

Whether courts may re-evaluate benefit payment decisions without evidence that plan administrators abused their decision-making power has been argued for decades, ever since the Supreme Court’s decision in Firestone Tire & Rubber Co. v. Bruch (1989). Under the abuse of discretion standard, which courts followed for much of that time, plaintiffs almost always lost because they had to overcome a presumption that the benefit decision was correct. The argument for this position was essentially that plan administrator decisions should be made by those closest to the situation and too much second guessing by federal courts would simply encourage litigation.

A more recent trend permits courts to review some underlying evidence with fresh eyes. This is called the de novo standard. Most courts have now embraced the de novo standard with respect to some elements of a lawsuit. Plaintiffs, who have long felt aggrieved by unfair disability benefits denials, have a better chance of success under the de novo standard. Texas was among the last states to embrace this change. That is the significance of Arianna M. v. Humana (2017). Arianna M. is a relatively recent decision, so the reaffirmation of that principle by the Northern District Court in this recent case is also quite important.

Disability Claims and the De Novo Review, but of What?

This is now the burning question and the area where claim denied litigation is likely to develop. Courts have always had the power to review the actual words in plan documents under a de novo standard. If, for example, a plan gave participants 30 days to enroll, but administrative practice was to limit the enrollment period to 15 days, a court could conclude that the plan administrator had abused its discretion in limiting the time.

Arianna M., an ERISA benefits lawsuit, takes the next step, permitting a court fresh review of medical records as evidence already in the record that was available to the plan administrator. In Arianna M., it should be noted, the court finally affirmed the plan’s denial of benefits. The de novo standard may be plaintiff-friendly, but it does not always guarantee success.

In this latest decision, the Northern District Court appears to hew closely to the language of Arianna M., announcing at the outset that “the Court is limited to the administrative record, with limited exceptions that do not apply here.” But, in fact, the evidence that it considered does not appear to have been part of the medical records that was before the plan administrator, at least not to the extent that they were in Arianna M. This is a very small difference – hair-splitting perhaps – but it raises an intriguing question: is this a further step forward for the de novo standard? The answer may not be clear until new litigation occurs.

Our Dallas ERISA Attorneys Can Help You Fight Your Disability Benefits Claim Denial

If you believe your long-term disability benefits claim was unfairly denied, the compassionate ERISA attorneys at Kilgore & Kilgore would be happy to help you explore your legal options. Click the following link to learn more about our representation in another disability denial case Cancer Victim Gets Denied Benefits Overturned. For a free evaluation of the facts of your case, use this link to contact us through our website Contact Kilgore & Kilgore.

FLSA Protected Texas Employee Who Obtained Settlement for Retaliation Lawsuit

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The U.S. Department of Labor (DOL) filed a lawsuit against a Texas employer in federal court after an investigation by the Wage and Hour Division of the DOL. The DOL found that the employer violated the nursing mother provision of the Federal Labor Standards Act (FLSA) when it denied the employee adequate time and space to express milk. The settlement was based upon the employer’s retaliation against the employee. The DOL argued that the employee’s resignation was a constructive discharge under the FLSA’s anti-retaliation provisions. This case has implications far beyond the world of nursing mothers.

As part of the settlement agreement, Allegiance Behavioral Health Center, which operates a counseling office in Texas, has agreed to pay $22,000 to a former employee who claimed that her employer made her working conditions intolerable when she complained that she had no suitable place to express breast milk. She was forced to pump while sitting in her car, in full view of the public and co-workers. Rather than continuing to tolerate to these conditions, she quit. Since these conditions were so intolerable that a reasonable person would have felt compelled to resign, the quit was considered a constructive discharge.

Employer Strikes Back as a Result of an Employee Complaint Violating FSLA Provisions

As many employees realize, life can get suddenly and precipitously worse for an employee who complains about working conditions. The employer’s reaction can become more severe when the complaint is made to outside enforcement agencies such as the Equal Employment Opportunity Commissions (EEOC) and the Texas Workforce Commission (TWC). Employee rights guaranteed by law are worthless if they cannot be enforced because people are afraid to speak. That is why the anti-retaliation provisions of the FLSA are so important.

Our Employment Lawyers Understand the FSLA and Texas Employment Laws and Can Help You Resolve an Employment Claim

If you believe you have experienced retaliation because you filed a complaint about your working conditions, overtime pay denial, or employee misclassification as an independent contractor, talk to an employment lawyer at Kilgore & Kilgore. Click the following link to learn more about our representation in employment retaliation cases. If you have questions about your rights under the federal FLSA statute or Texas employment laws, use this link to contact us through our website. Just click here Contact Kilgore & Kilgore, fill out the form on the website and send it in. We are happy to provide a free evaluation of the facts of your situation.

FLSA Protection Against Retaliation

Section 15 of the FLSA states that it is a violation for any person to “discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee.”

The law protects complaints made to the Wage and Hour Division at the DOL and many types of internal complaints to an employer. The law also protects complaints made by employees to the TWC and the EEOC. In fact, when an employee takes the time to file official complaints with these public agencies, such documentation may support the employee’s case should the matter be argued in court.

But few employees know their basic employee rights. The first step in protecting employee rights under FLSA or Texas employment laws is to understand what they are. The employment lawyers at Kilgore & Kilgore can help you understand your employee rights under state and federal law and may be able to take action to file a lawsuit if necessary.

FLSA Protection for Nursing Moms

Since 2010, the FLSA has required employers to provide reasonable breaks for employees to express breast milk in a place that is shielded from view and free from intrusion by co-workers and the public. A bathroom stall is explicitly not a suitable accommodation.

Before then, conscientious working moms who wanted to take care of their babies in the best way while on the job by providing breast milk had to go to lengths that might involve:

  • pumping in a bathroom stall;
  • packing the milk container into a nondescript lunch bag
  • putting the lunch bag in the breakroom refrigerator; and
  • hoping that no one opened the wrong bag and compromised the breast milk.

Among mothers with children under age 3, the labor force participation rate of married mothers is roughly 60 percent and for unmarried mothers 67.2 percent. The law seeks to recognize this demographic. Practice, however, often lags behind.

Wider Guarantees for Employees Under FSLA

FLSA is about much more than protections for nursing mothers. First enacted in 1938, it protects a wide array of employment rights including wage rates and working conditions. The employment lawyers at Kilgore & Kilgore help clients protect their rights under these wage and hour laws. Several hot button issues seem to recur, as described below.

Employee misclassification as independent contractors. Only employees are protected by the FLSA and the provisions of Texas employment law. Employers who want flexible staffing options and low labor costs have plenty of motivation to hire independent contractors instead of employees. Sometimes, however, this employee misclassification is not warranted by the facts of the working relationship. Courts have developed tests for distinguishing between employees entitled to the protections of law, and contractors, who have protections only in the terms of their own contracts. The central issue, however, is the degree of control exerted by an employer. The most frequently litigated issues are minimum wage and overtime claims, although any or all the protections of law can be at issue. Examples of employee misclassification come up with, for example, drivers, sales representatives, and gig workers, among others. Kilgore & Kilgore employment attorneys represented employees in numerous such cases. If you believe that you and other coworkers have been misclassified and are owed overtime or other pay, please contact us.

Failure to pay for required breaks. Federal law guarantees paid break time in limited circumstances, including time for nursing mothers to express breast milk.

Undercounting of time. Sometimes described as “donning and doffing” lawsuits, for the time it takes employees who must wear protective gear to put it on and take it off, these lawsuits cover much more. Also, employers must count and pay for the relatively small amounts of time it takes employees to perform tasks that are necessary to their jobs, if not quite core functions. As with employee misclassification lawsuits, the litigated issues may actually appear as minimum wage and overtime underpayment.

Failure to pay minimum wage or overtime pay. Sometimes underpayment issues are more blatant, as when an employer hires employees who feel vulnerable and are unlikely to complain because of language barriers or immigration status. To be clear, the application of legal employment protections is not dependent on immigration status. These issues arise in the construction industry, home health care, and garment trades, as well as others.

Learn More about FSLA, Retaliation, Employee Misclassification, and Overtime Underpayment Lawsuits

If you have been denied your legal rights and then suffered from employer retaliation after making a complaint, if your paycheck was short, or you have learned that your overtime pay is the result of employee misclassification you may benefit from the experience and knowledge of the employment law attorneys at Kilgore & Kilgore. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Retaliation Found by Jury to be the Reason Behind a Wrongful Discharge Upheld on Appeal

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Recently, the Fourteenth Court of Appeals in Texas upheld a jury’s conclusions that an employer was liable for a wrongful discharge under Title VII of the Civil Rights Act when it fired an employee in retaliation for the employee’s complaints of age discrimination and gender discrimination. The Appellate Court upheld the jury’s award of $150,000 for damages including mental pain and suffering caused by the employer’s treatment of the employee.

This ruling highlights some key concepts of employment retaliation and discrimination law that can be difficult to make sense of for employees and employers who aren’t working with these complex cases every day like the employment law attorneys at Kilgore & Kilgore. For example, this case shows how an employee’s actions can aid the success of a retaliation or discrimination lawsuit in the court system. In this case, the employee filed a complaint of age discrimination and gender discrimination with her employer. Later, she filed a civil rights claim with the Equal Employment Opportunity Commission (EEOC) and with the Texas Workforce Commission (TWC). In other words, the law allows an employee to stand up for her civil rights, even when she isn’t perfect. If a jury or appeals court can conclude from the evidence that an employee reported discrimination clearly enough in lay terms to the employer and legal authorities, and that the employee timely files with the EEOC or TWC to obtain a Notice of Right to Sue, that’s enough to bring a lawsuit for employment discrimination or retaliation.

Do You Have a Strong Case for Employment Discrimination or Retaliation?

Of course, whether an employment discrimination or retaliation lawsuit, once filed, is likely to be successful is another question that can be answered only by an experienced employment law attorney. And just because a jury found in favor of the employee in this case does not mean another jury would reach the same conclusion even in a case with similar facts.

The important thing is to have an experienced employment law attorney evaluate your claim as early as possible to advise you of your rights while you still have time to bring a lawsuit. As this case shows, in Texas, you also must properly report the discrimination or retaliation before you can file a lawsuit. The attorneys at Kilgore & Kilgore have years of experience handling these cases and are available for a free evaluation of the facts of your case. Contact us to get the conversation started by filling out the form and submitted it through our website, just click here Contact Kilgore & Kilgore or call us at 214-969-9099.

Employee Says She Was Fired for Reporting Age Discrimination and Gender Discrimination

The case is Apache Corporation v. Cathryn Davis. Ms. Davis began working for Apache in 2006 as a senior paralegal. The facts suggest that things were going fine until 2010 when, according to Ms. Davis, she began being passed over for promotion and raises because of her age. Younger employees were promoted, and she said she felt mocked by her supervisor when she raised the issue. Davis also observed that women had not received titles or promotions, that Apache allowed a male paralegal to transfer to a business unit with promotional opportunities, that a female employee was replaced by a male, and that only male litigators were hired. Apache later presented evidence that, at the same time, Ms. Davis constantly asked for schedule changes that were contrary to company policy. Apache said she arrived late, took long breaks, left late — and worked overtime without approval — after she had been specifically told not to. Ms. Davis said she needed a flexible schedule in order to drive her daughter to and from college classes. She claimed that the harsh way her supervisor told her to stop working overtime caused her to go into convulsive breathing.

Employee Suffered from Employer Retaliation After She Complained to the Company About Discrimination

The employee said the company had a long history of permitting flex time and argued that its change in policy was deliberately setting her up for failure. She also stated that, from 2010 to 2012, whenever she again raised the possibility of promotion, her supervisor responded with “little jabs” that Ms. Davis couldn’t tolerate. In a later email to Apache, she described her supervisor’s responses as “beat downs” and “intimidation” that caused her “great emotional distress” that ended with her in tears.

In 2012 she filed an internal complaint with Apache, alleging emotionally abusive behavior, age discrimination and “woman discrimination.” As for the “woman discrimination,” she explained that she had “observed and experienced the company’s pervasive negative attitude toward advancing or recognizing the contributions or accomplishments of its female employees.” She stated that, after she submitted this complaint, she was shunned by her supervisor. After an internal investigation, Apache found no evidence of discrimination.

However, allegedly in part based on Davis’s failure to follow company policy regarding overtime and work schedules, in January 2013, Apache fired Ms. Davis. She then filed a complaint with the EEOC, checking the boxes for both retaliation and age discrimination. After Davis received the right to sue letter from the EEOC, she then filed a lawsuit in the trial court, alleging both retaliation and age discrimination.

The Employer Then Retaliated Against the Employee Alleging Discrimination

For purposes of our discussion, the focus of Davis’s lawsuit is her claim that Apache fired her for reporting gender or age discrimination. Reporting discrimination is a protected activity under civil rights law, which encourages employees to come forward and report apparent discrimination. The jury found in favor of Davis on her retaliation claim: the jury found that Apache fired her in retaliation for reporting age or gender discrimination. And, because they believed that her supervisor treated her in an emotionally abusive way, the jury awarded Davis $150,000 for emotional pain and suffering, inconvenience, mental anguish, and loss of enjoyment of life. Also, the jury awarded Davis attorneys’ fees, appellate fees, with prejudgment and post-judgment interest.

The Employer Appealed the Verdict and Argued the Evidence Did Not Justify the Jury’s Verdict

Apache appealed the ruling to the Court of Appeal of Texas in Houston. At first, it might seem surprising that a corporation would appeal an award to a plaintiff of only $150,000. In fact, Apache didn’t even specifically challenge this award. Rather, it generally argued that the jury’s conclusions about the wrongful discharge were not supported by the facts of the case and that the award of attorneys’ fees was improper.

Arguably, the attorneys’ fee award is the key to understanding the appeal. Compare the numbers: $150,000 to Davis for damages and $767,242 in attorney fees. On appeal, it is fair to assume that Apache’s primary goal was to get this huge award of attorneys’ fees reduced. And, it could do so in several ways.

First, in Texas, a plaintiff who is successful in a retaliation lawsuit can be reimbursed for reasonable attorneys’ fees. So, the entire fee award could be called into question if Apache could convince the appeals court that the evidence did not support the jury’s conclusion that Apache fired Davis in retaliation for her civil rights complaint. Second, Apache tried in various ways to argue that the attorneys’ fee award was too high. Apache’s appeal mostly failed. Apache argued that the facts could not support the jury’s conclusions that Ms. Davis reasonably believed she was discriminated against, that she clearly reported the discrimination on time to Apache and the EEOC, and that Apache fired her because she violated company policies.

But here is the most important thing to understand about these arguments on appeal. An appeals court is required to defer to a jury’s findings on the facts of a case unless no reasonable person could reach the same conclusion or, as the court opinions say, unless the jury’s decision on the facts is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. The reason for this, roughly stated, is that our justice system gives great respect to juries of our peers, who are direct witnesses to the live testimony of the parties in the case. We are supposed to trust juries to consider a witness’s demeanor, tone and facial expressions, for example, while testifying. And this puts other evidence — such as emails and written complaints presented in this case — into context. So, unless there is essentially no way a jury could reasonably find a given fact necessary to the jury’s verdict, the appeals court can’t re-decide that fact later. There is no point in Apache arguing, for example, that the evidence more strongly suggests that Davis was fired for violating company policy, if there is some evidence that she was fired in retaliation for her discrimination complaint.

Employer’s Arguments on Appeal Failed the Standard of Review of the Jury’s Conclusions

Given this standard of review of the jury’s conclusions, the appeals court rejected Apache’s arguments. It stated that the jury could reasonably conclude that Davis properly filed an internal complaint alleging both age discrimination and gender discrimination. Similarly, there was enough evidence that she properly filed her EEOC complaint. And, she had also filed a complaint and email response with the Texas Workforce Commission that made her gender discrimination claim clear. And, she included her email to Apache as part of her filing with the EEOC. All this was enough to establish that she properly reported her gender discrimination claim.

Finally, the jury could reasonably conclude that Ms. Davis was fired in retaliation for trying to protect her civil rights — as opposed to being fired for willfully violating Apache’s company policy about scheduling and overtime. The jury found that she did violate the policies, but it reasonably concluded that Apache actually fired her in retaliation for her discrimination complaint based on evidence that:

  • The employee was fired a relatively short time after she filed the complaint.
  • Her supervisor shunned her and reduced her workload right after the complaint.
  • The employer gave several contradictory reasons for firing her, which changed over time.

What This Case Means for Future Employment Discrimination and Retaliation Claims

Some important takeaways from this case include that employees do not have to be perfect to claim legal protection for violation of their civil rights. The jury concluded that Apache could have fired Ms. Davis for misconduct. But, according to the jury, it didn’t. Instead, it fired her for calling Apache out on what she reasonably perceived was age discrimination and gender discrimination.

Second, an employee’s civil rights don’t have to have been violated for an employee to protect herself or himself against retaliation for engaging in protected activity. If an employee reasonably believes he or she has experienced unlawful discrimination at work and reports it to the employer and legal authorities, like the EEOC and the TWC, the employer cannot fire the employee for this whistleblowing behavior.

If you have experienced employment discrimination or retaliation, the employment law attorneys at Kilgore & Kilgore can help you understand your rights and whether the evidence supports a lawsuit. We can also advise you regarding whether you may get your rights vindicated without going to trial by reaching a settlement with your employer. Click here Contact Kilgore & Kilgore to start a free review of the facts of your case. Or, Call us 214-969-9099.