The Anti-SLAPP Statute Protects People from Defamation Lawsuits That Infringe Upon Their Rights

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The Texas Citizens Participation Act, or TCPA, commonly referred to as the Anti-SLAPP statute protects people from lawsuits that infringe upon their rights to free speech or free association. While this has generally dealt with defamation cases, the Anti-SLAPP statute is finding itself to be more and more relevant in employment cases dealing with non-competition agreements, interpreted as the right to free association, and trade secrets, interpreted as the right to free speech.

If you find yourself being sued with regard to claims affecting your rights to free speech or free association, you have an arrow in your quiver with the Anti-SLAPP statute. Anti-SLAPP is an acronym for Strategic Lawsuits Against Public Participation. If you publicly criticize a company or entity for wrongdoing, such as polluting a river or performing surgery on a healthy knee, that company or entity could sue you for defamation. However, you could fight back under the TCPA.

Kilgore Attorneys Defend People Using the TCPA

Are you being sued for defamation after speaking out about a company or entity? The lawyers at Kilgore & Kilgore can help you decide on the best defense, including the exploration of whether or not an Anti-SLAPP motion is a useful defense. Are you being sued for violating a common law or contractual non-competition claim, then Anti-SLAPP statute can help in your defense? Finally, if you find yourself being told to cease and desist contacting former customers or vendors, you guessed it, the Anti-SLAPP statute! Click here to reach out to us Kilgore & Kilgore. One of our attorneys will respond with a free review of the facts of your case. To learn more about this topic, click here Defamation Lawsuits – Hit Back When You Get SLAPPed.

An Anti-SLAPP Lawsuit Has a Time Limit

Any time you’re involved in litigation, you must understand the required dates for filing court documents such as answers, motions, and appeals. If you miss a filing deadline, you could not only be out of luck, but it could also prevent you from having your day in court. Additionally, depending on your case, you could end up stuck with court costs and the other party’s attorney fees. Sure, your attorney is the one responsible for keeping track of and handling these details, but a wise person understands the responsibility of being cognizant and involved in his or her case. In Texas, if you’ve been sued for defamation, and you’d like to fight that claim, you must act quickly or else your case may be dismissed with a bill for the attorney’s fees of your opponent.

Anti-SLAPP Statute Definition

Under the TCPA, if you are exercising your freedom of speech or your right of association regarding a matter of public concern by complaining publicly about the acts of a company or entity, seeking to contact former customers or compete with a former employer, then you may defend yourself by filing an Anti-SLAPP motion for dismissal of your case using the TCPA. If you’re successful in getting your case dismissed, then the court will award your attorney’s fees incurred as well as penalties against the company or entity for bringing the lawsuit.

If the lawsuit against you is meritorious, meaning it meets the legal definition of defamation, then you can’t defend yourself using the TCPA. However, if the company or entity brings a defamation lawsuit to harass or intimidate you for speaking the truth, or the company or entity wants to drag out the litigation, to punish you by raising your costs, then these frivolous lawsuits can be fought.

Filing an Anti-SLAPP Lawsuit

Like other litigation, you must file your Anti-SLAPP lawsuit in a timely manner or risk getting your case dismissed. The TCPA protects individuals from retaliatory lawsuits for defamation that seek to intimidate those individuals on public concern issues, such as environmental dumping or toxic waste containment. The individual who is sued for defamation starts the clock on a TCPA defense by filing a motion to dismiss with the court. The motion must be filed no later than 60 days after you are served with the defamation lawsuit. If you don’t file the motion within the 60-day time period, you lose the protections of the TCPA. In certain instances, the court may extend this time period, if you show good cause.

Defending an Anti-SLAPP Lawsuit

If the court holds a hearing on the motion to dismiss, then you must demonstrate that the company or entity which filed the lawsuit in response to your exercising your right to free speech or free association. If you satisfy the court on this demonstration, otherwise known as satisfying the burden of proof, then the company or entity must establish each factor of its claim in order to prove that the lawsuit wasn’t retaliatory. This is a difficult burden for the company or entity to meet, because the law gives protection to individuals exercising their right to free speech regarding public concerns.

Example of an Anti-SLAPP Lawsuit Getting Dismissed

Recently, the Dallas Court of Appeals issued an opinion on an Anti-SLAPP defense. The case, known as Mancilla-Sales Tax International v. Taxfree Shopping, Ltd., was handled by Clark B. Will of Kilgore and Kilgore. In November 2018, the Dallas Court found that the plaintiff in this case, the individual who was sued for misappropriation of trade secrets under the Texas Uniform Trade Secrets Act (TUTSA) asserting the Anti-SLAPP statute defense should be dismissed.

In this case, a former employee, Evelyn Mancilla, and her new company, Sales Tax International, LLC (STI), were sued by her former employer, Taxfree Shopping, Ltd. (TFS). TFS was formed in 2001 as a sales tax refund business. Ms. Mancilla began working at TFS in 2007 and was promoted within the company to the rank of number three person in TFS. In May 2017, TFS terminated Ms. Mancilla, and promptly thereafter, she started STI, a competing company.

In June 2017, TFS sued Ms. Mancilla and STI for misappropriation of trade secrets under TUTSA as well as injunctive relief for using TFS’s customer service lists, contacting customers and employees, utilizing marketing strategies, and making public or private defamatory comments about TFS. After some discovery, TFS amended its complaint in October 2017. In the amended complaint, TFS dropped certain claims and added others, including breach of fiduciary duty. Further, TFS added more facts to support its initial claims, such as providing specific client information as opposed to the more general term “client lists.”

In December 2017, Ms. Mancilla filed a TCPA motion, seeking to dismiss the TUTSA claim, alleging that this claim was filed to intimidate and silence her right to free speech and association. Since there were no valid non-competition agreement, non-disclosure agreement, or non-disparagement agreement, then Ms. Mancilla asserted that this claim’s purpose was to stifle and silence her.

TFS claimed that Ms. Mancilla’s motion should be dismissed since it wasn’t filed with the court in a timely manner. Ms. Mancilla argued that the motion was timely because it was filed within 60 days after the second complaint was filed. Since the second complaint was substantially reformulated with additional, specific facts, then the second complaint triggers the 60-day clock, not the first complaint.

Time Limit was the Reason for the Anti-SLAPP Lawsuit Dismissal

However, the court found that an amended pleading that doesn’t add new parties or claims does not restart the 60-day clock. To do so, the complaint must be amended to reflect new claims of action or new parties to the lawsuit. Here, the amended complaint added detail to the already asserted TUTSA claim, which appeared in the first complaint. The Dallas Court of Appeals held that additional detail to an already asserted complaint does not restart the clock. As a result, Ms. Mancilla’s motion asserting the Anti-SLAPP motion was dismissed. Further, the Dallas Court of Appeals awarded TSL its costs in this case to be paid by Ms. Mancilla and STI.

Read More About Anti-SLAPP Lawsuit Dismissal Protocols

If you have experienced a similar situation and wish to bring an Anti-SLAPP motion, you will benefit from the experience and knowledge of the Anti-SLAPP statute of the attorneys at Kilgore & Kilgore. To read more about the Anti-SLAPP statute, click here Anti-SLAPP Dismissals Just Became a Bit More Difficult. Contact us for a free review of the facts of your case by clicking here and sending us a contact request Contact Kilgore & Kilgore.

Recent Ruling Exempts Job Applicants from Discrimination Protection Because of the Language in the ADEA Statute

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Recently, the Seventh Circuit on appeal determined that the discrimination protections for older workers in the ADEA don’t extend to job applicants. The court held that the law applies only to employees. Let’s examine this case further. This decision has already generated some controversy. However, it impacts only the states in the Seventh Circuit, which include Illinois, Indiana, and Wisconsin. Other states can use this decision as guidance, but it’s not controlling law outside of the Seventh Circuit.

More Than Likely the EEOC Will Continue Applying the ADEA to Job Applicants

If a potential employer denies your job application based on age, that employer may be liable. Job applicants should understand that more than likely, the EEOC will continue applying the ADEA to job applicants. Additionally, Congress may pass legislation to fill this language gap. However, until then, this ruling is damaging to individuals applying for work in those states. Whether this restriction on rights extends to other states remains to be seen.

Our Employment Lawyers Can Help You Sort Out Your Discrimination Claim

If you believe you’ve experienced employment discrimination because you’re over 40, you should talk to an employment lawyer at Kilgore & Kilgore. If you have questions about your rights under the ADEA, Title VII of the Civil Rights Act of 1964, or any state 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’ll be happy to walk you through the legal dynamics that arise when employment discrimination occurs.

Older Workers Deserve Equal Treatment Under the Law According to the ADEA

In today’s workforce, employees are working longer than in previous generations. Whether it’s because people stay healthier longer or for financial needs, people are working in some capacity well into their 60s and 70s. In fact, 25 percent of the workforce, roughly 41 million people, is made up of Baby Boomers, and 33 percent consists of Gen Xers, topping out at 53 million.

With the increase in older workers in the workplace, we’ve seen a rise in age discrimination reports, with almost double the complaints filed by women, African Americans, Asians, and workers over age 65 years old. In 2017, over 18,000 age discrimination complaints were submitted to the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces workplace discrimination laws. Those were the cases that were filed. Many instances of age discrimination go unreported.

Under the ADEA an Employer Must Apply the Same Employment Policies to all Employees

The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employers from intentional discrimination against older workers, meaning employees over the age of 40. Additionally, under the ADEA, an employer can’t engage in different employment practices that impact older workers.

Recently, the Seventh Circuit determined whether the ADEA applies to employees only or if the law encompasses job applicants. In Kleber v. CareFusion Corporation, January 23, 2019, the Seventh Circuit held that the ADEA does not provide legal recourse for rejected external job candidates. Let’s examine this case further.

Older Worker Applies for Job

On March 5, 2014, Mr. Kleber, a 58-year-old job applicant, applied for a senior in-house attorney position at CareFusion Corporation. The job description required job applicants to have three to seven years, and no more than seven years, of relevant legal experience. Kleber applied, knowing he had more than seven years of legal experience. CareFusion hired a 29-year-old job applicant who had between three and seven years of applicable experience. Thus, the company passed over Kleber’s application, not giving him the opportunity to interview.

Older Worker Brings Lawsuit Claiming Disparate Treatment Citing the ADEA

In response to CareFusion’s actions, Kleber filed a lawsuit in district court alleging claims of disparate treatment and disparate impact under the ADEA. Kleber stated that the maximum experience cap for this position was “based on unfounded stereotypes and assumptions about older workers, deters older workers from applying for positions. . . . and has a disparate impact on qualified applicants over the age of 40.”

CareFusion requested the dismissal of both allegations. In dismissing the disparate impact claim, the district court stated that the ADEA didn’t extend to job applicants. Kleber voluntarily dismissed the remaining claim for disparate treatment. However, he appealed the court’s decision, challenging the dismissal of the disparate impact claim.

Federal Court Reverses District Court Decision Citing the ADEA

The Seventh Circuit reversed the district court’s ruling in a divided opinion. The Seventh Circuit then granted an en banc (meaning all the judges) review of the case, upholding the district court’s conclusion that the ADEA does not extend to external job applicants, that these protections are available only for employees.

How did the Federal court arrive at this conclusion? Let’s take a deeper dive into the court’s reasoning.
In reviewing Kleber’s disparate impact claim, the court examined the following language from the ADEA:

To limit, segregate, or classify employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.

Disparate Impact Definition

Illegal employment discrimination is often described as disparate treatment. A disparate treatment claim alleges that an employee or job applicant was treated differently than other employees in similar situations, and the difference involved a protected characteristic such as age. Disparate impact is often referred to as unintentional discrimination. Disparate impact lawsuits claim that an employer’s facially neutral practice had a discriminatory effect. It is a way of proving employment discrimination based on the effect of an employment policy or practice rather than the intent behind it.

ADEA Needs Congressional Action

The judge writing the majority opinion stated that the ADEA differed from Title VII of the Civil Rights Act of 1964, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. In Title VII, Congress amended the law to extend protections to job applicants. Here, regarding the ADEA, Congress has not passed explicit language concerning job applicants. Furthermore, the ADEA differs from Title VII in that that ADEA requires that a company employs at least 20 employees in order to be liable.

One dissenting judge stated that extending the protections of the ADEA would track the U.S. Supreme Court’s application of Title VII, which prevents employers with more than 15 employees from discriminating against workers based on sex, race, color, national origin, and religion. You may be interested in reading our other blog post on age discrimination and a recent U. S. Supreme Court decision. Just click here Supreme Court Defines Federal Age Discrimination Law Upon Which Lower Courts Were Split.

Discrimination in the Workplace Occurs in Many Different Types of Situations

Perhaps you suffer from other types of discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.

Court Rules That Vice President Who Was Fired Just Before Earned Sales Commissions Were Due Is Entitled to Payment

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Does part of your compensation come from sales commissions? Do you have a long-term incentive benefit as part of your compensation package? Do you have an employment agreement that outlines the requirements for payment of your sales commissions and incentives? If so, then you should note a recent opinion from the U.S. Court of Appeals for the Fifth Circuit that could make it easier for you to collect your sales commissions and other benefits if you are terminated.

Recent Court Decision Came Down on the Side of the Terminated Employee

The Fifth Circuit case is Sellers v. Minerals Technologies, Inc. and CETCO Energy Services Company, L.L.C. In that case, David Sellers was hired as CETCO’s vice president of business development in January 2010. He signed an employment agreement that provided for a long-term incentive payment of five percent of the net margin of sales made under his supervision.

Employee Was Terminated Without Cause Due to Company Downsize and Employer Claimed That Employee Lost His Incentive Benefit as a Result

Sellers’ employer, CETCO, was purchased by Minerals Technologies around May 2014. Minerals Technologies asked CETCO to downsize. Sellers had allegedly told his employer that he did not intend to stay at the company beyond the end-date of his employment agreement, January 18, 2015. Sellers was eventually terminated without cause as part of a downsize. The federal district court found that Sellers’ date of termination was before the end-date of his employment agreement, December 19, 2014.

Lawsuit Claimed Breach of Contract for Failure to Pay Incentive Under Employment Agreement

In his lawsuit in Texas, Sellers asserted several claims against the defendants, CETCO and Minerals Technologies. One of his claims was for breach of contract for their failure to pay him $428,681.71 for the long-term incentive payment under his employment agreement.

The federal district court ordered CETCO and Minerals Technologies to pay Sellers certain undisputed commissions owed to him. However, the court also granted summary judgment in favor of the defendants, CETCO and Minerals Technologies, finding in part that Sellers was not entitled to the long-term incentive benefits because his employment agreement required that he be employed on January 18, 2015 in order to receive those benefits. The court determined that this requirement was an unmet condition precedent. A condition precedent is “an act or event that must take place before performance of a contractual obligation is due.”

The Federal District Court Decision was Reversed on Appeal

Sellers then appealed the federal district court’s denial of his long-term incentive benefits to the Fifth Circuit. On appeal, the Fifth Circuit examined two key provisions in Sellers’s employment agreement.

Section 3(c) stated:

“If Employee is still employed on January 18, 2015, then after that date but before March 15, 2015, Employee shall receive an amount equal to 5% of the Net Margin of Sales of the New Build Capital Process Equipment business …. Employee will not be eligible for this long-term incentive if he resigns or if he is terminated for cause prior to January 18, 2015.”

Section 11(d) stated:

“Employer may terminate Employee’s employment without cause by giving Employer [sic] thirty (30) days written notice of termination, or in its discretion, pay in lieu of notice. Employer shall be obligated to pay Employee’s base salary to the date such notice is effective, along with any commission and long-term incentive due pursuant to Section 3.”

The Fifth Circuit agreed with the federal district court that Section 3(c) of Sellers’ employment agreement unambiguously created a condition precedent that required Sellers to be employed on January 18, 2015 in order to receive the long-term incentive benefits. However, the Fifth Circuit determined that the condition precedent was satisfied, or alternatively, excused under the facts of the case.

The summary judgment evidence showed that Sellers received a payment for one month’s salary, $14,205, on January 15, 2015. In accordance with Section 11(d), this payment was for an additional thirty days of wages. The Fifth Circuit concluded that the effective date of Sellers’s termination was thirty days after January 15, 2015, or February 14, 2015. Thus, the Fifth Circuit determined that the condition precedent requiring Sellers to be employed on January 18, 2015, in order to receive his long-term incentive benefits, had been satisfied. According to the Fifth Circuit, the federal district court erred in finding that the condition precedent had not been met.

Condition Precedent Fulfilled or Excused According to the Fifth Circuit

The Fifth Circuit found that the condition precedent was fulfilled or excused under the facts of the case. A condition precedent can be considered fulfilled “if one party prevents another from performing a condition precedent or renders its fulfillment impossible, then the condition may be considered fulfilled.” The defendants had terminated Sellers in December 2014 and thus “unilaterally prevented fulfillment of the condition at issue and cannot rely on nonfulfillment to deny” the long-term incentive benefits to Sellers due under his employment agreement.

Thus, the Fifth Circuit reversed the federal district court’s grant of summary judgment in favor of the defendants on the issue of the payment of the long-term incentive benefits due to Sellers. The case was remanded by the Fifth Circuit to the federal district court for the purpose of determining the amount of long-term incentive benefits owed to Sellers and entering judgment in that amount.

Understand the Provisions in your Employment Contract that Define the Payment of Sales Commissions and Incentive Payments

You should understand what your employment agreement says and doesn’t say. If you have an employment agreement that provides for sales commissions or other incentives which have been earned but not paid, contact us. We help employees enforce their employment agreements. We also help employees get the commissions and incentives they deserve. If you have any questions about your employment agreement, click here to find the contact us form on this website. Fill it out and send it in to get the conversation started. Kilgore & Kilgore offers a free review of the facts of your case. Just click here Contact Kilgore & Kilgore.

U. S Supreme Court Further Defines Federal Age Discrimination Law Upon Which Lower Courts Were Split

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You may be too young to experience age discrimination yet, but just wait, because it may happen to you. Or, perhaps you have engaged in discrimination against someone because of his or her age, without even recognizing it. Thousands, if not millions, of working Americans have felt the cold shoulder of age discrimination from their employers or during job searches when they were passed over for a position in favor of a younger, less expensive candidate. At first, the employee or job searcher may not recognize the rebuff as age discrimination because the action is cloaked by different reasons so the person making the decision about the older worker doesn’t hurt his or her feelings. But make no mistake, age discrimination exists in the U. S.

Age Discrimination is Illegal in the U.S.

Under both and federal and Texas state law, age discrimination is illegal. Employees who are 40 years of age or older are protected against discrimination based on their age. Are you 40 or older? Were you replaced by a significantly younger worker? Have you heard your supervisor make comments about your age or tell age-related jokes to your co-workers? If you think you have experienced age discrimination, then you should contact Kilgore & Kilgore, because our employment law attorneys hold employers liable for discrimination as defined by Texas and federal law. To learn more about Kilgore & Kilgore’s employment discrimination law practice, click here Employment Discrimination.

Age Discrimination in Employment Act

In 1967, Congress passed the Age Discrimination in Employment Act, commonly referred to as ADEA, to protect workers from age discrimination. Originally, the ADEA applied only to private employers, leaving state and local government workers unprotected. Only private employers with 20 or more employees are covered under the ADEA.

However, in 1974, Congress amended the ADEA to add protection for state and local government workers. Neither private sector nor state and local government workers under the age of 40 are protected by the ADEA or its Texas counterpart in Chapter 21 of the Texas Labor Code.

U. S. Supreme Court Decides and Defines the ADEA Age Discrimination Law

In its first opinion of the October 2018 term, the U.S. Supreme Court decided a case under the ADEA. In Mount Lemmon Fire District v. Guido, the U.S. Supreme Court held that state and local governments are covered by the ADEA regardless of the number of employees they have. The decision was 8-0. Justice Kavanaugh did not participate. Justice Ginsburg wrote the unanimous opinion for the Court.

Age Discrimination Lawsuits Against Employers are Simpler for Government Employees

As a result of this decision by the U.S. Supreme Court, the whole process of bringing an age discrimination case against an employer has been made easier for government employees. This is because employees who work for federal or state agencies no longer must show that at least 20 employees work there in order to proceed with an age discrimination claim. For other types of discrimination, only 15 employees are necessary for bringing a claim. It is only in the ADEA that the 20-person requirement is contained.

Older Firefighters Laid Off in Arizona Set off an Age Discrimination Lawsuit

In Guido, the Mount Lemmon Fire District located outside of Tucson, Arizona, laid off its two oldest full-time firefighters. They were 46 and 54 years of age. These firefighters sued the Fire District for age discrimination under the ADEA. The relevant section of the ADEA, 29 U.S.C. § 630(b), states:

The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees …. The term also means (1) any agent of such person, and (2) a State or political subdivision of a State…

Fire District Sought Dismissal of Firefighters’ Claim

Relying on the above section of the ADEA and some other lower court cases, the Fire District sought dismissal of the firefighters’ lawsuit in the Federal District Court in Arizona. They argued that the ADEA did not apply to the Fire District because it had less than 20 employees. The Federal District Court in Arizona agreed with the Fire District and granted summary judgment for the Fire District. So, the case was brought on appeal to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit held that the 20- employee requirement did not apply to employees of the federal government, that it applied only to private employers with 20 or more employees. The Fire District appealed to the U.S. Supreme Court which also found that there was no 20-employee requirement for federal government employees. The case has been sent back to the district court, where litigation will proceed.

Definition of Number of Employees Requirement Established by the U. S. Supreme Court

The U.S. Supreme Court had to determine whether the ADEA’s “twenty or more employees” requirement for a private employer also applied to state and local government employers. The Court determined that the phrase “also means” in the ADEA added new categories of employees who were protected by the ADEA. The ordinary meaning of “also means” is additive rather than clarifying, according to the Opinion written by Justice Ginsburg.

Thus, the U. S. Supreme Court held that the 20-employee minimum does not apply to every category of employer identified in the ADEA. The numerosity requirement does not apply to state and local government employers. The Court affirmed the judgment of the Ninth Circuit and concluded that state and local governments are employers subject to the ADEA regardless of the number of employees they may have. Thus, the two firefighters would be able to assert their age discrimination claims against the Mount Lemmon Fire District regardless of its small number of employees.

Discrimination in the Workplace Occurs in Many Different Types of Situations

Perhaps you suffer from other types of discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.

What to do With Complaints When You or Your Coworkers Are Uncomfortable About the Boss’ Behavior

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When you’re building your career, it’s easy to get caught up in misconceptions. Errors in judgment can lead to being on the wrong end of abusive behavior by a supervisor. When these uncomfortable occurrences happen again and again, you wonder if you should you speak up and make a complaint. The more you work, the more experience you will gain. In the meantime, the more you learn, the more you’ll launch yourself ahead of the curve. You may wonder if the time for complaints is at hand or if should you just grin and bear it. It’s a good idea to learn what’s in your control legally and what’s not. It’s important to learn how a company’s culture or a bad manager can impact your professional goals. Learn when a manager steps over the line and creates a legally actionable situation.

Have Complaints About a Boss?

To learn more about abusive behavior and employee rights in the workplace, click on this link Employment Law. Kilgore & Kilgore has experienced employment law attorneys who may be able to answer your questions. To start the conversation, click here, fill in and send the form to us Contact Kilgore & Kilgore.

Dysfunctional Yes, But Is It Legally Actionable?

Sometimes, whether it’s a dysfunctional manager or culture, it’s not illegal. It’s just dysfunction. And when you look at the situation, it may be time for you to make a change and begin building your career elsewhere. It does not help your career growth to move from company to company too often. But on the other hand, strategic moves based on more responsibility or higher visibility are good for a career.

Variety in the Workplace May Result in Complaints

In today’s workforce, there as many as five generations engaged. These generations include traditionalists, Baby Boomers, Generation X, millennials, and Generation Z. Each generation brings its own talents, skills, experiences, and expectations to the workplace.

The longer you work, the more you learn and refine skills including interpersonal, problem-solving, teamwork, and business etiquette skills. Many of these workplace skills are learned only on the job. As Julius Caesar said, “Experience is the teacher of all things.”

Before such experience is acquired, younger employees often have questions about the place where they work and how employees are treated in that workplace. For example, if you have an unfriendly workplace, can you do anything about it legally as an employee? Are you subject to the whims of your manager’s moods? What if your supervisor yells at you when a project is late? Can you sue him or her?

What if your office culture falls on the other end of the spectrum? Perhaps your boss says that your workplace is like a family. After all, you celebrate birthdays and go to happy hours together, right? You know about each other’s kids and know the names of everyone’s pets. You spend more time with your co-workers than your actual family, so what’s the harm? What should you think when your manager describes your workplace as a family?

When Complaints Actually Become Legal Claims, You May Wish to Pursue

Let’s explore some common misconceptions and shed some light on them from a legal perspective. You may have a claim if your boss’s behavior Is so extreme and outrageous that it exceeds the bounds of civilized society.

The Mean Boss

You had a bad day at work. Your boss yelled at you because of a late project and acted like a jerk. This wasn’t the first time, and it probably won’t be the last. You feel you can’t continue working under these conditions. You want to fight back legally. You feel that no boss should be able to treat you this way. It’s just wrong. It’s not fair.

Unfortunately, having a jerk as a boss doesn’t give you the legal right to sue him or her. Just because you don’t think your workplace is fair, doesn’t mean you have a valid lawsuit. Your boss’s behavior may be unprofessional or intolerable. But it may not be illegal.

You may have a cause of action and can file a lawsuit if you’re working in a hostile work environment based on illegal behavior. Yelling and screaming at employees is not necessarily illegal, although you may think such behavior is. Your boss may get into legal trouble, though, if his or her hostile or harassing behavior:

  • Is directed solely at people in protected classes, based on race, religion, sex, age, national origin, disability, or other similar classifications.
  • Becomes a condition of continued employment.
  • Becomes severe enough that a reasonable person would consider the action to be hostile behavior or abusive behavior.

It is Important to Document Your Complaints

If your boss’s yelling bouts include sexist references, racial slurs, or other derogatory comments, then your boss’s behavior may justify a legal claim. But this behavior then must be so severe that it interferes with an employee’s ability to do his or her job. To pursue a legal claim, you must be able to produce evidence of such behavior and how it directly affected you in the workplace. It is also helpful to have witness testimony.

If you have a boss who is headed down this track, report the incidents to your human resources department. Be thorough and refer to any written notes or witnesses that you may have. Make sure your human resources department documents your complaints.

The Family Workplace may be a Fertile Situation for Abusive Behavior, or Maybe Not

Let’s now shift to the other end of the pendulum. Your boss assures you that at your workplace, It’s like family. Probably, there’s no menacing undertone from your boss. Most managers are attempting to create a model where their employees have a sense of belonging. With a family-like environment, managers hope to develop long-lasting, personal relationships with their employees, who in turn feel loyal to the company. Developing a family culture at work, however, can backfire. Often, boundaries are overstepped, and the dividing line between work and personal life becomes blurred.

Negative Results can lead to Complaints

Negative results could arise out of this blurring of the lines. For example, employees may be expected to work more extended hours out of loyalty, while overlooking cuts in pay or benefits. Additionally, a one-way street of loyalty could develop where the employees are expected to be loyal to the company, and the company does not return such dedication to the employees. This lack of support can extend beyond compensation and benefits to workload, praise, and career development, just to name a few. The employee could get the short end of the stick on the family approach to work.

Further, the term family is not a positive term for all employees. For some employees, it’s a warm, fuzzy, curl up by the window with a cup of tea type of word. For others, it means dysfunction. Family can be a loaded word.

A Winning Team Employs a Teamwork Approach

Better than a family-approach is a philosophy of teamwork. For example, sports teams work together to achieve one goal—to win. The make-up of the group may change over time, but the purpose and the goals of that team remain on track. Creating teams comprised of individual members is the best way for those employees to become successful, together and separately. Teams build loyalty, encourage each member to perform at the highest level, and work toward mutually beneficial goals. The employees who can’t keep up or play at the same level lose their position on the team.

Learn to Identify the Differences in Team Dynamics at the Job Interview

As a younger employee, what do you need to know about the terms family and team in the workplace? Evaluate whether using the term family automatically is a no-go. Or, determine if the term teamwork is an absolute yes. It’s not always clear and you may need further evaluation before taking that job. Don’t decide right away if you hear either of these words. Ask questions about what those words mean to your boss and to the company. When you hear those or similar words in an interview, the interviewer should want to emphasize communication, acceptance, caring, and commitment within the organization. These words typically are not a cue for dysfunction, such as inflexibility, working without purpose, or working without keeping your career goals in mind.

Reach Out to Us

If you have questions about your employee rights in the workplace, then you should contact an experienced employment law attorney at Kilgore & Kilgore. To get the conversation started, click here and fill in and send the form to us Contact Kilgore & Kilgore.

An Employer May be Liable for Sexual Harassment of an Employee in the Workplace by a Non-Employee

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Typically, in a sexual harassment or hostile work environment case, an employee alleges that he or she experienced sexual harassment by a supervisor or by another co-worker. Can an employer also be liable if an employee experiences sexual harassment by a third-party non-employee at the workplace? The answer is yes.

If you believe you have a workplace sexual harassment claim to bring against an employer, you should learn about what constitutes a sexual harassment claim and the steps you should take to start the legal process. There are several sources of information on this topic based on the experience of Kilgore & Kilgore lawyers, who handle these and other types of employment law claims against employers. To read about sexual harassment claims in the workplace, click here Sexual Harassment Lawyers. Read on in this article to see if you have a viable sexual harassment or retaliation claim; if so, to contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Title VII Protects Employees from Sexual Harassment

Title VII of the Civil Rights Act of 1964 protects employees against sexual harassment and a hostile work environment when the misconduct is attributable to the employee’s sex or other protected characteristic, such as race or religion. The alleged sexual harassment or hostile work environment must be sufficiently severe or pervasive, and must alter the terms and conditions of the employee’s employment, and create an abusive working environment.

To Win a Claim, an Employee Must Prove that the Employer Knew About the Sexual Harassment but Allowed it to Continue

Unless the harasser is a supervisor, the employee must also show that the employer knew or should have known about the sexual harassment, allowed it to continue, and failed to take any corrective action. The ultimate issue in a Title VII case is the employer’s conduct.

Courts have held that an employer can be liable under Title VII when the harasser is a third-party nonemployee, such as a customer, restaurant patron, or casino gambler. For example, a restaurant could potentially be liable under Title VII if it knows that a waitress experienced sexual harassment by a patron, and the restaurant permitted the sexual harassment to continue, and failed to take any corrective action.

A Nursing Home Patient’s Sexual Harassment Led to a Claim of a Hostile Work Environment

The U.S. Court of Appeals for the Fifth Circuit decides appeals from the federal district courts in Texas, Louisiana, and Mississippi. It recently ruled that a jury should decide whether an assisted living facility in Mississippi is liable under Title VII for an alleged hostile work environment created by a nonemployee resident. The case is Gardner v. CLC of Pascagoula, L.L.C.

In Gardner, the plaintiff, a nursing assistant, provided care at the facility for an elderly patient who suffered from a variety of physical and mental illnesses. The facility knew that the patient had a history of violent behavior and sexual behavior toward other patients and staff. The plaintiff allegedly experienced the patient’s inappropriate sexual behavior every day for years. She and other co-workers reported the incidents to their supervisors.

In one incident, the patient allegedly groped and punched the plaintiff. After this incident, the plaintiff’s request to be reassigned was denied. The plaintiff then took three months of leave and was terminated after returning to work.

In Gardner, the Fifth Circuit determined that the frequency and nature of the patient’s violent behavior and sexual behavior would allow a jury to find that a reasonable caregiver would find the conduct sufficiently severe or pervasive under Title VII, even in light of the patient’s dementia.

In addition, the Fifth Circuit found that there was sufficient evidence to show that the plaintiff’s employer knew about the hostile work environment experienced by the plaintiff but failed to take any action to remedy her work situation. The employer, the Fifth Circuit stated, violated its duty to take reasonable steps to protect its employees once it knows that they are subject to abusive behavior.

The Federal Court Reversed the District Court’s Judgement and Remanded the Case

The Fifth Circuit reversed the district court’s summary judgment in favor of the employer. It concluded that the plaintiff’s hostile work environment and retaliation claims under Title VII should go to the jury. Thus, the case was remanded to the district court for further proceedings.

Reach Out to Kilgore & Kilgore’s Employment Law Attorneys

Kilgore & Kilgore understands this issue of workplace sexual harassment and has handled many such cases. Our attorneys have brought claims and won cases for victims of employer abuse. Read the testimonials from former clients who successfully brought their claims, then wrote to Kilgore & Kilgore to express their gratitude, click here Client Testimonials. If you have a viable sexual harassment or retaliation claim you wish to discuss, contact us and hear from a Kilgore lawyer, click here Contact Kilgore & Kilgore.

Arbitration Agreements in Employment Contracts May Affect an Employee’s Ability to Win Claims

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Does your employment contract contain an arbitration provision? Does your employment contract require you to pursue a claim you might have against your employer in a private and confidential arbitration proceeding rather than before a judge and jury in open court?

Arbitration Agreements Preferred by Employers

Employers often present their employees with employment contracts containing arbitration provisions often called arbitration agreements. Employers favor arbitration to resolve claims asserted by employees because arbitration is a private, fee-based proceeding, and unlike in a court case, there are no public records or hearings. Arbitration is less formal than a court proceeding, and the rules of evidence are applied very loosely, if at all.

The Arbitration Process

Arbitrators are usually selected by the parties from a list that is provided by an arbitration administrator such as the American Arbitration Association or JAMS (formerly known as Judicial Arbitration and Mediation Services, Inc., a US-based for-profit organization of alternative dispute resolution services). Arbitrators are typically attorneys in private practice, retired judges, or specialized providers of mediation and arbitration services. Often, preliminary hearings are held by telephone. The final hearing, in which witnesses testify, is typically held in a hotel conference room or at the arbitrator’s office in a law firm or office building.

Kilgore & Kilgore represents clients in arbitrations, mediations and jury trials. To learn more about our employment law practice, click here Employment Lawyer. To contact us for a free review of the facts of your case with an employment lawyer, click here Contact Kilgore & Kilgore.

Class Actions or Collective Actions are Possible in Arbitrations

Employees might be able to bring a class action or collective action against an employer under several different employment laws. For example, under the Fair Labor Standards Act (FLSA), a large number of employees could potentially opt in to a collective action in order to bring a claim for unpaid overtime wages against an employer.

A class action, or collective action as it is sometimes called, is an efficient way for employees to bring a claim against an employer. An employee’s claim for unpaid wages, individually, is often impractical to assert in a legal proceeding because of the amount of wages at issue and the legal expense. However, when many employees join together in a collective action, their claim for unpaid wages in the aggregate can be quite significant. Such an action may deter an employer from engaging in misconduct in the future.

Some arbitration provisions specifically prohibit employees from participating in a class action or collective action against an employer. Some arbitration provisions may instead require each employee to arbitrate his or her claim individually. In a recent case decided by the U. S. Supreme Court, these arbitration provisions were upheld as lawful.

The U. S. Supreme Court Upholds Clauses in Arbitration Agreements that Require Claims Be Made Individually

In a case known as Epic Systems Corp. v. Lewis, consolidated appeals from the Seventh, Ninth, and Fifth Circuits were heard. The U.S. Supreme Court held that employers, through contractual arbitration provisions, can require their employees to arbitrate their claims on an individual, piecemeal basis.

This opinion, written by Justice Gorsuch, is a big win for employers and a disappointment for employees. In Lewis, the U. S. Supreme Court reversed the Seventh and Ninth Circuits, both of which had previously held that the arbitration provisions at issue were unenforceable. In an earlier blog, we wrote about the Lewis decision by the Seventh Circuit. In that article, we indicated that there was a split among the federal circuit courts, and that the U. S. Supreme Court would probably decide the issue in the future. Click to see previous article Employers Use Arbitration to Resolve Employee Disputes. The U. S. Supreme Court has now spoken.

In Lewis, the U.S. Supreme Court determined that the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., requires an individualized arbitration proceeding if that is what the parties agreed to in their contract. The U. S. Supreme Court rejected the employees’ arguments that the saving clause in section 2 of the FAA and the concerted activities language in section 7 of the National Labor Relations Act (NLRA), 29 U.S.C. § 157, rendered the arbitration provisions at issue unenforceable.

The FAA Requires Enforcement of Arbitration Agreements

The FAA generally requires courts to enforce arbitration agreements. Section 2 of the FAA states that an agreement to arbitrate shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. It is usually quite difficult for an employee to avoid an arbitration agreement in a contract.

The U.S. Supreme Court Decision Further Limits Defenses to Enforce Arbitration Agreements

There are only a few defenses to enforcement of an arbitration agreement. The U.S. Supreme Court found that the saving clause in Section 2 of the FAA applied only to general contract defenses, such as fraud, duress, or unconscionability, not to a defense that specifically targeted individualized arbitration.

The U.S. Supreme Court also rejected the employees’ argument that section 7 of the NLRA made the arbitration agreement at issue unenforceable. Section 7 guarantees employees the right to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

Employees Sought Their Right to Class Action or Collection Action but Lost

The employees argued that they had a right to class action or collective actions as protected concerted activities under section 7 of the NLRA. The U.S. Supreme Court was not persuaded by this argument. Instead, the U. S. Supreme Court decided that section 7 of the NLRA did not displace or conflict with the FAA. Section 7 of the NLRA, according to the Court, had no effect on the enforceability under the FAA of the individualized arbitration agreements at issue.

Thus, after the U. S. Supreme Court’s decision in Lewis, certain employees will have to assert their claims in individualized arbitration proceedings, rather than in class actions or collective actions, if required by their arbitration agreements.

If you have questions about your rights under an arbitration agreement provision in your employment contract, then you should contact an experienced employment law attorney at Kilgore & Kilgore. To get the conversation started, click here and submit a form Contact Kilgore & Kilgore.

Recent Case Focused on Workplace Sex Discrimination Claim Involving Gender-based Wage Disparity

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Discrimination based on an employee’s sex has been, and still is, illegal. Yet, it remains a serious problem in the workplace. Throughout history, women have been paid less than men for performing the same work. In 1963, Congress passed the Equal Pay Act (EPA), which specifically prohibits wage discrimination based on sex. The next year, Congress passed the Civil Rights Act of 1964. Title VII of the Civil Rights Act of 1964 also prohibits employment discrimination based on sex, as well as on other factors.

#MeToo Movement Triggers Interest in Sex Discrimination in the Workplace

The #MeToo movement has recently sparked a greater awareness of sex-based pay disparity in many industries. In an opinion filed in April, the U.S. Court of Appeals for the Ninth Circuit held that, under the EPA, a female employee’s prior salary alone, or in combination with other factors, cannot support a difference in pay between men and women for equal work. The case is Rizo v. Yovino.

Sex Discrimination Claims Start at the EEOC Office

The Equal Employment Opportunity Commission (EEOC) enforces claims under the EPA and Title VII. In order to pursue a claim under the EPA, an employee must first file a charge of discrimination with the EEOC. Strict deadlines apply to filing the charge. The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you suffer from wage discrimination by your employer, click here to learn more about the EEOC process and how Kilgore & Kilgore can help you. EEOC – Kilgore & Kilgore.

Earnings and Sex Discrimination Defined Differently in the Statutes

Unlike Title VII, the EPA is narrowly aimed at prohibiting sex-based wage disparity. The Equal Pay Act makes it unlawful for an employer to discriminate between employees on the basis of sex by paying wages to employees…at a rate less than the rate at which [it] pays wages to employees of the opposite sex…for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.

Recoveries May Include Back Pay, Liquidated Damages and Attorney’s Fees

An employee who asserts a claim under the EPA must establish that even though she performs equal work to her male counterparts under similar conditions, her employer nevertheless pays different wages to men and women. An employee who prevails on an EPA claim can recover damages such as back pay for the difference in wages, liquidated damages, and attorney’s fees from her employer.

Some Wage Disparities Not Considered Sex Discrimination

The EPA, however, does allow an employer to pay different wages to men and women for equal work if the payment differential is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any other factor other than sex.

Courts Are Still Divided on the Interpretation of the Laws Regarding Equal Pay for Equal Work

Many courts have examined the meaning of the catchall provision a differential based on any other factor other than sex. Many court have discussed whether or not a female employee’s prior salary could support a difference in pay between men and women for equal work.

The Rizo v. Yovino Case

Aileen Rizo, the plaintiff, was a math consultant in the Office of Education for Fresno County, California. When Rizo was hired, Fresno County calculated her salary, in part, based upon her prior salary in Arizona. During lunch, Rizo learned that the male math consultants in her office had been hired at higher salaries. Rizo subsequently filed a lawsuit against the Fresno County Superintendent of Schools for a violation of the EPA, sex discrimination under Title VII, and other violations of California law.

Appeals Court Affirms the Trial Court’s Decision and Sends the Case Back

The Ninth Circuit en banc affirmed the trial court’s denial of summary judgment to Fresno County and remanded the case. The Ninth Circuit rejected Fresno County’s affirmative defense that Rizo’s prior salary in Arizona was any other factor other than sex for the purpose of the statutory exception to the EPA. Instead, the Ninth Circuit held that the statutory exception, any other factor other than sex, is “limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.”

The Ninth Circuit determined that an employee’s prior salary could not be any other factor other than sex because an employee’s prior salary could have been tainted by the same sex-based discrimination that the EPA sought to prohibit. In addition, an employee’s prior salary is not a legitimate, job-related factor, according to the Ninth Circuit. Thus, prior salary is not included in the statutory exception and cannot be a basis for the payment of disparate wages to men and women for equal work. “Prior salary is not job related and it perpetuates the very gender-based assumptions about the value of work that the Equal Pay Act was designed to end,” the Ninth Circuit stated.

Sex Discrimination Occurs in Many Different Types of Situations

Perhaps you suffer from sex or wage discrimination in the workplace. If so, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free evaluation of the facts of your case.

Courts Split on Sex Discrimination Legal Doctrine Leading to Possible U.S. Supreme Court Involvement

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The Second Circuit U. S. Court of Appeals has recently decided that Title VII of the Civil Rights Act of 1964 protects against discrimination based on a person’s sexual orientation. In the case Zarda v. Altitude Express, Inc., the Second Circuit appeals court in New York, sitting en banc, overturned its prior precedent-setting decisions determining that claims for sexual orientation discrimination were not cognizable under Title VII.

Zarda Court Held That Sexual Orientation Discrimination Is a Subset of Sex Discrimination

Title VII makes it unlawful for an employer to discriminate against any employee with respect to the individual’s “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ….” In Zarda, the Second Circuit appeals court determined that sexual orientation discrimination is a subset of sex discrimination and that claims for sexual orientation discrimination could therefore proceed under Title VII.

The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you have suffered from sex discrimination by your employer, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free review of the facts of your situation.

The New York District Court Had Dismissed Zarda’s Sex Discrimination Claim

Zarda, a gay man, was a skydiving instructor. He told a female client with whom he was preparing for a tandem skydive that he was gay in order to make her more comfortable while strapped to his body. The client alleged that Zarda inappropriately touched her and disclosed his sexual orientation to try to excuse his conduct. After the jump, the client told her boyfriend about Zarda’s alleged behavior. The boyfriend informed Zarda’s boss who then fired Zarda.

Zarda filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) and subsequently filed a lawsuit in federal district court in the Eastern District of New York. In his lawsuit, Zarda asserted a claim for sexual orientation discrimination under New York law and a Title VII discrimination claim based on sex stereotyping. The district court, relying on the Second Circuit’s prior cases, granted summary judgment for the employer on Zarda’s Title VII claim. After losing at trial on his sexual orientation discrimination claim under New York law, Zarda appealed. Eventually the full Second Circuit heard the matter en banc, vacated the district court’s summary judgment, and remanded the case.

The EEOC and the Seventh Appeals Court Have Held That Sexual Orientation Discrimination is Sex Discrimination

While Zarda’s lawsuit was pending before the federal district court, in 2015, the EEOC held for the first time in the Baldwin matter that an allegation of sexual orientation discrimination is an allegation of sex discrimination under Title VII. In addition, in 2017, the Seventh Circuit appeals court sitting en banc held in the Hively case that sexual orientation discrimination is a form of sex discrimination for purposes of Title VII. Click here to see our previous blog on that ruling: Hively Sex Discrimination Case.

The Legal Doctrine Regarding Sexual Orientation Discrimination is Evolving

In Zarda, the Second Circuit appeals court relied on the evolving legal doctrine regarding sexual orientation discrimination found in the EEOC’s Baldwin decision and in Hively. The Zarda court agreed with both the EEOC and the Seventh Circuit appeals court that a claim for sexual orientation discrimination is a claim for discrimination “because of sex” under Title VII. The U.S. Department of Justice in Zarda disagreed with the EEOC and argued that a claim for sexual orientation discrimination is not cognizable under Title VII.

The Second Circuit appeals court concluded that sexual orientation discrimination is motivated, at least in part, by an individual’s sex because sex is a factor in sexual orientation. Sexual orientation, according to the appeals court, is a function of sex. Thus, sexual orientation discrimination is comparable to sexual harassment, gender stereotyping, and “other evils” that violate Title VII because of an individual’s sex.

The Second Circuit appeals court further reasoned that sexual orientation is a proxy for sex because an employee would be treated differently “but for” his or her sex. A gay man who is discriminated against because he is attracted to men would have been treated differently had he been a woman attracted to men. Thus, the court concluded that sexual orientation discrimination is a “subset of sex discrimination.”

Gender Stereotypes Are Another Form of Sex Discrimination

The appeals court also found that sexual orientation discrimination was rooted in gender stereotypes, another form of discrimination “because of sex.” The appeals court further determined that sexual orientation discrimination is a type of associational discrimination based on an employer’s opposition to an association between individuals of a particular sex in violation of Title VII.

The dissent in Zarda, although supportive of the prohibition of sexual orientation discrimination, argued that in 1964, Congress did not prohibit sexual orientation discrimination in Title VII. Instead, Congress chose to address specific social problems of the time in Title VII, but that did not include sexual orientation discrimination.

Federal Circuit Courts of Appeals Are Split over Sex Discrimination Legal Doctrine

There is a split in the federal circuit appeals courts regarding whether or not sexual orientation discrimination is actionable under Title VII. The Seventh Circuit in Hively and the Second Circuit in Zarda have held that a claim for sexual orientation discrimination is a claim for sex discrimination and can proceed under Title VII. The Eleventh Circuit, on the other hand, has held the opposite. Thus, at some point in the future, the U.S. Supreme Court may have an opportunity to decide the issue.

Sex Discrimination Occurs in Many Different Types of Situations

Perhaps you suffer from sex stereotyping or sex discrimination and have experienced an adverse employment action in the workplace. If so, click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.

Sabine Pilot Rule Expands Causes of Action: Whistleblower and Retaliation Laws Have More Causes of Action

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Would you have a cause of action if you refused to perform an illegal act at work and your employer fired you solely for that reason? If you are a whistleblower regarding an employer’s unlawful conduct, and your employer engages in retaliation against you, would you have a cause of action? State and federal laws apply to different situations and various industries. The Texas Supreme Court created an exception to the at will doctrine in 1985 with the Sabine Pilot case. This exception states that an employer in Texas may not legally terminate an employee for the sole reason of refusing to commit an illegal act.

Sabine Pilot and whistleblower cases can be complicated. If you have experienced either of these situations, you should contact an attorney to discuss the specific facts of your situation. You may or may not have a legal Sabine Pilot or whistleblower retaliation claim. To read about retaliation in the workplace, click here Dallas Employment Retaliation Lawyer. To read about whistleblower protection, click here Whistleblower Protection Attorney. Read on in this article to learn more about these topics.

Employment at Will

Texas is an employment at will state. This means that an employer in Texas can terminate an employee at any time and for just about any reason, unless a specific law or case is violated. Hence, an employer normally does not need cause to terminate an employee.

An Employment Contract Provides Protection

An employee who has a written employment contract for a specific term of employment would probably not be an employee at will. Typically, an employment contract specifies the kind of advance notice that must be given and the cause that the employer must have in order to terminate the employee before the employment term has expired. Thus, an employee can potentially gain some protection with an employment contract in place.

Employment Discrimination is Illegal

Of course, even under the permissive employment at will doctrine, an employer may not fire an employee for an illegal reason. For example, an employer cannot terminate an employee on the basis of an employee’s race, color, religion, sex, or national origin. Employment discrimination is unlawful under both state and federal law.

Wrongful Termination for Refusing to Perform an Illegal Act

An employer may not fire an employee in Texas solely because she or he refused to perform an illegal act. This is a narrow exception to the employment at will doctrine. The Texas Supreme Court created this exception in 1985 in the case known as Sabine Pilot Service, Inc. v. Hauck.

In this important case, commonly known as Sabine Pilot, Hauck was employed as a deckhand for Sabine Pilot. He testified that the company instructed him to pump daily the bilges of the boat that he worked on. Hauck noticed a placard on each boat stating that it was illegal to pump the bilges into the water, so he called the U.S. Coast Guard. The U. S. Coast Guard confirmed to Hauck that pumping bilges into the water was indeed illegal. So, Hauck refused to do so.

Hauck testified that the company fired him because he refused to illegally pump the bilges into the water. However, Sabine Pilot, through one of its officers, testified that Hauck was terminated for his refusal to swab the deck, man a radio watch, and other derelictions of duty.

In the Sabine Pilot case, the Texas Supreme Court held that an employer cannot discharge an employee for the sole reason that the employee refused to perform an illegal act. This decision was based on public policy. In order to have a cause of action, the employee must show that she or he was discharged solely because of her or his refusal to perform an illegal act, and not because of any other reason. This is a strict standard and a high burden of proof for an employee. In addition, the illegal act that the employee refused to perform must be subject to a criminal penalty.

Whistleblower Protections under Texas Law

A whistleblower is an employee who has witnessed illegal activity in the workplace and takes action. Typical actions might be reporting the unlawful conduct to a supervisor at work, to a governmental entity, or to a law enforcement authority. Certain whistleblowers are protected under specific state and federal laws. The Texas Whistleblower Act can be found in Chapter 554 of the Texas Government Code.

It protects an employee of a public, but not private, entity from retaliation if she or he in good faith reports a legal violation by the employer. The employer must be a governmental entity or a public employee and the report would have to be made to an appropriate law enforcement authority.

In addition, certain workers and professionals in nursing homes, mental health facilities, and hospitals are protected under Texas law against retaliation if they become whistleblowers.

Whistleblower Protections under Federal Law

Federal law provides protection to certain employees who become whistleblowers on violations of:

  • Securities laws at public companies,
  • Aviation laws and regulations,
  • Laws regulating the handling of toxic substances, and
  • Laws and regulations of the Occupational Safety and Health Administration (OSHA).

There are numerous other state and federal laws that provide protection to whistleblowers in particular professions and industries.

Reach Out to Kilgore & Kilgore’s Texas Retaliation Attorneys and Dallas Whistleblower Lawyers

Were you fired because you refused to perform an illegal act at work? Did you become a whistleblower on unlawful conduct at work? If your answer is yes, contact the employment lawyers at Kilgore & Kilgore to discuss the specific facts of your situation. Just click here, Contact Kilgore & Kilgore.