On September 5, 2018, board-certified employment attorney Kerry O’Brien participated as the “employee lawyer’s perspective” for the “Who is the client?” presentation to the Austin Bar Association Labor & Employment Section. The panel discussion with Kerry and three employer-side attorneys discussed the ethical considerations involved in determining when someone is, and is not, a “client.” […]Read More
Many people in Texas believe that because Texas is an “at-will employment” state, or “right-to-work” state, you can be fired for any reason. That’s actually not true – you can be fired for any reason that’s not illegal.
“Wrongful termination” is a broad category of cases that the employment lawyers at the O’Brien Law Firm handle daily. Here are some of those situations:
Discrimination because of who you are
It can be illegal to fire someone when motivated in whole or in part by the employee’s (or job applicant’s) race, religion, sex, national origin, disability or age (over 40). Furthermore, an employee’s (or job applicant’s) sexual orientation is a protected category in some Texas cities, including Austin and Fort Worth, and is being increasingly treated by the EEOC as covered under our federal anti-discrimination laws. (Previous court cases have said sexual orientation discrimination wasn’t explicitly covered.) Keep in mind that most anti-discrimination laws require that the employer have a minimum of 15 employees before that employer’s employees are protected by the anti-discrimination laws. There are exceptions and sometimes workarounds (especially when the employer has multiple, closely related small businesses), so talk to a board-certified employment attorney before giving up and thinking there’s nothing you can do about your termination.
Retaliation related to a workers’ comp injury or claim
An employer generally cannot fire you or otherwise discriminate against you because:
- You filed a workers’ compensation claim;
- You retained an attorney to assist you with your workers’ comp claim; or
- You participated in a workers’ comp legal proceeding.
Two things about this:
1) First, Texas is the only state that doesn’t require employers to get workers’ compensation insurance. This anti-retaliation law only covers actual workers’ comp injuries where there is workers’ comp insurance governed by Texas law. Companies that don’t carry workers’ comp insurance in Texas (which includes Wal-Mart as of late 2016) may have their own on-the-job injury management plans, but they don’t have “workers’ comp insurance.” Therefore, since there is no workers’ comp claim or workers’ comp legal process going on, this anti-retaliation law wouldn’t protect you. However, you may have rights under other laws, such as the Americans With Disabilities Act and the Family & Medical Leave Act, just depending upon your circumstances. You should definitely talk to a board-certified employment attorney.
2) You don’t have to literally “file” a workers’ compensation claim to get protection. The fact that you have suffered a workers’ comp injury may be enough to get you protection from retaliation from your employer. Again, talk to a board-certified employment attorney.
Retaliation for complaining about illegal discrimination or illegal overtime or minimum wage practices
The law doesn’t just protect you from illegal discrimination. It protects you from retaliation for making certain complaints about illegal discrimination or certain illegal pay practices. For instance, if you tell your supervisor that you want him to stop using racial epithets when talking to you and other employees, and he fires you for the complaint, that termination may be illegal. Also, if you complain to a company officer that the company is changing your timecards and shorting you overtime pay, and you are fired for your complaint, you may also have been illegally terminated. The law is designed to allow you to make complaints about certain illegal work practices without concern that you could be (legally) terminated for doing so. Talk to a board-certified employment attorney if this applies to you.
Interfering with your FMLA rights
An employer cannot interfere with your rights under the Family & Medical Leave Act when you’re covered for it. If you are taking leave covered by the FMLA, the company must return you to your same job when you return within the 12 weeks allowed by the law. The employer also cannot retaliate against you because you need to take FMLA – which unfortunately a few employers may do because they consider you a hassle, or a drag on their bottom line. The law protects you from this.
Keep in mind that in most cases, the FMLA will not apply unless (1) you have worked for the employer for at least 1 year by the time you need to take the FMLA leave, and you worked for at least 1,250 hours in the year before you need to take the leave. Furthermore, a private employer must have more than 50 employees within a 75-mile radius of your worksite in order for you to be protected by the FMLA. So not everyone is protected by the FMLA. Talk to a board-certified employment attorney about your situation.
There are substantial protections through the Uniformed Services Employment and Reemployment Rights Act (USERRA) for our military members who have to interrupt their job tenure to serve our state and nation. It is a complex law that provides for certain rights and return-to-work periods depending upon the length of the service member’s duty period. Talk to a board-certified employment attorney if you have any concerns that you lost your job, were denied job benefits or were demoted due, in whole or in part, to job leave related to your military service.
Reporting Violations of Law in a Health Care Environment
For health care-related employees, such as doctors, nurses (RNs, NPs, LVNs, etc.) and senior-care facility and home healthcare workers, you cannot be fired because you reported violations of law or safety regulations to your supervisor, the state regulatory agency or another person described in the law. The law wants to ensure that our state’s patients and facilities are safe and compliant with the law. Health care employees are “eyes on the ground” that can help with safety enforcement. Therefore, the law protects you for making a good faith complaint about something that you genuinely believe is violating the law at your facility. If you believe that you may have lost your job because of something like this, talk to a board-certified employment attorney ASAP. The deadlines for taking action in these cases can be relatively short.
Government Employees – Free Speech and Whistleblower activities
If you were a government employee who was fired or otherwise discriminated against in your job status, pay or benefits because you exercised your constitutional free speech rights, you may have been illegally terminated. Private employers can restrain your free speech rights but the government cannot. Whether the governmental employer violated the law against you depends a lot on what your job position was and what you specifically said publicly. Talk to a board-certified employment attorney.
And if you were a government employee who was terminated or otherwise discriminated against because you reported to a law enforcement agency that another government employee was violating the law, that termination could be illegal. The Texas Whistleblower Act has a relatively short deadline, so if this might apply to you, talk to a board-certified employment attorney ASAP.
“But what if I was forced to resign?”
“Wrongful termination” can also include situations where the circumstances became so difficult that you had to quit, or when the employer tells you that if you don’t quit, you’ll be fired – and the reason they were forcing you to quit was an illegal reason. We also handle cases where you were demoted, or reassigned to a worse position, or passed over for a promotion, because of something above. Although you still have a job, your state or federal employment rights may have been violated.
“What if I was fired because of a personality conflict? I don’t think my manager liked me. It sure seems like a wrongful termination.”
Yes, but probably not illegal. There are many terminations in Texas that are unfair, or morally and ethically wrong – but not illegal. The phrase “wrongful termination” should probably be replaced with “illegal termination.” An employer can fire you because they ultimately decide you’re not a good fit for the company, as long as the reason you’re not a good fit isn’t because of a protected characteristic, like your race or religion. If it’s a personality conflict – that’s not illegal. If the employer found out that you’re a Muslim and decided they wanted to concoct a reason to fire you because of that – that would likely be illegal, presuming the employer has enough employees to be covered under the law.
Our firm routinely handles these cases on contingency – where our attorney fees primarily come from your recovery in the case. As in – when you win, we win. We stand shoulder-to-shoulder with your success.
Call us NOW at (512) 410-1960 or contact us through the form below. Your information is confidential and goes directly to the employment attorney Kerry O’Brien. It is our policy to get back to you within one business day if at all feasible.
On June 21, 2018, the O’Brien Law Firm sued Compass Datacenters, LLC on behalf of the firm’s client, a former sales director who, as the lawsuit alleges, was denied $200,000 in earned commissions from his work on the Tierpoint Tulsa Datacenter lease and a project for American Electric Power. In June 2017, Compass Datacenters’s CEO, Chris […]Read More