Employment Law FAQ

Filed Under: Articles, Business Litigation, Employment Law

  • What does “employment-at-will” mean?

Texas is an employment-at-will state. This rule – which applies to all phases of the employment relationship – means that absent a statute, common law rule, or an express agreement (such as an employment contract) to the contrary, either the employee or the employer may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

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  • What does wrongful termination mean?

There are several statutory and common law exceptions to the employment-at-will doctrine in Texas. Title VII of the Civil Rights Act and The Texas Labor Code prohibit an employer from terminating employees based upon their race, color, religion, gender, age, national origin, disability, or citizenship. These laws apply to all private employers, state and local governments, and education institutions that employ 15 or more individuals.These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

It is also unlawful for an employer to terminate an employee for participating in protected activity (something the law entitles an employee to do without fear of retaliation), bringing suspected wrongdoing to the attention of competent government authorities (state and federal whistle blowing statutes), filing various types of claims (such as claims under the OSHA, federal wage and hour, workers’ compensation, and employment discrimination statutes), military duty, jury duty, voting, and engaging in union activity.

Finally, it is unlawful for an employer to terminate an employee for refusing to commit a criminal act and a discharge is wrongful if it would violate an express employment agreement.

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  • What does “constructive discharge” mean?

Constructive discharge occurs when an employer makes an employee’s work conditions so intolerable that the employee is forced to resign. An example of constructive discharge is when an employer wants to fire an employee but decides against it. Instead, the employer takes actions (such as demoting the employee, stripping the employee of important job duties, or creating a hostile or punishing environment) that make the employee so uncomfortable that the employee eventually quits.

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  • What is retaliation?

The Texas Labor Code and Title VII of the Civil Rights Act of 1964 protect individuals against employment discrimination on the basis of race, color, national origin, sex, or religion as well as retaliation. An employer may not fire, demote, harass or otherwise “Retaliate” against an individual for filing a charge of discrimination, participating in a discrimination proceeding, or otherwise opposing discrimination.

Generally, retaliation claims do not require proof of the underlying discrimination or harassment. The charging party must only prove that 1) he or she made a claim of discrimination or harassment, which is a protected activity, 2) he or she suffered an adverse employment action, and 3) there is a causal connection between the protected activity and the adverse employment action.

Example: Jane informs the Human Resource director at her company that she believes her boss is sexually harassing her. In the weeks after her complaint, Jane is demoted to a position that pays less and has fewer responsibilities. Jane files an EEOC (Equal Employment Opportunity Commission) claim alleging her demotion was retaliatory. If Jane can prove that her demotion was caused by her complaint to Human Resources, her company is in violation of Title VII. Jane does not have to prove she was sexually harassed.

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  • What is the Equal Pay Act?

The EPA prohibits employers from discriminating on the basis of sex in the payment of wages or benefits, where men and women perform work of similar skill, effort, and responsibility for the same employer under similar working conditions.

The EPA prohibits employers from reducing wages of either sex to equalize pay between men and women. A violation of the EPA may occur where a different wage was/is paid to a person who worked in the same job before or after an employee of the opposite sex. A violation may also occur where a labor union causes the employer to violate the law.

The EPA applies to nearly all employers and does not require a minimum number of employees.

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  • What is pregnancy discrimination?

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act of 1964. Discrimination on the basis of pregnancy, childbirth, or related medical conditions constitutes unlawful sex discrimination under Title VII, which covers employers with 15 or more employees, including state and local governments. Title VII also applies to employment agencies and to labor organizations, as well as to the federal government.

The law forbids discrimination when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment.

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  • What does the Age Discrimination in Employment Act prohibit?

The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA, and its age discrimination prohibitions, applies to all private employers who have 20 or more employees and to federal, state and local governments. Age discrimination is also prohibited by employment agencies and labor organizations.The ADEA applies to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA allows employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA.

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  • Can an employer implement a “speak English-only” rule?

A policy requiring employees to speak only English at all times on the job may violate Title VII, unless an employer shows it is necessary for conducting business. If an employer believes the English-only rule is critical for business purposes, employees have to be told when they must speak English and the consequences for violating the rule. Any negative employment decision based on breaking the English-only rule will be considered evidence of discrimination if the employer did not tell employees of the rule.

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  • Who is eligible for FMLA leave?

Protection under the Family and Medical Leave Act is only available to employees of an employer with 50 or more employees, who were employed at least 12 months, and who worked in excess of 1,250 hours in the previous 12 month period. An eligible employee can take Family and Medical Leave:

    • for the birth of a child, whether mother or father;
    • for the placement of a child for adoption or foster care;
    • to care for a spouse, child, or parent who has a serious health condition;
    • to care for one’s own serious health condition, if it makes one unable to perform the functions of his or her job; and
    • to provide caregiver or exigency help for a spouse, son, daughter, or parent who is a member of the military service.

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  • Is it necessary for my company to have an employee handbook?

An employer is not required by law to have an employee handbook, but we recommend it. An employee handbook provides the employees with a record of at least some of the employer’s important policies and procedures of the employer, reducing the risk of miscommunication.

While a handbook is not required, there are certain provisions that are required if you choose to maintain a handbook. In particular, the Family and Medical Leave Act requires employers who distribute handbooks to include certain notice provisions.

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