Law - A Layman’s Guide
In Texas, there is no such thing
as “wrongful termination”!
That’s because Texas is an employment at will state,
which means that an employer can fire an employee for “good
cause, without good cause, or for any reason whatsoever.” However,
certain people, such as engineers, airline pilots, or union
members have a written contract of employment that sets out
the reasons the employee can be fired, and the method through
which this occurs.
Other states are “for cause” states, which
means that an employer may be sued for wrongfully terminating
an employee if the employee can show that the employer did
not have a “good cause” to terminate him/her.
Not in Texas. An employer here doesn’t even have to
give a reason for termination!
Exceptions to Employment at Will
There are only a few exceptions to this “employment
at will” rule. One is, the Labor Code Section 451,
which says an employer cannot terminate an employee for filing
a lawsuit for a workers compensation claim, or hiring a lawyer
to do that.
The second is for various discriminatory practices that
violate the State and US Constitutions. This requires the
employee to first “exhaust all their administrative
remedies” (file and have determined by the Equal Employment
Opportunity Commission or preferably, the Texas Commission
on Human Rights in Austin the “charge” of discrimination).
This means you have to file your claim with either the TCHR
form, which must be filed within 180 days of termination,
or the EEOC here in Houston (1919 St. Joseph Parkway, Mickey
Leland Federal Bldg), AND have the claim “determined.” Sometimes
these government agencies do not follow through, and decline
to make a ruling or even rule in favor of the employer. In
any case, at the conclusion of the administrative claim,
you will receive a “right to sue letter,” before
any lawyer can help you with a lawsuit.
YOU HAVE TO SHOW A PRIMA FACIE (Latin
for “BASIC”) CASE THAT YOU WERE DISCRIMINATED
AGAINST (treated differently from those not in that class)
BECAUSE OF YOUR:
- NATIONAL ORIGIN (foreigner; now, middle easterners are
the most often discriminated against)
- AGE (40 or older)
- RELIGION (Muslims most often discriminated against now)
- HIV/AIDS STATUS.
Filling out the charging forms correctly
Remember to fill out the charging form and allege discrimination
in every category above that even remotely “fits” your
situation; if you don't allege one of the above categories
of discrimination, once the determination (“ruling”)
is made, you are forever barred from suing for that type
of discrimination. If you don't have some evidence
of discrimination on the basis of one or more of these categories,
you can't win. Additionally, each claim of adverse job actions
needs to be separately stated; i.e. if you believe you were
denied promotion, or demoted, that needs to be specifically
stated in the charging forms, in addition to termination
and all other “adverse job actions” you experienced
because of protected status (7 categories above). Also, if
your employer had fewer than 15 employees at the time of
your termination, the discrimination laws do not apply to
it at all.
Why I prefer not to be "officially
involved" during administrative part
I would like to represent you, but I have found
that if I get involved early on, the large corporate employers
handle the claim with extra attention to detail. If I'm not
involved as claimant's counsel early on, I find employers
make silly mistakes, and write sometimes unflattering things
in their filings to the Commission!
The reason I recommend filing with the State (TCHR) and
not the Federal (EEOC), is that the State employees administer
the program better than the Federal. They are less overworked,
and better paid, and they seem to care more. If you need
assistance, please call me and I'll give you some pointers
on filling out the forms.
Remember, regardless of the ruling the TCHR makes (in your
favor or in employer's favor -- or, no ruling at all), you
will be issued the “right to sue” (RTS) letter.
During the 60 or 90 days within which you must file suit
after receipt of the RTS letter, you should contact me, and
then I will look carefully at your case and decide if it
is one that I can accept. If I do accept your case, it will
be on a “contingency fee” basis, meaning I will
be paid with a percentage of the recovery (settlement or
judgment), and not hourly.
"The way the ball bounces" in
If I agree to take your case, we will file suit within
the 60 days (TCHR) or the 90 days (EEOC) allowed by law.
I believe that an educated client is the best client, and
good and wide-open attorney-client communication produces
the very best results. Therefore, it is important for you
to understand the “burden of proof” and the way
it “shifts” back and forth from plaintiff (you)
to defendant (your former employer).
Like Basketball (where the ball is the proof needed to
win), one side or the other has to start out with the ball.
In a civil case, the ball (“burden of proof”)
starts out with the Plaintiff. In an employment case, the
Plaintiff must first show that he/she is a member of one
or more of the protected classes of citizens. Those are:
race (a minority one), sex (female), national origin (foreigner,
not American), age (40 or over), religion (not Christian,
usually, or a very rare or strange religion such as Druid,
Wicca, etc.), handicapped, or AIDS/HIV positive. Once the
Plaintiff proves that he/she “fits” one of these
categories, and has had an “adverse
job action” (AJA) such as demotion, layoff, termination,
or such extreme harassment that they were forced to quit,
the burden of proof “shifts” back to the Defendant
(former employer). The Defendant then must show that the
Plaintiff does not fit in one of the protected categories,
or, that the reason for the adverse job action was taken
because of a “legitimate, non-discriminatory” reason,
usually poor performance. If the Defendant puts on sufficient
evidence like this, then the ball bounces back into Plaintiff’s
side of the court. Plaintiff must then show that the non-discriminatory
reason(s) for the AJA given by the Defendant is “pretextual.” “Pretext” means
that the reasons given were “trumped-up,” “fake” or
otherwise not real. If Plaintiff proves this (that is, if
the jury believes that the reasons given by the
former employer for the AJA were a pretext for discrimination,
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