Employment 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 doctrine

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:

  1. RACE
  3. NATIONAL ORIGIN (foreigner; now, middle easterners are the most often discriminated against)
  4. AGE (40 or older)
  5. RELIGION (Muslims most often discriminated against now)

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 court

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, Plaintiff wins.

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