Frequently Asked Legal Questions
The following is a list of typical legal questions I get asked regarding discrimination, injury on the job, employee and employer rights. If you have question that you’d like me to answer, contact me.
Who can file a claim for discrimination?
Employment laws are designed to prevent discrimination based on things we simply cannot change about ourselves (like race, gender, age, national origin, or a disability) or should not have to change (like one’s religion or a pregnancy). Almost everyone falls into one or more of these “protected” classes or categories. These laws provide that an employer should not treat an employee or job applicant differently than other persons who do not fall into that category.
Determining if one has a basis for a lawsuit is therefore a question about the employer’s motive. It is not enough to show that one falls into a protected category and suffered an adverse employment decision (like termination or a demotion), one must prove the adverse action was taken because of one’s protected status. This is most often done by presenting evidence that other employees who are not in the same class were treated more favorably. For example, if a company pays women less than the men for doing substantially the same job, it’s sex discrimination.
But keep this in mind – these laws simply require employers to treat everyone the same – they are not guarantees that everyone will be treated well. I often get calls from employees complaining about the way they have been treated on the job, but as long as the employer is equally good or bad to all of its employees, it is probably not discrimination.
How do I file a claim for discrimination?
It is best to contact an employment lawyer to assist with the process, and you can even waive your claim if you do not handle the paperwork correctly or in a timely fashion. However, it is possible to get started with the process on one’s own by filing a charge of discrimination with either the Equal Employment Opportunity Commission (“EEOC”) or the Texas Workforce Commission, Civil Rights Division. Both have helpful resources that are available over the internet.
How long do I have to file a discrimination claim?
It depends on which agency you go to. The deadline to file with the Texas state agency is 180 days after the discriminatory action being complained of, whereas one can file a charge of discrimination with the EEOC up to 300 days after the act complained of.
I haven’t been fired but I think my employer is discriminating against me. What can I do?
Anti-discrimination laws are not limited to terminations. If an employer, supervisor, or sometimes even co-workers harass you or take other negative actions against you because of your status (race, color etc.) it may be actionable discrimination. You should report such actions to your supervisor, or if the supervisor is the problem, to Human Resources or someone else in a position to deal with it at a managerial level. You should also know that most employment laws forbid retaliation against you for making such complaints in good faith. If you need additional help, contact an employment lawyer.
What happens after I file the charge of discrimination?
First, you wait. These are governmental agencies and they do not do things very quickly. Maybe the most important thing to remember is to make sure the agency has your current contact information, so if you move, you should both call and write to the agency to give them a good mailing address. Eventually, you are likely to receive a document in the mail called a Notice of Right to Sue (if you filed with the EEOC) or a Notice of Right to File a Civil Action (if you filed with the Texas Workforce Commission). If you do not receive this within 180 days, you may be able to speed things up by asking the agency to issue and send you this notice.
Once you receive the notice, you then have only a certain number of days to file a lawsuit (90 days if you filed with the EEOC, but only 60 if you filed with the Texas Workforce Commission). Even if you do not think you can afford an attorney, you should contact an employment lawyer – most are willing to provide an initial consultation free of charge and may take your case without charging you.
I was injured on the job – what do I do?
Make sure you report what happened to your supervisor, to Human Resources, or some other appropriate person at work. They will usually get all relevant information and ask you to fill out an incident report describing what happened. If they do not do any paperwork concerning your injury, something fishy is probably going on and you should contact an attorney and/or send the employer something in writing so there is a paper trial showing what happened.
You should not hesitate to report your claim and seek all payments and benefits that you may be entitled to. Texas law strictly prohibits an employer from terminating or taking adverse action against an employee who has sought to obtain workers’ compensation benefits. If the employer does retaliate against you – and some do – it may be illegal and you may be able to file a lawsuit to recover additional damages.
I never got my last paycheck – what can I do?
Texas law strictly prohibits an employer from withholding any salary and wages that have accrued, and in fact the law requires the employer to make final payment within a certain number of days. A demand letter from an attorney will usually take care of the problem, but if not you may proceed with either a wage claim (a state administrative agency proceeding) or a lawsuit, and you may be able to recover your attorney fees.
My employer deducted something from my paycheck without my permission – is that legal?
Not unless you signed something in writing authorizing the deduction.
I have a disability, but I would be able to do the job if my employer was willing to work with me on some things. What do I do?
The Americans with Disabilities Act (ADA) requires an employer to make “reasonable accommodations” if that will help you. An employer may not refuse to hire, or discriminate after hiring, based on a person’s disability if the person is otherwise able to perform the essential functions of the position.
Communication is the key here – you have to let the employer know what is going on and what you might need. At that point, the employer is required to engage in a discussion, an “interactive process,” to decide how to move forward. If the employer declines to make reasonable accommodations, or takes any adverse actions against you because of the disability or your request for accommodations, you may have the basis of a lawsuit. Filing a timely charge of discrimination is the first step, and even before filing a charge it would be good to consider a consultation with an employment lawyer.
I need some time off – does my employer have to let me take off?
Maybe, and there are many possible variations, but here are some general rules. The employer’s own policies may answer this question, so look at any policies and employee handbooks to see what they say. Additionally, the Family and Medical Leave Act (FMLA) requires employers with a certain number of employees to grant time off for various reasons, such as the employee’s own health condition (like having surgery), to care for a family member with a health condition, for the birth or adoption of a child, or if a close member of the family is suddenly called into active military duty.
Like requesting accommodations for a disability, asking for time off work under the FMLA requires communication and probably some paperwork. The employer has to notify you in writing whether you are eligible for leave and how much time you can take. But the employer is also entitled to request written verification of what you are claiming, so they may ask you to provide documents or to sign a medical authorization so they can get the information directly from your doctor.
If you do everything right, an employer covered by the FMLA cannot (a) interfere with your right to take the time off, and (b) must restore you to the same position, or a substantially equivalent position, when the leave ends. If this does not happen you may have a basis for a lawsuit.
My employer wants me to do something illegal – what do I do?
You should probably refuse. Several years ago the Texas Supreme Court decided a case called Sabine Pilot and ruled that an employer cannot fire an employee who refuses to do something that the employee believes, in good faith, to be illegal. However, the refusal must be the sole reason for the termination, and proving that is often difficult. If you were terminated for refusing to perform an illegal act, you should contact an employment lawyer to see if you have the basis for a lawsuit.
I reported my employer to the authorities for doing things I thought were illegal – can they fire me for that?
It depends on what they were doing and who you reported it to. There are several laws that protect whistleblowers from retaliation by employers, but the question is very fact-specific. What you said, and who you reported to are very important. Let’s discuss your situation to see if there is anything that can be done.