Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Retaliation

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Fifth Circuit Holds, in Issue of First Impression, that But-For Causation Applies to Claims Arising Under the Jury System Improvement Act

Posted in Case Summaries, Discrimination, Retaliation
Both federal and Texas law prohibit discrimination against employees for participating in various types of jury service. Imagine an employer defending itself from the accusation that it terminated an employee because of her jury service and then looking across the courtroom to see the individuals who will most likely decide the merits of its case –a … Continue Reading

Investigation Closure Letters “Close the Loop” on Workplace Investigations

Posted in Discrimination, Harassment, Human Resources, Retaliation
One thing often overlooked in conducting workplace investigations is reporting back to the complaining party at the end of the investigation. I have seen many cases where the employer conducted a thorough investigation and took prompt remediation action but never communicated to the employee that it had done so.  From the employee’s perspective, he or she … Continue Reading

Fifth Circuit Holds that Employee’s Internal Complaints of Securities Violations Do Not Qualify for Dodd-Frank Whistleblower Protection

Posted in Case Summaries, Retaliation
In a recent opinion of the Fifth Circuit Court of Appeals, the federal appellate court held that a former employee terminated after making internal complaints to his employer about possible securities violations, but who never made complaints to the S.E.C., was not a whistleblower under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 … Continue Reading

U.S. Supreme Court Adopts “But For” Causation Standard for Title VII Retaliation Cases

Posted in Case Summaries, Retaliation
In a case appealed from the Fifth Circuit Court of Appeals, the U.S. Supreme Court held that a plaintiff in a Title VII retaliation case may prevail only when he shows that he would not have suffered an adverse employment action “but for” his engaging in protected activity. In the first retaliation case in several years … Continue Reading

Fifth Circuit Holds that Volunteer Firefighter is not an “Employee” for Purposes of Title VII

Posted in Case Summaries, Disability, Discrimination, Harassment, Retaliation
In an issue of first impression in this Fifth Circuit, the Court held that a volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim. The case arose from a suit filed by a former firefighter for the Livingston Parish … Continue Reading

Fifth Circuit Holds That Attorney’s Fees Not Recoverable In Title VII Mixed-Motive Retaliation Case

Posted in Case Summaries, Retaliation
In a recent case from the Fifth Circuit, the Court held that attorney’s fees are not recoverable for a prevailing plaintiff in a Title VII mixed-motive retaliation case. In Carter v. Luminant Power Serv. Co., the plaintiff employee brought a Title VII discrimination and retaliation claim alleging that he was disciplined for his complaints of racial … Continue Reading

Employment Lawyers Must Document Their Efforts to Recover Attorney’s Fees under Texas Commission on Human Rights Act

Posted in Case Summaries, Discrimination, Harassment, Retaliation
Prevailing plaintiffs in employment discrimination, harassment and retaliation cases can recover attorney’s fees their attorney’s incur in prosecuting those claims.  In many instances the attorney’s fees sought can exceed the monetary relief the plaintiff obtains and can act as a serious impediment to prompt settlement.  Since most of these cases are done on a contingency … Continue Reading

Dodd-Frank Act Effect on Employer Arbitration Programs

Posted in Arbitration, Case Summaries, Retaliation
The Dodd-Frank Act created a "reward" (bounty) program for  whistle blowers that voluntarily provide original information of fraud or unlawful activity in violation of the Sarbanes-Oxley Act, the Foreign Corrupt Practices Act and other securities law violations.  The Dodd-Frank Act also provides whistle blowers protection from retaliation and renders pre-dispute arbitration agreements of whistle blower … Continue Reading

Fifth Circuit Sets Two Year Statute of Limitations for False Claims Act Retaliation Cases

Posted in Case Summaries, Retaliation
The federal False Claims Act (aka Qui Tam statute) provides a cause of action for an employee who is retaliated against for attempting to prevent its employer from making fraudulent claims for payment to the United States.  An open issue in the Fifth Circuit (the federal court of appeals covering appeals from Texas, Louisiana and Mississippi) … Continue Reading

Should You Ever Hang Up on the Texas Workforce Commission?

Posted in Discrimination, Harassment, Human Resources, Retaliation, Unemployment
In Texas, employees and employers are entitled to a telephone hearing before a hearing officer if either party disagrees with an initial determination issued by the Commission in unemployment benefit and Texas Pay Day Act claims.  There are some occasions, however, where an employer may consider foregoing these telephone conferences –even if it means losing the unemployment … Continue Reading

What is Employment Practices Liability Insurance and Does My Company Need It?

Posted in Discrimination, Harassment, Human Resources, Retaliation
Employment Practices Liability Insurance, or EPLI, is business insurance an employer can purchase that will provide protection from losses caused by certain employment disputes with current or former employees. EPLI is in addition to commercial general liability or umbrella policies that normally contain exclusions for most employment claims. EPLI normally covers the employer, its employees and executives for … Continue Reading

Fifth Circuit Holds Title VII Damage Caps Apply “Per Party” Not “Per Claim”

Posted in Case Summaries, Discrimination, Harassment, Retaliation
In an issue of first impression in the Fifth Circuit, the U.S. Court of Appeals holds that Title VII’s damages cap apply on a "per party" basis rather than on "per claim."  In Black v. Pan American, the Plaintiff, Carleen Black, prevailed on her Title VII and TCHRA claims of sex discrimination and retaliation.  The … Continue Reading

El Paso Court of Appeals Recognizes Private Right of Action for Retaliation for Assisted Living Facility Employees

Posted in Case Summaries, Retaliation
In an issue of first impression, the El Paso Court of Appeals has held that the Assisted Living Facility Licensing Act creates a private right of action for an employee who has filed a complaint, grievance of providing information in good faith relating to personal care services of the assisted living facility. In Emeritus Corp. v. … Continue Reading

Wal-Mart v. Dukes Not Evidence of High Court Pro-Business Slant

Posted in Case Summaries, Human Resources, Judicial Updates, Retaliation
I keep reading reports that Wal-Mart v. Dukes, where the Court reversed a class certification including 1.5 million women (who worked all over the U.S. under different supervisors at different stores) that was based on the company giving supervisors too much discretion, 125 anecdotal stories and an expert report employing dubious social framework analysis, demonstrates that the Court has a … Continue Reading

Fifth Circuit Holds Loss of Consortium Damages Unavailable To Spouse of Successful Title VII Plaintiff

Posted in Case Summaries, Discrimination, Harassment, Retaliation
The Fifth Circuit held today that a spouse of a successful Title VII plaintiff cannot maintain a legal claim for loss of consortium (i.e., loss of spousal services) under state and federal law.  In Barker, Tracey Barker was a civilian worker employed by Halliburton (aka KBR).  She claimed she was subjected to sexual harassment, retaliation and various … Continue Reading

State of Texas Immune from Worker’s Compensation Retaliation Claims

Posted in Case Summaries, Discrimination, Retaliation, Workers' Compensation
In today’s Supreme Court of Texas orders, the Court held that the State of Texas (including its political subdivisions such as counties) is immune from worker’s compensation retaliation suits.  You can read a full copy of the Court’s opinion in Travis Central Appraisal District v. Norman here… Continue Reading

Oral Complaints of Wage and Hour Violations Sufficient to Provide Protection from Retaliation

Posted in Case Summaries, Retaliation, Wage & Hour
The Fair Labor Standards Act is the federal law that requires most employers to pay a minimum wage and overtime.  The FLSA also includes an anti-retaliation provision that prohibits an employer from discharging any employee who has "filed a complaint" under the FLSA because of that complaint.  The issue at the high court in Kasten v. Saint-Gobain … Continue Reading

USERRA Provides No Cause of Action for Hostile Environment Discrimination

Posted in Case Summaries, Discrimination, Harassment, Retaliation
In an issue of first impression, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court hearing cases from Texas), held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides no cause of action for a hostile work environment that is created because of a service member’s military service.  The Plaintiffs, in Carder … Continue Reading

Supreme Court Blesses Cat’s Paw Theory of Discrimination

Posted in Case Summaries, Discrimination, Judicial Updates, Retaliation
The U.S. Supreme Court recently considered the circumstances when an employer may be liable for employment discrimination based on the unlawful, discriminatory animus of an employee who influenced, but did not make, an ultimate employment decision.   This theory is commonly referred to as the Cat’s Paw theory derived from fable about the monkey who convinces the cat … Continue Reading

Supreme Court Recognizes Third-Party Retaliation Claims under Title VII

Posted in Case Summaries, Discrimination, Judicial Updates, Retaliation
The U.S. Supreme Court announced that employees, who never engaged in protected activity, can bring third-party retaliation claims against their employers when they suffer an adverse employment action due to their connection with a person who has engaged in protected activity. The facts of Thompson v. North American Stainless are straightforward.  In February 2003 North American Stainless was advised … Continue Reading

New Filing Reminds Employers of Employee Protection for Jury Service

Posted in Discrimination, Retaliation
Barry Shlachter of the Fort Worth Star Telegram reports today on an employment dispute you rarely see these days.  Shlachter profiles a new lawsuit filed by Saginaw resident Corey Gillespie against Dee King Trucking of Amarillo.  According to the article, Gillespie (a relatively new employee (and importantly not an independent contractor) with the company) was summoned for jury duty in … Continue Reading

City of Houston Adds Sexual Orientation and Gender Identity as Prohibited Types of Discrimination

Posted in Discrimination, Harassment, Human Resources, Retaliation
By Executive Order dated March 25, 2010, Houston Mayor Annise Parker, added sexual orientation and gender identity as protected categories under the City’s anti-discrimination, harassment and retaliation policy.  The Order prohibits discrimination, harassment and retaliation based on gender identity and sexual orientation in all of the City’s employment, contracting and vending activities and in the provision and accessing of … Continue Reading

Last Rites for Neutral Absence Control and Maximum Duration of Leave Policies?

Posted in Retaliation, Workers' Compensation
For more than 15 years Texas employers have used the application of uniformly enforced neutral absence control policies setting a maximum duration an employee can be away from work as a defense to workers’ compensation retaliation claims.  The defense was first solidified by the Supreme Court of Texas in in its 1996 Continental Coffee Prod. v. Casarez case.  See 944 … Continue Reading