Employment Rights Lawyer
Employment law includes the entire relationship between employers and employees including the initial hiring process, job duties, wages, promotions, benefits, employment reviews, and termination of employment. Employers generally have had a lot of discretion in dealing with their employees who are generally considered to be employed “at will” and thus serve the employer at the employer's will. However, the state and federal statutes have imposed laws to ensure at least general fairness in the workplace.
All employees are entitled to basic rights in the workplace including the right to
- Privacy
- Fair compensation
- Freedom from discrimination
- Freedom from discrimination and harassment
- Fair wages
- A safe workplace free of dangerous conditions, toxic substances, and other potential safety hazards
- Freedom from retaliation for filing a claim or complaint against an employer also known as “whistleblower” rights
If you have been fired without good cause or in violation of state or federal law, you may have been wrongfully discharge, which can be challenged and possibly entitled to back wages and the employer may have to pay fines and punitive damages or the employee could be reinstated.
However, because Texas is an “at-will” employment state, if there has been no wrong-doing on the part of the employer in terminating an employee, many employees will not have a legal remedy for being terminated from employment.
The Kahn Law Firm focuses our employment law practice to the following areas:
- Overtime pay
- Sexual harassment
- Wrongful termination/Discrimination
- Sex/Gender Discrimination (including pregnancy discrimination)
- Race Discrimination
- Age Discrimination
- Family & Medical Leave Act (FMLA)
- Retaliation
Overtime Pay
All employees—including salaried employees—and many independent contractors—are entitled to overtime pay which is required to equal to at least 1.5 times their regular rate for hours worked in excess of 40 in a workweek, unless specifically “exempt.”
Some employers may intentionally violate overtime law but they do so at great risk. There are few exemptions and the penalties are severe, for violating an employee’s overtime rights, even for mistakes.
If you regularly work more than 40 hours per workweek and don’t receive overtime pay, you may be owed thousands of dollars in unpaid overtime plus penalties, interest, and attorneys’ fees.
So how do you find out if you are entitled to overtime pay? Below are some general guidelines o help you understand your overtime pay rights. Contact an employment attorney at The Kahn Law Firm to see if we can help you recover overtime pay that is owed to you.
OVERTIME PAY GUIDELINES
- All employees who earn less than $23,660 per year automatically are entitled to overtime pay.
- Non management employees who perform construction, maintenance, installation, repair, production, kitchen, clerical, and secretarial work generally always are entitled to overtime pay.
- With rare exceptions, all hourly employees are entitled to overtime pay.
- Except for employees who regularly travel, most commissioned employees are entitled to overtime pay.
- Most salaried employees are entitled to overtime pay:
- Employees who earn a salary of less than $455 per workweek always are entitled to overtime.
- Salaried employees who earn $455 per workweek or more still are entitled to overtime pay unless his/her job duties fall within one of the narrowly-defined overtime exemptions, such as the executive, administrative, professional, outside sales or computer-related employee exemptions.
- Job titles never determine whether you are entitled to overtime pay, but certain jobs almost always qualify for overtime pay: paralegals, file clerks, administrative assistants, inside sales, call center, customer service representatives, IT/help desk, IT “tier-one” support, accounts payable/account receivable representative, and more.
Sexual Harassment
Have you been sexually harassed at work? Most employees suffer in silence and experience strained relations with supervisors, co-workers, friends and loved ones.
What is sexual harassment? According to the U.S. Equal Employment Opportunity Commission (EEOC), sexual harassment is defined to include:
- Unwelcome verbal conduct such as derogatory jokes, epithets, sexual advances or invitations, and other comments;
- Unwelcome visual conduct such as derogatory and/or sexually-oriented posters, photographs, e-mails, cartoons, and drawings;
- Unwelcome physical conduct such as sexual assault, unwanted touching, groping, or massages, simulated sex acts, blocking normal body movement and interfering with work because of sex, race or any other protected basis; and
- Threats and demands to submit to sexual requests as a condition of continued employment, or to avoid some other loss, and offers of employment benefits in return for sexual favors.
Generally, federal and Texas law only protect employees against severe or pervasive harassment in the workplace. This means that, while a workplace sexual assault most likely will constitute sexual harassment, a single offensive comment, isolated touching, or rejected advance--without more--is rarely enough to qualify as unlawful harassment.
Moreover, unlawful harassment must be because of an employee's sex, race, or other protected class status. The law does not protect employees from mean-spirited supervisors who create hostile work environments unless the harassment is based on an employee's sex, race, or other protected characteristic.
Reporting Workplace Harassment
There is little protection for employees who do not report sexual harassment; therefore, the most important thing you can do to stop the sexual harassment is to report it. The employer can then begin to investigate and, if possible, remedy the situation. Failure to do so may impact the employee’s ability to recover damages for sexual harassment.
Retaliation Is Prohibited
An employer is prohibited by law from retaliating against an employee who reports behavior such as sexual harassment. Even if an employee is unable to recovery for harassment, the employee may still be entitled to recover for retaliation (see below).
Things to do in a Sexual Harassment case:
- Tell the harasser that their conduct is unwelcome, illegal, and must immediately stop. Each time. Every time.
- Report the incident to your manager, Human Resource department, and the harasser's supervisor.
- Submit your complaint in writing. If your complaint was verbal, follow it up with an e-mail.
- Make sure that your complaint shows that the harassment is as a result of your sex or other protected class membership.
- Begin keeping a journal.
- Don't resign!
- If the harassment doesn't stop or you're dissatisfied with your employer's response, contact the EEOC and Texas Workforce Commission. Time permitting, seek legal advice from a lawyer at the Kahn Law Firm before you file an administrative complaint with the EEOC or Texas labor board.
Wrongful Termination/Discrimination
State and Federal discrimination law protects employees from several main types of discrimination:
- Age discrimination (40 or older)
- Sex discrimination
- Pregnancy discrimination
- Race and color discrimination
- National origin discrimination
- Religious discrimination
- Disability discrimination
- Discrimination against membership in the Armed Services; and
- Sexual orientation discrimination
In order to have a viable discrimination claim, the employer generally must take some tangible adverse employment action against an employee including a termination, layoff, demotion, reduction in compensation or benefits, reassignment to lesser duties or failure to promote. Additionally, the employer's adverse employment action must be because of an employee's protected class status (e.g. sex, age, race, national origin, etc.).
What to Do If You Believe You Are Wrongfully Terminated
- Make a complaint to your manager and Human Resources that you believe that you're the subject of unlawful discrimination.
- Submit your complaint in writing. If your complaint was verbal, follow it up with an e-mail.
- Make sure that your complaint shows that the discrimination is as a result of your protected class membership.
- Don't quit!
- If the discrimination continues, contact the EEOC or Texas Workforce Commission. Time permitting, seek legal advice from a lawyer at the Kahn Law Firm before you file an administrative complaint with the EEOC or Texas Workforce Commission.
Retaliation
What is Unlawful Retaliation?
Under federal and Texas law, an employer may not discharge or otherwise retaliate against an employee for, among other reasons:
- Filing an EEOC or TWC charge of discrimination
- Participating in an EEOC or TWC investigation
- Reporting unlawful discrimination, harassment, or retaliation to an employer
- Participating in an employer's workplace discrimination or sexual harassment investigation
- Filing an unpaid overtime complaint with the U.S. Department of Labor
- Filing an unpaid overtime complaint with an employer
- Filing for or receiving Workers Compensation benefits
- Taking or intending to take maternity leave or other FMLA leave
- Refusing to perform an illegal act
- Reporting accounting abuses or illegal activity in a publicly-traded company
- Filing for personal bankruptcy
- Taking jury duty
- Complying with a valid subpoena; and
- Reporting resident care abuses of certain assisted living, nursing, and medical care institutions
To support a retaliation claim, the employer's adverse employment action must be because the employee participated in protected activity (e.g. filed a workers comp claim, took maternity leave under FMLA, etc.). However, employees do not have protection from unlawful retaliation based on for criticizing a supervisor, personality conflicts, or questioning business decisions.
The most important issue in proving unlawful retaliation is timing and proof that the employer's had knowledge of the employee's protected activity (e.g. filed a worker’s comp claim, took maternity leave under FMLA, etc.) at the time the termination decision was made. Courts generally infer a strong causal connection supporting unlawful retaliation if an employee is discharged only a short period of time after engaging in the protected activity where an employer has knowledge. If the employer is able to show that the company made the decision to terminate the employee prior to the knowledge that the employee engaged in the protected activity, then this is not the case.
Why Retaliation Lawsuits Scare Employers
In 2006, the U.S. Supreme Court clarified that, to prove unlawful retaliation, an employee does not need to experience a discharge, demotion, suspension without pay, reduction in pay, or loss of benefits. Instead, to establish retaliation, employees only need to demonstrate that--as a result of their protected activity--the individual suffered a materially adverse act that might dissuade a future employee from likewise engaging in protected activity. This means that employees who are not terminated for engaging in protected activity but nonetheless suffer some lesser materially adverse response may now present a valid retaliation claim. This may include a job reassignment, denial of training, denial of leave, assignment to a less desirable shift or duties, a suspension with pay, the filing of a retaliatory counterclaim or lawsuit against the employee, and more.
What to Do If You Believe You Are Wrongfully Terminated for Retaliation
- Contact an employment attorney at The Kahn Law Firm immediately.
