I’ve consulted with employees who complained to their employers about discrimination, sexual harassment, disparate pay treatment, incompetent and abusive managers and hostile work environments.

Sometimes complaining was the right thing to do; sometimes the complaint shouldn’t have been made. But the one complaint that you should almost never make is the complaint that you are being asked to work outside your job description. Here are three reasons:

1. No Legal Protection. As a general rule, unless you are a union employee or have an employment contract that specifically states otherwise, you are likely an employee-at-will and your employer can ask you to perform whatever job duties your employer wants you to perform. If you complain, your employer could likely legally discharge you.
2. The Wrong Message.  Your complaint would send the wrong message to your employer. It’s tantamount to a refusal to work. It says to your employer, “I refuse to do anything other than this limited set of tasks we talked about when I was hired.”  It may suggest you are lazy. It also suggests your versatility as an employee is limited, which leads to reason #3.
3. You Are Killing Your Career. If you are not terminated for insubordination, you will almost certainly foreclose any chance of being promoted in the future. Why would your employer think you could take a different or more difficult tasks when you’ve already refused once?

There are obviously exceptions. For example, you should not accept job responsibilities that would put you in violation of the law or jeopardize the safety of others. Apart from that and a few other exceptions, your best response is to welcome the new opportunity and embrace the trust your supervisor has put in you by giving you more responsibility. GSF

In Texas, recording is legal so long as one party to the conversation knows it’s being recorded. That means as long as you are a party to the conversation you can record it without telling others.

But before you test drive the latest iPhone recorder app at work, there are 4 things you should remember:

1. You Could Be Fired. If you are caught you could be terminated, and there will likely be little an attorney can do for you. Texas is an employment-at-will state. There are exceptions of course, but the bottom line is you need to balance the potential reward against a very real risk.

2. You Are Being Recorded. You would be surprised how many times people bring me workplace recordings that hurt their case because of what they say on the recording. And here’s the kicker, you can’t just decide it didn’t help and delete it, which leads to tip #3.

3. Don’t Delete Any Part Of The Recording. If you delete any part of the recording or attempt to edit it, the recording might never be admitted into evidence in the case, and worse, you will subject yourself to a spoliation of evidence charge, meaning the jury may be instructed they can presume what you deleted hurt your case and that is why you deleted it. That’s not something you want the judge instructing the jury.

4.  Record What People Will Likely Deny Later. If it’s a sexual harassment case, record the harasser making inappropriate sexual remarks or others admitting they were sexually harassed by the same harasser. If it’s a discrimination case, record the discriminatory remarks made by your supervisor.  Record termination meetings. But remember what you record that doesn’t help you will often be used against you.

A good recording can make a case, but most recordings I hear from potential clients don’t help.  If you are going to record, follow the tips above and you may be one of the few with a recording that proves a case. GSF

If you are, however, it may be helpful to know what factors make for a good retaliation claim, meaning one you are more likely to win. Here are some things to look for:

1. Temporal Proximity Between Protected Conduct and Termination. Courts look for whether there is close temporal proximity between protected conduct (e.g., complaints of illegal discrimination) and the termination because it’s assumed (sometimes wrongly) that retaliation is an emotional decision. If you complained about discrimination and you were terminated within a few months, you have the makings of a good retaliation claim. If you were terminated 3 years after your complaint, you are going to need something more.

2. Before And After Evidence. An excellent performance record before protected conduct with write-ups following closely after protected conduct usually makes for good retaliation evidence. But beware that a good defense attorney will probably argue the write-ups were a result of a unmotivated disgruntled employee who didn’t get the result he sought when he made his complaint of discrimination.

3. Long Term Employment Before Protected Conduct. Employee works for a company for 25 years. He then files a charge of discrimination. He is fired within three months. Even if the termination is pursuant to a reduction-in-force, his inclusion will look very suspicious. Good evidence.

4. Pretext Evidence. As a practical matter you must have this to have a good retaliation case. Pretext evidence is evidence the reason offered for termination is not credible. For example, the penalty doesn’t fit the crime, the basis for the termination is unsupported by the evidence or other similarly situated employees whose performance was not as good were not terminated.

5. Manifested Hostility Following Protected Conduct. That the boss about whom you complained repeatedly demonstrates anger and hostility toward you or subjects you to higher scrutiny after the complaint is important evidence in a retaliation case. Such evidence is highly subjective and thus is often discounted by judges and sometimes juries, but the absence of such evidence can suggest the absence of a retaliatory motive. So, it’s important to have.

6. “Not Eligible For Rehire.” I always consider this one icing on the cake, particularly if the termination resulted from a reduction-in-force. Look, if it’s really a reduction-in-force, an employee should be eligible for rehire, but I’ve had cases where the employee’s internal termination form was marked “Not Eligible for Rehire.” It’s always interesting to hear the company’s explanation for why a good performer is no longer eligible for rehire after making a complaint of discrimination.

7. Violations Of Company Policy. When a company violates its own policy, particularly a progressive discipline policy, in terminating an employee who has engaged in a protected conduct, it’s almost always good evidence. Pulling the trigger before aiming signals an emotional decision, which is consistent with a retaliatory one.

8. Lack of Progressive Discipline. Even if a company doesn’t have a progressive discipline policy, judges and juries expect employers to provide progressive discipline to their employees. It’s an issue of fairness. The lack of it creates the same inference that arises from an employer violating its own policies.

9. Disparate Treatment Evidence. Evidence the plaintiff was treated less favorably than the other employees who had not complained about discrimination is what one would expect to see in a retaliation case. So, it’s good to have it.

10. Retaliatory Remarks. Retaliatory remarks from the decision-makers is very helpful, but I’ve found retaliatory remarks to be more uncommon than in other types of cases. If you have evidence of such remarks, count yourself lucky.

The foregoing list is not exhaustive and all are not necessary to make a strong retaliation case, but the more the better. GSF

Title VII of the Civil Rights Act makes it illegal to discriminate against an individual because of race, color, national origin, religion and sex.

However, the best claims from an individual’s perspective are found in the section of Title VII that prohibits retaliation against individuals who oppose a discriminatory practice, make a complaint of discrimination or participate in an proceeding under Title VII, such as an Equal Employment Opportunity Commission (“EEOC”) proceeding or lawsuit.

Here’s why employers should fear such cases.

1. They Are Easier to Prove. Retaliation cases are easier to prove than other types of discrimination claims. There are many who–wrongly–believe racial and gender discrimination are largely problems of the past. Few people believe that about retaliation. The urge to retaliate is a natural response of fallen man. Whereas in a race discrimination case I have to prove the decision-maker is a racist; in a retaliation case I only need prove he is human.

2. They Are More Likely To Be Filed. There is an old saying that even a dog knows the difference between being kicked and being tripped over. Likewise, while employees may speculate about whether their race or gender motivated their termination, they rarely have such doubts about retaliation. It’s easier to see, sense and feel, which makes it more likely a claim will be filed. EEOC statistics bear this out. In 2010, retaliation claims made up 36.3% of all charges filed with the EEOC, more than any other type of complaint.

3.  They Are More Likely To Yield Punitive Damage Awards. Punitive damages are recoverable on a showing the company acted with “malice or reckless indifference” to the federally protected rights of the plaintiff. If a jury finds there was retaliation, they will usually not have trouble finding malice or reckless indifference. That is not always true of other types of discrimination claims.

So, if you are an employer be careful about how you respond to employees who complain of discrimination, and if you are an employee beware if you complain. GSF

Unfortunately, these misconceptions often lead employees down a path that compromises their career or leads to their termination. Here are 3 general rules you should know before complaining to human resources departments or representatives.

1. Human Resources has little or no authority to fix the problem. As a general rule, HR representatives, even at the highest levels, don’t have authority to fire abusive managers or even discipline them. This authority rests with the managers and officers in a company. HR sometimes suggests actions and discipline, but those decisions are ultimately made by managers and officers.

2. Companies exist to make money, not provide healthy places to work. This shouldn’t surprise us, and we could certainly debate whether this is the way things should be in an ideal world. What you need to know is that it is generally true. As a result, if you make a complaint to HR and it is your word against a manager’s word, the company will usually side with the manager, particularly if the manager is a producer (i.e. makes money for the company).

3. Human Resources probably cannot protect you from retaliation. Employees rightly are concerned if they complain about a boss or someone else in management that they will be subject to retaliation. This is a legitimate concern. Why? See Rules #1 and 2.

Human Resources tends to attract good people who want to help others and provide healthy work environments. I’ve generally liked the HR people I’ve come across in litigation. But they can only act within the bounds of their authority, and of course they don’t want to lose their jobs.

I’m not saying an employee should never complain. In fact, I’ve posted here before on 3 Things To Remember When Reporting Sexual Harassment. The law sometimes requires an employee to complain before bringing a claim.

And when the complaint is against a coworker rather than a manager, a victim is likely to obtain a better result from complaining to HR. Because of the complexities of the employment laws and their reporting requirements, it’s a good idea to consult with an attorney before making a decision to complain to human resources about a manager. GSF

The general rule in Texas.

The right question. The way employment attorneys phrase the question is, “What is necessary to modify the employment-at-will relationship?”  If you have a written contract stating you will be employed for a term (1 year, 2 years, etc.) and that you cannot be terminated except for good cause, you are not an employee-at-will and you are protected from arbitrary or unjust termination.  That’s easy. The more difficult question is what to do in the situation where the employer gives verbal assurances of continued employment.

Texas courts are clear on what it takes to modify employment-at-will. In Texas, the courts have been pretty strict in prohibiting verbal modifications to the employment-at-will relationship.  What they have been clear on is that if the employer agrees to specific conditions under which the employee will not be terminated, an enforceable contract exists.

How we prevailed using this little-known exception to employment-at-will. We were able to use this little-known exception to employment-at-will in a case where our client alleged he had been promised he would not be terminated for ensuring the bus company he worked for complied with federal safety regulations.  We were able to prove to a jury he was terminated for doing just that.

A rare but proper jury verdict. As a result, we obtained a substantial jury verdict which was upheld on appeal.  It is discussed in more detail at another place on this website. It is one of the few published opinions in Texas where a verbal employment contract limiting termination has been recognized.  The rarity of such cases is not because this fact situation is rare, but because attorneys are not familiar enough with this area of employment law.

Applying this principle in the workplace. This same principal can be applied with regard to employee policy manuals that promise employees if they report wrongdoing they will not be terminated.  In Texas, such a promise creates an enforceable contract that alters the employment-at-will doctrine.  GSF

Federal employment law is a patchwork.

Bizarre inconsistencies. As it is we are left wondering why credit union employees have 2 years to file a claim of retaliation, while those who make OSHA complaints are only given 30 days.  Are we to conclude embezzlement is a more immediate and serious problem than a plant explosion?

Good news for credit union employees. If you are a credit union employee you needn’t pine over these jurisprudential curiosities, just be thankful.  Federal law protects credit union employees who become whistleblowers from retaliation in employment.  The main provisions of the law are as follows.

Who is covered. Employees of insured credit unions and the National Credit Union Administration are covered by the law.

What is covered. Neither the National Credit Union Administration (“Administration”) or an insured credit union may discharge or discriminate against an employee because the employee made a report of a possible violation of law or regulation to the National Credit Union Administration Board (“Board”) or the Attorney General.  The Board also offers rewards to those who come forward with information that leads to the recovery of civil penalties.

Enforcement procedure. A whistleblower who has suffered discrimination under this law may bring a lawsuit in federal district court within 2 years from the date of the adverse employment action.

Remedies. A victim of retaliation under this law may recover compensatory damages (lost wages and emotional damages), be reinstated and/or obtain injunctive relief (an order from the court directing the employer to do or stop certain conduct).

So, if you are a credit union or Administration employee, count yourself lucky because the law protects you.  GSF

Good intentions not enough. The reason?  The FLSA is far from intuitive and seemingly makes distinctions about who is entitled to overtime based on which industry had the best lobbyists in Washington when the FLSA was passed.  Or maybe there is a good reason employees engaged in the processing of maple sap into sugar (but not refined sugar) or syrup are not entitled to overtime, but nothing comes immediately to mind.

The distinction between inside and outside salespeople. One of the wage and hour problem areas that trips up employers concerns salespeople.  The FLSA makes a distinction between inside salespeople and what it refers to as the “outside salesman.”   It’s an important distinction because inside salespeople are entitled to overtime and outside salespeople are not.  Insides salespeople must be paid at least the minimum wage; outside salespeople do not.

Telling the difference. Here’s how you can know the difference.  An outside salesperson is someone whose primary duty is making sales and who is regularly engaged away from the employer’s place of business, i.e., out in the field, making sales.  Resolution of these cases often comes down to determining whether outside sales is the employee’s primary duty.

Determining primary job duty. For example, a salesperson may spend some of her time cold calling and fielding calls from potential customers while at the employer’s place of business and part of her time out in the field.  Which is her primary job duty?  Generally, courts will look at where the salesperson spends more than 50% of her time.  If it’s out in the field, she will usually be considered an outside salesperson and will not be entitled to overtime.

Other factors to be considered. Other factors a court will look at will be the relative freedom from direct supervision the salesperson has (less supervision weighs in favor of a finding the employee is an outside salesperson), the relative importance of the outside sales duties as compared with the inside job duties (the more relative importance of the outside duties, the more likely the employee is a an outside salesperson) and the relationship between the salesperson’s compensation and that paid to the employees performing the same non-outside sales duties as the salesperson (if the salesperson’s pay is substantially higher it is more likely she will be found to be an outside salesperson).

So, if you are in sales, you may be entitled to overtime.  If you are an employer, it is good idea to check your salespeople’s primary job duties and ensure they are being properly compensated.  GSF

People are usually shocked to learn how little protection there is for whistleblowers in the workplace.  There is protection, however, for whistleblowers working for hospitals, mental health facilities and any other treatment facilities in Texas. 

Who is protected.  Employees and persons who are not employees (such as physicians with privileges, though it is not limited to them) are covered.  This would include physicians, nurses, technicians, cooks, janitors, volunteers and anyone else who performs work in a hospital or treatment center.

What is protected.  Employees and non-employees are protected from termination, discipline or discrimination resulting from their report of a violation of law, which includes a violation of the Texas Health & Safety Code or a rule adopted by the Texas Board of Mental Health and Retardation, the Texas Board of Health or Texas Commission on Alcohol and Drug Abuse.  The report must be made to one’s supervisor, an administrator of the facility, a state regulatory agency or a law enforcement agency.  One need not prove that the conduct about which they complained was illegal, so long as one believes in good faith that the conduct is illegal.

Proving retaliation.  If the termination or discrimination by the hospital or treatment center occurs within 60 days of the whistleblower report, the law presumes such action was retaliatory and unlawful, unless that presumption is rebutted by the hospital or treatment center.  Even if the termination or discrimination happens more than 60 days after the whistleblower report, the individual can still prove a case.  Proof usually centers on showing the reason alleged by the hospital for the termination or adverse action is not credible.

Remedies.  A plaintiff who prevails in a whistleblower lawsuit against a hospital or treatment center can recover his actual damages, which could include lost wages and benefits in the past and future and damages for mental anguish, emotional distress, humiliation, inconvenience and other monetary and non-monetary damages in the past and which, in reasonably probability, can be expected to incur in the future.  A  plaintiff can also recover punitive damages, reasonable attorney’s fees, interest and can request reinstatement.

This law protects not only individual whistleblowers but the public as well because it encourages persons to report unlawful conduct rules violations that could adversely affect the treatment a patient receives at a hospital, mental health facility or treatment center.  I’ve enjoyed representing the physicians and employees who have asserted claims under this law because I feel we are serving a greater good that goes beyond just the best interests of our client.  GSF

Commission agreements can be verbal. Contracts for the payment of commissions do not have to be in writing to be enforceable.  The issue is almost always, “What was the agreement of the parties?”  If you were told by your employer you would receive a commission of 10% of gross sales, that is your agreement.  Legally, it doesn’t matter that it’s not in writing, although it may matter when it comes to proving the terms of the agreement.

When a commission is owed. An recurring issue in commission cases is the issue of when the commission is owed.  Is the commission owed when the sale is made, when the customer is invoiced or when the customer pays, or at some other time?  This issue is resolved by ascertaining the agreement of parties.  If the terms of the commission agreement are in writing, and clearly state when the the commission is owed, and the course of conduct between the parties is consistent with the writing, there should be little dispute.  You would be surprised, however, how often employers fail to put their commission plans in writing.

When an agreement can be changed. Unless you have a written agreement to the contrary, if you are an employee-at-will, your employer, after notice to you, can change the terms of your commission agreement at any time and by remaining employed you impliedly agree to those new terms.  There are two exceptions however.  First, an employer cannot change the terms of your agreement retroactively, only prospectively.  If you have already closed a sale, you are entitled to the commission upon which you previously agreed.  Second, if your employer terminates you immediately before a sale to keep from paying you a commission, you are likely to be able to recover part or all of the commission you would have been due but for the termination.

I hope this helps clarify this issue for you.  Small employers can take a big step toward avoiding litigation on these issues by simply putting in writing the terms of the commission plan, ensuring their employees receive the plan and, of course, complying with their obligations to their employees under the plan.  GSF