Only five percent of the lawyers in the state are named by Super Lawyers, and the selection is made as a result of a rigorous multi-phase selection process that includes, among other things, a statewide survey of lawyers and a peer review of candidates by practice area.

This honor follows Fiddler’s selection by H-Texas Magazine as one of Houston’s “Top Lawyers” and as one of the city’s “Top 100 Professionals.”  Scott Fiddler’s listing on the Super Lawyers website can be found here.

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

This is the fourth year in row Mr. Fiddler has been named to the H Texas Magazine list. The 2011 list appears in the Summer 2011 issue of the magazine. Click here to view.

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

The Facts. Miriam Regalado and her fiance, Eric Thompson, both worked for North American Stainless (“NAS”). Ms. Regalado filed a charge of sex discrimination against NAS, and in February 2003 the Equal Employment Opportunity Commission notified NAS. Three weeks later, NAS fired Mr. Thompson.

The Case. Thompson brought a Title VII retaliation suit against NAS claiming NAS fired him in retaliation for Regalado filing her discrimination complaint. NAS claimed Thompson could not bring a retaliation claim under Title VII because Regalado, not Thompson, had filed the underlying complaint of discrimination. NAS contended Title VII only protected from retaliation the person who filed a complaint of discrimination, not third parties.

The Ruling. The Supreme Court, in a brief and direct opinion written by Justice Scalia, held NAS’s alleged conduct was a violation of Title VII’s anti-retaliation provision because the conduct might well have dissuaded a reasonable person from making a complaint if that person knew her fiance would be fired in retaliation. That still left the important question of whether Thompson, who had not filed the underlying sex discrimination complaint, could bring a case for retaliation. The Supreme Court said he could because he was an employee working for the same employer and was in the “zone of interest” sought to be protected by Title VII’s anti-retaliation provision.

Why The Case is Important. The decision in this case means employers cannot retaliate or threaten retaliation against relatives, fiances and others in close relationship with the victim of discrimination to scare her or others into not filing complaints of discrimination. I’ve had clients and potential clients ask me this very question in the past and I’ve had to tell them their employer was free to retaliate against the employee’s relatives. Fortunately, I will now be able to give a different answer. GSF

Section 402 of the Act provides broad whistleblower protection for employees engaged in the manufacture, processing, packing, transporting, distribution, reception, holding or importation of food.

Protected Conduct. Whistleblowers may not be discharged or otherwise suffer adverse employment actions for engaging in certain protected activity such as when an employee:

1. provides information regarding conduct the employee reasonably believes to be a violation of, any provision of the Federal Food, Drug and Cosmetic Act (“FDCA”) or any order, rule, regulation, standard, or ban under the FDCA;
2. testifies, or is about to testify, in a proceeding concerning such violation;
3. assists or participates, or is about to assist or participate, in such a proceeding; or
4. objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believes to be in violation of any provision of the FDCA, or any order, rule, regulation, standard, or ban under the FDCA.

Good Faith Belief. An employee need not disclose an actual violation of food safety laws so long as he has a reasonable belief one is occurring and he suffers discrimination as a result.  In other words, even if an employee is mistaken in his belief the conduct is protected.

Standard of Proof. These protections are typical of many whistleblower protections, and are nearly identical to Title X of the Dodd-Frank Consumer Protection Act signed by President Obama last July and previously discussed here.  Like the Consumer Protection Act, an aggrieved whistleblower only need show the protected activity was a contributing factor in the employer’s decision to discriminate.  Thus, even if an employer has legitimate reasons for the adverse employment action, as long as the employer was influenced at least in part by a retaliatory motive, its conduct is illegal.  However, it is a defense if the employer is able to show by clear and convincing evidence they would have terminated (or demoted or taken other such similar actions) against an employer even had the employer not blown the whistle.

Remedies. The Act provides remedies to employees including reinstatement of the employee to his prior position (or prior conditions of employment such as hourly rate seniority status or other benefits), back pay, compensatory damages, costs and reasonable attorneys fees.

Deadlines. A whistleblower must file a complaint of retaliation under the Act with the Department of Labor (“DOL”) within 180 day of the retaliatory act. If the DOL has not issued a final decision within 210 day after the complaint is filed, the whistleblower may file a lawsuit and have the case heard by a jury.

The Act suffers from a major infirmity of much of the whistleblower and anti-discrimination legislation and that is the requirement the whistleblower file an administrative complaint with the government. Under many laws this is the only avenue available to the whistleblower. At least the Act provides a jury trial when the DOL does not reach a timely decision. 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

In 2008, the Texas Supreme Court decided a case called Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008).  In that case, the employee (Mr. Igal) filed a Payday Law claim with the Texas Workforce Commission (“TWC”), who decided the claim had not been timely filed. Claims filed under the Texas Payday Law must be filed with the TWC within 180 days from the date the wages become due.

Mr. Igal then filed a lawsuit against his former employer for breach of contract.  The deadline in Texas for filing a breach of contract claim  for wages is 4 years from the date the wages became due. The Supreme Court held that because Mr. Igal had chosen to file the wage claim with the Texas Workforce Commission, after the TWC ruled against him, he could no longer pursue a claim in court for breach of contract.

What this means is if you have a wage claim for a significant amount of money, you should seek legal advice before filing a Payday Law claim with the TWC. Some claims are better suited for a judge or jury than an administrative determination by the TWC. Conversely, some claims have a better chance to prevail at the TWC than in court.

It’s unfortunate a law intended to simplify the collection of wages has, because the Texas Supreme Court’s decision, complicated it. It increases the price of justice, and no one, except lawyers, benefit from that.

Bottom line: if you have a significant wage claim, and have time before the statute of limitations deadline, talk to a lawyer before you file it. GSF