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Employment Law

You're Hired!... Employment Contracts

What is typically in an employment contract?

  • The amount that you will be paid
  • Details of your work assignment
  • How long you will be employed
  • Any special circumstances or benefits that you might have bargained for in the hiring process

Can a company require that I sign a non-competition and/or trade secrets agreement?

Yes. If the company gives you their confidential data at that time or shortly afterwards, then a company can insist that you keep secret any of their:

  • trade secrets,
  • techniques or processes,
  • customer lists,
  • marketing strategies.

However, note that the confidentiality agreement will not be enforceable until the time that you receive the business' trade secrets. . In addition, the agreement must include reasonable limitations with respect to the duration of time that it is enforceable and the geographic area to which it applies.

What if I violate a non-competition and/or trade secrets agreement?

If you make any improper revelations, you could be liable for any economic damages the business incurs.

Are there any specific provisions in a non-competition and/or trade secrets agreement of which I should be wary?

Yes; beware of agreements that require any of the following, which are probably unenforceable:

  • forbid you from ever entering into your own business or
  • ever joining another competitor
  • not being able to use talents and skills that you possess prior to joining that company
  • place restrictions on competing with your former employer that are over 2 years in duration
  • unnecessarily restrict the geographic scope (the area in which the company has been active is normally protected)

If I am just a part-time summer intern/employee, should I be concerned about non-competition and/or trade secrets agreements?

Yes! You must carefully weigh the advantages of joining an enterprise that has heavy restrictions on your future employment, especially if the job you are agreeing to do is temporary (summer) or part-time in nature. You may unnecessarily limit yourself from future opportunities for short-lived compensation.

What if I invent something during my employment...is it the company's or mine?

If you create an invention while using company facilities, equipment or even time, the item belongs to the business. However, if your creation occurs outside the physical presence of the company without the use of their facilities or specific knowledge that you acquired while at work, then it will likely be deemed to be your intellectual property. These concerns are usually addressed in the employment contract, so it is best to read your contract to determine your rights. Do not sign an agreement that unfairly or unduly restricts your right to use your ingenious abilities outside the workplace.

What if I receive an offer of employment in writing and then it is withdrawn months later after I have rejected other offers? Can I successfully sue the company for depriving me of other opportunities?

As Texas is an employment-at-will state and as you could hypothetically be fired at any time, even upon your arrival for work, the company is probably not liable for any damages or lost opportunities you suffer. But, if you can prove that the rejection is based upon an illegal reason, then you may be able to successfully collect damages. If the employment offer states or implies a term to the employment period (i.e. annual or monthly salary), you may at least be able to receive a salary for that time period.

What if the company does not pay me for my work?

Unless you are on a commission, you can file a complaint with the Texas Workforce Commission under the Texas Payday Act. If your grievance is found to be meritorious, then the employer can be ordered to give you all back pay and may be fined by the state. This action must be started within six months of the payday obligation that was not met by the employer.

You're Fired!... Or Are You?... Employment at Will

I have heard that Texas is an "employment at will" state. What does that mean?

It means that an employee can be fired for good cause, bad cause or no cause at all. Of course, there are exceptions stated in both federal and state law. The most common of these are covered in:

  • Title VII (aka The Civil Rights Act of 1964)
  • The Americans with Disabilities Act
  • The Age Discrimination Employment Act

These laws state that you cannot be fired because of your race, color, religion, national origin, gender, disability or age if you are 40 or older.

When can a company not terminate an employee?

You cannot be lawfully terminated:

  • if a written employment contract stipulates a time period that you will be employed
  • if an employee files a worker's compensation claim
  • if an employee takes reasonable time off to go vote
  • if an employee serves on a jury
  • if an employee has child support withheld from his/her pay check
  • if an employee is not hired or is fired or demoted based upon genetic information;
  • If an employee is the victim of retaliation of a protected right that is listed here;
  • if an employee refuses to participate in an employer ordered criminal act.

If I discover that my company is doing something illegal, can I report them to the proper authorities and not be fired?

No. There is no recognized "whistle blower" protection in the private sector in Texas; however there is in the public sector, but damages are limited. Conversely, in private employment an employee cannot be fired for refusing to perform an illegal act, even if ordered to do so by their employer, whereas there is no such exception in the public sector.

What if the company violates its own handbook's guidelines in disciplining or terminating an employee?

An employer is not liable for wrongful discharge. Texas courts have ruled that the handbook is not an employment contract, unless there is specific language to the contrary in the handbook.

Harassment

Under Title VII, are harassment claims limited to sexual harassment issues?

NO. Hostile environment claims apply to all of the protected classes-not just those that are gender based. Therefore, if you are harassed because of your race, color, religion, nationality, age, genetics or disability, there is a potential cause of action on the same basis as that which is set forth below for sexual harassment.

When can an employer be held liable for harassment?

The most well publicized form of harassment in the workplace is sexual harassment, which is a type of sexual discrimination. There are three types of sexual harassment now recognized as creating liability for a business.

  • "Quid pro quo", or being forced to have sex with a superior in order to keep your job or to get a promotion, etc. This is illegal if the actions against the employee resulted in an adverse and "tangible employment action" (meaning a significant consequence). The courts have stated that if the allegations are proven, there is virtually automatic liability for the company.
  • Hostile environment from a supervisor or higher ranking person. The business is required to have a plan to deal with hostile environment issues. This information must be widely disseminated to the work force. Any allegations of harassment need to be investigated and dealt with promptly. Likewise, the employee who has been harassed must take advantage of the company's resources to resolve the problem and do what is reasonable to avoid the alleged harasser and his/her behavior. If the business does not do its part, liability can be placed on the business; likewise, if the employee does not follow procedures or fails to mitigate the problem, they may not have any legal basis for a claim.
  • Hostile environment from a co-worker or visitor to the company. If the company knew of, or should have known of the problem, and does little or nothing to resolve the issue, then there could be liability. Here, silence is not golden and the victim needs to make Human Resources or management aware of the problem. We recommend following the same procedures as are stated in the section above regarding hostile environment created by a supervisor.

Is same sex harassment covered by Title VII?

Yes. There may be liability even if the victim is the same gender as that of the harasser.

What is the legal definition of "harassment"?

The fact that different people are offended by different actions makes an absolute definition impossible. However, the guidelines offered by the courts and the EEOC state that the act(s) of the perpetrator must be:

  • severely offensive; or,
  • moderate acts that are frequently repeated and
  • not consensual.

In order to be actionable, the actions must also be repugnant to a reasonable person. Therefore, occasional sexual jokes, some casual touching, or asking someone in the workplace for a date on several instances are generally not considered Title VII violations. However, individual companies may have internal policies that prohibit or discourage these actions.

Americans with Disabilities Act

How is disability defined under the ADA?

The ADA defines this term broadly. It is:

  • a physical or mental impairment that substantially limits one or more of the major life activities of an individual;
  • a record of such impairment; or
  • being regarded as having such an impairment, even if there is no disability.

How did the ADA Amendments Act of 2008 change the law?

This new law has significantly broadened how the ADA is interpreted. One is now considered "disabled" if the limitation substantially limits a "major life activity." This is defined as covering every major bodily function (including "interacting with others"). Even events that are episodic or in remission are now covered by the law, and except for the need for glasses, any measures one does that mitigate the disability do NOT take it out from under the disability definition. Side effects from medications used to treat medical conditions may also qualify. However, temporary or short-term conditions (less than six months) are generally not considered disabilities, unless the condition is significantly debilitative. Further, current alcohol or drug addicts are not protected under the ADA.

If a person is disabled, does the employer have to hire that person or keep that person on his/her original job?

The employer is required to reasonably accommodate the person so that he/she can perform the job. This does not mean that merely because someone has a disability the employer is required to hire or keep such an individual in the position. It does mean that if the disability, with accommodations, would not prevent him/her from successfully performing their duties on a particular job, that person should be given the opportunity to compete for that position with any other person who is not disabled.

So what is a reasonable accommodation?

This can vary from case to case, but generally if the accommodation sought is not a great economic burden to the business, then it can be required. Many alterations cost less than $500 and would apply to nearly every entity. However, the disabled person cannot choose which accommodation he/she prefers as long as it effectively eliminates the barrier.

Can an employer ask me about my disability in a job interview?

No. The only time the matter can be discussed is if the disabled applicant voluntarily brings it up on their own or after a job offer is tendered. In that latter situation, the offer may be made conditional upon the candidate being able to demonstrate that they can perform the task successfully or passing a medical exam that verifies their ability to succeed in that position.

Reporting Discrimination

If I believe I have been illegally discriminated against, what actions should I take?

  • Try to communicate with the person involved to let them know your concerns.
  • If this is ineffective or you do not wish to talk to that person directly, report the problem to your or the harasser's supervisor.
  • If this is not possible or impractical, then report the problem to the Human Resource office at your work place.
  • If no satisfactory resolution is concluded, then you may file a report with the Equal Employment Opportunity Commission in San Antonio or the Texas Commission on Human Rights in Austin. Be mindful that any filing must be made within 300 days of the complained-of incident or your action is barred by law.

Association Retaliation

Title VII prohibits retaliation against anyone who reports an illegal or discriminating act. It also forbids retaliation against a third party associate (defined as a spouse, fiancé, family member, or even a "close associate") of the complainant.

Privacy in the Workplace

What is okay for my boss to access on my computer?

While this issue has yet to be firmly decided, it is probably not okay for your employer to ask for your passwords or for access to your social media accounts. Your employer would also likely be prohibited from using any passwords you might have stored on your computer to access your accounts under the Stored Communications Act (SCA). However, if your social media profile is easily accessible to your employer, he or she may be able to use the information available there to take disciplinary action against you. As a general rule of thumb it is best not to post information on your social media that you wouldn't want your employer to see!