Areyana Gilbert
Houston Employment Trial Lawyer Areyana Gilbert

You may have heard the saying to “document everything” in the workplace or to “keep receipts” when matters in the workplace are seemingly unlawful. There’s some truth to that—a lot actually. This blog explores the significance behind the two concepts which stresses the importance of proper documentation. Employees who experience discrimination, harassment, or retaliation often assume that reporting the behavior verbally is enough. Unfortunately, when workplace disputes escalate into formal complaints or legal claims, what matters most is not just what happened, but what can be proven. That’s where documentation becomes critical.

Employment discrimination and retaliation cases are evidence-driven. Courts, agencies, and employers rely heavily on written records, timelines, and corroboration. Without documentation, unlawful conduct can become a “he said, she said” situation—making it far more difficult for an employee to prove their case.

Keeping records transforms personal experiences into tangible evidence. Notes, emails, texts, performance reviews, and internal complaints can establish patterns of behavior, show intent, and demonstrate how an employer responded (or failed to respond) once issues were raised.

What Should Employees Document?

Employees should document any behavior that may be discriminatory, harassing, or retaliatory, including:

  • Inappropriate comments or conduct related to protected characteristics
  • Unequal treatment compared to similarly situated coworkers
  • Sudden negative performance reviews after raising concerns
  • Discipline, demotion, or termination following complaints
  • Employer responses to internal reports or HR complaints

Each entry should include dates, times, locations, individuals involved, witnesses, and a clear description of what occurred. Objective facts are more valuable than emotional language. Documentation should be created as close in time to the incident as possible. Contemporaneous notes are often viewed as more credible than records created months later. Waiting too long can result in faded memories, lost evidence, or missed legal deadlines.

In many jurisdictions, especially Texas, employees must meet strict time limits to file discrimination or retaliation claims. Detailed records help attorneys quickly assess claims and ensure deadlines are met. Such documentation is also helpful to credibly defend yourself in unemployment hearings with the Texas Workforce Commission as well. 

Even if a situation never leads to legal action, documentation can be essential during internal investigations. Employers are more likely to take complaints seriously when employees can provide clear, detailed records. Documentation also discourages employers from dismissing concerns as misunderstandings or isolated incidents. Employees should keep copies of documentation in a safe, personal location—not solely on work devices or company email systems. Access to employer systems can be revoked at any time, especially after termination.  Here are a few takeaways regarding proper documentation and its advantages. 

  • Documentation can make or break a discrimination or retaliation claim
  • Record incidents promptly, factually, and consistently
  • Include dates, details, witnesses, and employer responses
  • Written records strengthen both internal complaints and legal cases
  • Store documentation securely outside of work systems

When workplace misconduct occurs, silence and memory are rarely enough. Thoughtful documentation empowers employees to protect their rights and hold employers accountable.

Think you may have an employment discrimination case? It is highly advised that you consult with a Texas employment law attorney. Schedule a consult with an attorney in our firm here. 

Ty Photo
Austin Employment Lawyer Ty'Queese Keyes

The shift to remote and flexible work has reshaped the modern workplace. For many, working from home is a perk governed by company policy. However, for employees with disabilities, the ability to telework is often more than a benefit—it’s a potential legal right under the Americans with Disabilities Act (ADA) that can remove barriers. 

This right is not based on company-wide programs, but on a legal framework that requires employers to provide “reasonable accommodations.” The key to unlocking this right is the “interactive process,” a collaborative dialogue between an employee and employer. This blog will demystify five critical aspects of your right to telework under the ADA, based on guidance from the U.S. Equal Employment Opportunity Commission (EEOC).

1. Your Right to a Telework Accommodation Is Not Tied to Company Policy.

Under the ADA, allowing an employee with a disability to work from home is considered a modification of workplace policies. This means that after an employee initiates the interactive process with a request, an employer may be required to grant it as a reasonable accommodation—even if the company has no existing telework program and does not allow other employees to work from home. 

This is because changing the location where work is performed, such as allowing an employee to telework, may fall under the ADA’s reasonable accommodation requirement of modifying workplace policies, even if the employer does not allow other employees to telework.

This is a powerful distinction because it separates a disability accommodation from a standard employee perk. Your right is based on individual need, not on existing company-wide benefits.

What This Means for You: Don’t assume you are ineligible for a telework accommodation just because your company has a strict “office-only” culture. Your right to an accommodation is independent of standard company policy.

2. Internal Eligibility Rules Can Be Waived for an Accommodation.

If a company does have a formal telework program, its standard eligibility rules are not absolute when it comes to the ADA. As part of the interactive process, an employer might have to waive certain requirements, such as minimum tenure, as a form of reasonable accommodation.

For instance, the EEOC provides a specific example: an employer that normally requires employees to work for one year before becoming eligible for the company’s telework program may have to waive that rule for a new employee whose disability necessitates working from home. This point is crucial because it demonstrates that the ADA’s requirements can supersede internal company policies when an effective accommodation is needed.

What This Means for You: Company policies on telework eligibility are a starting point, not a hard barrier. If you need an accommodation, the interactive process can lead to modifying those rules to meet your needs.

3. Your Preference Matters, but the “Effective Accommodation” is Key.

While an employee can specifically request to work from home, the employer is not legally obligated to grant that request if another effective accommodation is available that would allow the employee to work on-site. The employer has the ultimate discretion to choose between effective accommodations.

However, the EEOC guidance states that the employee’s preference should be given “primary consideration.” This reinforces the importance of a good-faith interactive process where both parties can find a solution that works.

Ultimately, the goal is an effective accommodation, and the dialogue between you and your employer is the prescribed method for finding it.

What This Means for You: Clearly articulate why telework is your preferred and most effective solution during the interactive process. While the employer has the final say, a well-reasoned preference is given significant weight.

4. “Essential Functions” Are the Focus, Not Minor On-Site Tasks.

A common misconception is that a job must be entirely portable to be eligible for a telework accommodation. The key distinction under the ADA is between “essential” and “marginal” job functions. An employer is not required to remove essential duties—the fundamental tasks of the job—to allow for telework.

However, the EEOC clarifies that if only minor, non-essential (marginal) functions are preventing an employee from working at home, those tasks can be reassigned. For example, a food server cannot perform their essential duties from home, but an office worker whose essential duties involve writing reports and analyzing data might have a marginal duty of making occasional photocopies. Through the interactive process, that marginal task could be reassigned to allow for telework. This practical distinction makes telework a viable option for a much broader range of jobs than many people assume.

What This Means for You: Focus your accommodation request on how your essential duties can be performed remotely. Do not let minor on-site tasks derail the conversation; these are precisely the things the ADA allows to be reassigned.

5. Telework Accommodations Can Be Flexible, Not All-or-Nothing.

A reasonable accommodation for telework does not have to be a permanent, full-time arrangement. The structure should be tailored to what the employee’s disability necessitates, as determined through the interactive process.

This can take many forms: a hybrid schedule of one day a week at home, a temporary remote arrangement for a few months while recovering from treatment or even work from home on an “as needed” basis for a disability with unpredictable flare-ups. The frequency and duration should be based on the specific need, ensuring the employee can successfully perform their job.

What This Means for You: Your request doesn’t have to be for a permanent, full-time remote role. Propose a flexible arrangement through the interactive process that directly addresses the specific challenges your disability presents.

Beyond Policy, Towards Inclusivity

These “surprising truths” are not legal trivia; they are essential tools for self-advocacy and for building more equitable workplaces. Understanding that telework is a legal right, not just a company perk, reframes the entire conversation. For employees seeking support, knowledge of these rights is the first and most critical step in the interactive process.

 If you would like to consult with an attorney regarding your reasonable accommodations and the interactive process, Rob Wiley, P.C., is dedicated to informing you of your rights and your employer’s potential violations. Please contact us to discuss your available options.

Madeline Garza
Houston Employment Trial Lawyer Madeline Garza

Pregnancy discrimination remains one of the most persistent challenges in employment law. Despite decades of legal protections, thousands of employees still face adverse actions after announcing a pregnancy or requesting accommodations. Pregnancy discrimination occurs when an employer treats an employee or job applicant unfavorably because of pregnancy, childbirth, or related medical conditions. 

This includes: 

·      Hiring and firing decisions based on pregnancy status;

·      Denial of promotions or training opportunities due to anticipated maternity leave;

·      Refusal to provide reasonable accommodations for pregnancy-related limitations;

·      Harassment or hostile work environment targeting pregnant employees.

Under federal law, pregnancy discrimination is considered a form of sex discrimination. The Pregnancy Discrimination Act amended Title VII of the Civil Rights Act to explicitly prohibit discrimination based on pregnancy, childbirth, or related medical conditions. Employers must treat pregnant employees the same as other employees similar in their ability or inability to work. 

Key Federal Laws Protecting Pregnant Workers

Pregnancy Discrimination Act (PDA)

The PDA ensures that pregnancy-related conditions are treated like any other temporary disability. Employers cannot refuse to hire, terminate, or demote an employee because of pregnancy. They must also provide equal benefits and accommodations as they would for other temporarily disabled employees. 

Americans with Disabilities Act (ADA)

While pregnancy itself is not classified as a disability under the ADA, many pregnancy-related conditions, such as gestational diabetes, preeclampsia, or severe morning sickness, qualify as disabilities. Employers must provide reasonable accommodations for these conditions unless doing so would cause undue hardship. This means: employees may request accommodations like ergonomic seating, modified duties, or telework, employers must engage in an interactive process to identify suitable accommodations, and medical documentation should be kept confidential and stored separately from personnel files.

Pregnant Workers Fairness Act (PWFA)

Effective June 27, 2023, the PWFA requires employers with 15 or more employees to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions. Examples include: flexible scheduling for prenatal appointments, temporary reassignment to light-duty tasks, additional breaks for hydration or rest, and/or remote work options when medically necessary.

Importantly, employers cannot force employees to take leave if another reasonable accommodation would allow them to continue working.

Why This Matters

Pregnancy discrimination not only violates the law, it undermines workplace equity and economic security for families. If you are facing discrimination there are a couple steps to follow to ensure your rights are protected. First, document everything. It is important to keep records of conversations, emails, and policy changes, but also make sure you are following any company policy on confidential information. Second, make sure you request accommodations in writing. While it isn’t a strict requirement, it helps to clearly state your limitations and proposed accommodations. Further allowing you to circle back and keep track of your employer’s responses or lack thereof. Third, if your employer is interfering with your rights for accommodations or discriminating against you based on your pregnancy status, schedule a consultation with an attorney. Our office has decades of experience representing employees experiencing discrimination and fight for resolution.

Ty Photo
Austin Employment Lawyer Ty'Queese Keyes

Wage theft occurs when employees are not fully paid as required by law or contract. It includes unpaid overtime, withheld tips, misclassification to avoid benefits, and illegal paycheck deductions. These practices breach workers’ rights, violate the Fair Labor Standards Act, and can cause financial problems for those affected.

Wage theft is expressly prohibited under the Fair Labor Standards Act (FLSA), which is overseen by the U.S. Department of Labor and establishes wage and hour regulations for the majority of employees. The FLSA sets the federal minimum wage, overtime compensation, and recordkeeping obligations, applying to the vast majority of workers in both private and public employment. 

Employees who have been subjected to wage theft have several avenues for recourse to recover unpaid wages and pursue applicable penalties. Individuals may exercise their private right of action by initiating a civil lawsuit against their employer. Additionally, affected employees may file a complaint with the U.S. Department of Labor for violations of FLSA. The Department of Labor may subsequently conduct an investigation, facilitate mediation, and mandate that the employer pay any outstanding back wages.

Individuals can also sue their employer in court. If they win, employees may receive back pay, liquidated damages, attorney’s fees, court costs, and possible state penalties. Under the FLSA, willful violations allow employees to recover double the unpaid wages.

It is important to be aware of the applicable deadlines for taking action. Under the FLSA, employees generally have two years to file lawsuits—three years in cases involving willful violations—to safeguard their rights. If these deadlines lapse, the opportunity to recover unpaid wages may no longer be available to you.

Understanding these standards is crucial, especially during the holidays when wage disputes can become more prevalent. Employees should familiarize themselves with their rights under the FLSA, including how to identify wage theft and the steps to take if they suspect violations. For further guidance on wage and hour laws, employees can visit resources such as the U.S. Department of Labor’s FLSA overview and Workplace Fairness on wage theft. These sites provide practical information on documentation, complaint procedures, and how to recover unpaid wages, helping workers safeguard their earnings during the holiday season and beyond.

If you believe your employer owes you unpaid wages, Rob Wiley, P.C., is dedicated to representing employees whose rights under the FLSA have been violated. Please contact us to discuss your available options.

Kalandra Wheeler
Kalandra Wheeler is a Board Certified Austin employment lawyer.

Employees often assume that every workplace complaint triggers a formal investigation. In reality, that is not the case. While Texas law does not contain a statute that literally states that an employer must investigate all complaints, there are important legal and practical reasons for employers to take allegations seriously. Some complaints will require a full investigation because of federal and state anti-discrimination laws, while others involve workplace disagreements or policy concerns that do not rise to the level of unlawful conduct. Understanding the difference is essential for employers and employees alike.

Texas does not impose a stand-alone requirement that every workplace concern must be investigated. Employees may raise issues such as personality conflicts, minor disagreements, or general dissatisfaction with management decisions. These situations may be frustrating or disruptive, but they are not automatically violations of the law. Because of this, employers are not legally obligated to launch a formal investigation into every complaint an employee brings forward. Employers must determine which complaints involve legally protected issues and which do not.

Accordingly, employees also need to understand where the law provides protections and where it does not. If an employee believes they are being subjected to unlawful conduct or are witnessing unlawful conduct, they should do their best to articulate the law that they believe is being violated. Where harassment alone may not be a violation of the law, sexual harassment is. While disproportionate work assignments or favoritism on their own may not violate the law, doing so because of an employee’s race does.

Even though employers are not required to investigate every complaint, conducting investigations is still a sound business practice. Investigations demonstrate that the employer takes employee concerns seriously. They help identify problems that could grow into larger issues and they promote a healthier workplace culture. Effective investigations also improve employee trust and morale. When employees see that leadership responds thoughtfully to concerns, the workplace becomes more transparent and efficient. This can be invaluable if a dispute later escalates into a legal claim.

There are situations in which an employer’s discretion disappears because the law steps in. When an employee reports discrimination, harassment, or retaliation based on a protected characteristic under federal law or under Chapter 21 of the Texas Labor Code, the employer must take prompt and appropriate action. Courts and the Equal Employment Opportunity Commission consistently hold that an employer cannot meet its obligations unless it conducts a timely and meaningful investigation. If the employer knows or should know that an employee may be experiencing unlawful conduct, failure to investigate can expose the employer to legal liability, even if the underlying complaint is ultimately unproven. In this context, the investigation is not optional. It is part of the employer’s duty to ensure a workplace free from illegal discrimination and harassment.

Investigations of protected complaints must be prompt, thorough, and impartial. The law requires an employer to take the matter seriously and to make a good faith effort to uncover the facts. An employer that ignores a discrimination complaint, delays unreasonably, or conducts an incomplete review risks legal consequences. Courts often view a failure to investigate as evidence that the employer did not take the complaint seriously or attempted to avoid knowledge of misconduct. This can be just as damaging as the underlying violation.

Not every workplace conflict carries legal significance, yet good management requires attention to employee concerns before they escalate. Investigations can be a valuable internal tool even when they are not legally mandated. At the same time, there are clear situations where the law requires an investigation, and employers must understand which complaints trigger these obligations. 

Employers who establish consistent practices, train managers to recognize legally significant complaints, and respond promptly when protected issues arise are better equipped to maintain a lawful and respectful work environment. Even in Texas, where no statute explicitly requires investigations of all complaints, thoughtful investigative practices remain essential, and legally mandated investigations in discrimination, harassment, and retaliation cases are non-negotiable.

If you believe your employer has failed to investigate or remedy reported violations of the law, we have attorneys available for consultation. Contact me in Houston or one of my colleagues. Our team can evaluate your situation, explain your rights, and advise you on whether the law protects you based on the specific facts of your complaint.

Cameron Hanson
Austin Employment Trial Lawyer Cameron Hansen

In recent years, remote and hybrid work have become a normal part of many employees’ lives. For some, it has offered flexibility, improved health, and a better work-life balance. But along with this shift has come a dangerous myth — that workers lose legal protections once they are out of the physical office. As Texas employment lawyers who fight for workers’ rights, we want to be clear: whether you work from a cubicle, your couch, or a kitchen table, employment laws still protect you.

Discrimination doesn’t disappear just because it happens over Zoom.

Equal Opportunity Law Still Applies to Remote Workers.

Federal laws such as Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA) protect employees from discrimination based on characteristics like race, gender, disability, religion, age, and national origin. These laws apply to remote workers just as they do to onsite employees.

And Texas state law — particularly the Texas Labor Code, Chapter 21 — likewise prohibits discrimination and retaliation against workers who perform their work in Texas, even if their employers are based elsewhere.

How Discrimination Shows Up in Remote Work

While remote work might shield employees from certain in-person hostility, discrimination has found its way into the virtual workplace in subtle — and not-so-subtle — forms. Some common examples include:

  • • Exclusion from meetings or opportunities that could lead to advancement
  • • Unequal workload distribution based on bias
  • • Negative assumptions about productivity because of disability or caregiving responsibilities
  • • Harassment through digital communication — emails, chats, and video calls
  • • Forced return-to-office policies imposed selectively on protected groups
  • • Retaliation for requesting remote work as a reasonable accommodation
  • • Pay inequities that deepen because remote employees are “out of sight, out of mind”

Remote work hasn’t eliminated discrimination — it has simply changed where the harm occurs.

Reasonable Accommodations Are Still Required

The ADA requires employers to provide reasonable accommodations to workers with disabilities, and that includes:

  • • Continued remote-work arrangements
  • • Modified work schedules
  • • Additional breaks
  • • Assistive software or equipment
  • • Adjusted expectations during flare-ups or treatment

Many employers approved remote work during the pandemic — proving it was feasible — but then refuse to allow it as a disability accommodation later. Courts across the country are taking a harder look at this inconsistency.

If remote work enables you to do your job successfully while managing a disability, you have the right to request an accommodation and engage in the interactive process — even from home.

Retaliation Is Still Illegal

Whether you are in-person or remote, your employer cannot retaliate against you for:

  • • Reporting unlawful discrimination
  • • Requesting accommodations
  • • Filing with the EEOC or Texas Workforce Commission
  • • Participating in a protected investigation
  • • Supporting a coworker who makes a protected complaint

Retaliation remains one of the most common violations we see in remote workplaces — because employers may mistakenly believe a termination over email will go unnoticed.

Remote Workers Deserve Documentation More Than Ever

When discrimination occurs over digital platforms, the evidence often speaks louder than anything said in person. Emails, chat logs, calendar events, and Slack or Teams messages can be powerful proof.

Here’s what to save:
✔️ Harassing or biased messages
✔️ Exclusion from meetings or assignments
✔️ Disparaging comments made about protected characteristics
✔️ Pay stubs showing unequal compensation
✔️ Notes of conversations where rights were denied

Remote workers have the advantage of a written record — use it.

You Are Still Protected — and We Are Here to Help

Being physically distant from your workplace should never mean being unprotected. If you are facing discrimination, harassment, or retaliation while working remotely, you have the same rights as any worker in Texas.

And in some cases — you may have even stronger evidence.

Our firm is dedicated to helping remote employees across Texas stand up against unlawful treatment and regain control of their careers. If something feels wrong, don’t ignore it. Reach out. We are here to listen to your story, explain your options, and aggressively protect your rights.

You deserve respect — whether you are in the office or online. Let us help you make sure you get it. Contact Austin Employment Lawyers at https://www.wileylawyers.com/ or call (512) 271-5527 to schedule a consultation to discuss your situation.

Areyana Gilbert
Houston Employment Trial Lawyer Areyana Gilbert

Investigations in the workplace are pretty common and can be a useful tool in negotiations. As an employee of the company, there are a number of considerations which should be at the forefront before the investigation begins. For example, an employee should be mindful of the Upjohn warning and know when to have an attorney present for his or her interview. This blog further explores the contours on information an employee should be aware of before participating in a workplace investigation. 

Workplace investigations have become a routine part of modern organizational life. Companies investigate everything from harassment complaints and safety violations to financial misconduct and conflicts of interest. While these inquiries are meant to uncover facts and protect both the business and its employees, they can also feel intimidating—especially when a corporate investigator sits down to interview you. One of the most important moments in that interview is the Upjohn warning, a legal disclosure many employees have heard of but may not fully understand.

What Is an Upjohn Warning?

An Upjohn warning—sometimes called a “corporate Miranda”—is a statement an investigator gives to clarify who the investigator represents. It stems from a 1981 Supreme Court case, Upjohn Co. v. United States, which affirmed that conversations between company lawyers and employees are protected by attorney-client privilege—but the privilege belongs to the company, not the employee. 

Because employees sometimes assume the company’s lawyer is their lawyer, investigators must clarify:

  • The investigator represents the company, not you.
  • The purpose of the interview is to gather information for the company’s legal needs.
  • The company controls the confidentiality of the conversation and may choose to disclose information to third parties.
  • You are expected to provide truthful information.

This warning ensures employees are not misled and helps maintain the integrity of the investigation.

What Does the Upjohn Warning Mean for Employees?

Hearing that the company’s attorney does not represent you can be unsettling. But understanding the implications helps you approach the conversation responsibly and with appropriate caution.

The warning means:

  • Your statements go to the company, and the company may choose to share them—even if it is not in your personal interest.
  • You still must be truthful. Lying or intentionally withholding information can lead to disciplinary action.
  • You have the right to seek your own legal counsel, and investigators should not discourage you from doing so.

Should an Employee Have an Attorney Present?

Whether you should have a personal attorney depends on the circumstances.

You may want to consult or bring an attorney if:

  • You believe you may be implicated in wrongdoing.
  • The investigation involves harassment, discrimination, retaliation, or other legally protected issues.
  • Law enforcement or regulatory agencies may be involved.
  • You feel uncomfortable or believe your job may be at risk.

An attorney can help you understand your rights, guide your responses, and ensure you are treated fairly.

However, many employees choose to participate without an attorney during routine fact-finding investigations, especially when they are witnesses rather than subjects. Some companies may not allow a personal attorney to attend the interview but will often allow you to speak to your lawyer before or after the meeting.

In sum, workplace investigations are serious, but they aren’t inherently adversarial. Understanding the Upjohn warning empowers employees to participate responsibly and protects both personal and organizational interests. For more information about this warning, click here. If you are ever unsure about your role in an investigation or how your statements may be used, consulting a Texas employment law attorney can provide clarity and peace of mind. Contact me in Houston or Austin today.

Madeline Garza
Houston Employment Trial Lawyer Madeline Garza

In November 2025, Tyson Foods filed a WARN Act notice with the Texas Workforce Commission announcing a mass layoff of 1,761 employees at its Amarillo beef-processing plant. The layoffs are scheduled to take effect on or about January 20, 2026, as the company eliminates its entire B-shift operations, the plant’s second production shift, typically covering afternoon and evening hours.

The 44-page WARN filing detailed job titles ranging from production laborers and machine operators to maintenance and quality assurance roles. Tyson cited industry-wide challenges, including tight cattle supplies and restructuring efforts, as reasons for the reduction. While the company expressed regret over the impact on workers and pledged to minimize disruption, the notice raised questions about compliance with the WARN Act’s 60-day notice requirement.

If the company failed to meet the statutory timeline, affected employees could be entitled up to 60 days of back pay and benefits. This case underscores the importance of monitoring employer compliance and seeking legal advice when large-scale layoffs occur

When a company announces mass layoffs or plant closures, employees often face sudden financial uncertainty and emotional stress. The Worker Adjustment and Retraining Notification Act (WARN Act) was enacted to protect workers by requiring employers to provide advance notice before significant workforce reductions. If you believe your employer violated this law, understanding its scope and limitations is critical.

What Is the WARN Act?

The WARN Act is a federal law passed in 1988 to give employees and communities time to prepare for the economic impact of large-scale job losses. It requires certain employers to provide 60 days’ written notice before:

Plant Closures: Shutting down a facility or operating unit that results in job loss for 50 or more employees during a 30-day period.

Mass Layoffs: Reducing the workforce by 500 or more employees, or by 50–499employees if that number represents at least 33% of the workforce at a single site.

This notice allows employees to seek new employment, enroll in retraining programs, or adjust financially before losing income.

Consider a manufacturing plant with 200 employees that announces a closure effective in 30 days. Under the WARN Act, the employer should have provided 60 days’ notice. If they fail to do so, affected employees may recover up to 60 days of back pay and benefits. However, if the closure was due to a sudden natural disaster, the employer may invoke the unforeseeable business circumstances exception.

Who Is Covered Under the WARN Act?

Employers: Businesses with 100 or more full-time employees.

Employees: Full-time workers who have been employed for at least six months in the past 12 months.

Part-time employees and those with less than six months of service are generally excluded from the threshold calculations, though they still receive notice if affected.

Failure to provide proper notice can result in significant liability for employers. Employees may be entitled to back pay for each day of violation (up to 60 days) and benefits compensation, including health insurance premiums. These remedies can make a meaningful difference for workers blindsided by sudden layoffs.

Employers sometimes attempt to sidestep WARN Act obligations by splitting layoffs into smaller groups to avoid triggering thresholds, misclassifying employees as contractors, and/or claiming unforeseeable business circumstances without proper documentation. If you suspect these tactics, schedule a consultation with one of our employment attorneys promptly.

What Is NOT Considered a Violation of the WARN Act?

Not every job loss scenario falls under WARN. Here are key exceptions:

–       Small Reductions in Force: layoffs affecting fewer than 50 employees at a single site generally do not trigger WARN.

–       Short-Term Layoffs: if the layoff is expected to last less than six months, WARN notice is not required.

–       Unforeseeable Business Circumstances: sudden, unexpected events, such as a natural disaster or abrupt loss of a major contract, may exempt employers from the full 60-day notice requirement.

–       Faltering Company Exception: if a company is actively seeking capital or business to avoid closure and believes notice would jeopardize those efforts, it may qualify for an exception.

–       Sale of Business: when ownership changes but employees continue working without interruption, WARN does not apply.

Understanding these exceptions helps employees distinguish between legitimate business decisions and unlawful conduct.

State WARN Laws: Additional Protections

Many states have their own WARN statutes that provide greater protections than the federal law. For example: California WARN Act: Covers employers with 75 or more employees and requires notice for layoffs of 50 or more employees, regardless of percentage and New York WARN Act: Requires 90 days’ notice and applies to employers with 50 or more employees.

Employees should check their state’s specific requirements, as these laws often expand coverage and penalties.

Final Thoughts

If you believe your employer violated the WARN Act, document everything. Keep copies of termination notices, emails, and internal communications, determine whether thresholds for layoffs or closures were met. Lastly seek legal advice.

The WARN Act is a powerful tool for protecting workers during times of economic upheaval. While employers have legitimate defenses, many violations occur due to poor planning or deliberate avoidance. If you’re facing sudden job loss, knowing your rights is the first step toward securing the compensation you deserve. Schedule a consultation with one of our attorneys today. Contact me in Houston or any one of my colleagues in Austin or Dallas. We represent employees all over Texas.

The federal Occupational Health and Safety Administration does a lot more than investigate and respond to workplace safety issues. It also operates a Whistleblower Protection Program to administer special anti-retaliation provisions for various types of claims, many of which the general public does not know much about.

This blog is Part 2 of 2 to talk about these whistleblower protections, of which there are currently 25. Part 1 focused on protections that have deadlines shorter than 180 days—as short as 30 days! Part 2 will focus on the protections with deadlines of 180 days. If you want to read more, a summary chart of these whistleblower protections is available on OSHA’s website. However, for advice tailored to you and your situation, you should contact an employment lawyer.

Here are definitions that generally apply to all of the laws I discuss below:

  • Protected activity: actions you can take that are protected by the specific law, like making a complaint related to the subject of the law, usually to your employer or a government agency.
  • Retaliation: someone takes an adverse employment action against you (including termination, demotion, pay cuts, or reassignment) because you engaged in protected activity.

180 DAYS TO FILE

Affordable Care Act (ACA)

  • You are covered if you work for any employer, generally.
  • ACA protects you from retaliation when you engage in protected activity related to the Affordable Care Act’s heath insurance reforms (colloquially known as “Obamacare”), including reporting potential violations of market reforms. It also protects you from retaliation for receiving a tax credit or subsidy from buying health insurance through a marketplace.

Criminal Antitrust Anti-Retaliation Act (CAARA)

  • You are covered if you work for any employer, generally, excluding the federal government.
  • CAARA protects you from retaliation when you engage in protected activity related to criminal antitrust laws, including reporting violations of those laws or violations of other criminal laws done alongside antitrust violations.

Consumer Financial Protection Act (CFPA)

  • You are covered if you work for an employer that offers or provides a consumer financial product or service, as well as certain affiliates.
  • CPFA protects you from retaliation when you engage in protected activity related to consumer financial products or services, including reporting violations of the CFPA or other things governed by the Consumer Financial Protection Bureau (CFPB).

Consumer Product Safety Improvement Act (CPSIA)

  • You are covered if you work for a consumer product manufacturer, importer, private labelers, distributor, or retailer.
  • CPSIA protects you from retaliation when you engage in protected activity related to consumer product safety, including reporting violations of any federal consumer product safety law.

Energy Reorganization Act (ERA)

  • You are covered if you work for certain employers in the nuclear industry.
  • ERA protects you from retaliation when you engage in protected activity related to nuclear energy or nuclear material, including reporting violations of the ERA, the Atomic Energy Act, or related regulations.

Federal Railroad Safety Act (FRSA)

  • You are covered if you work for a railroad carrier or a contractor.
  • FRSA protects you from retaliation when you engage in protected activity related to railroad safety, including reporting a workplace injury or illness, a safety or security hazard, a violation of related laws, or misappropriation of public funds used for railroad safety. It also protects you from retaliation for refusing to work in the presence of a safety or security hazard.

FDA Food Safety Modernization Act (FSMA)

  • You are covered if you work for an employer that manufactures, processes, packs, transports, distributes, receives, holds, or imports food.
  • FSMA protects you from retaliation when you engage in protected activity related to food, drug, or cosmetic safety, including reporting violations of the Food, Drug, and Cosmetic Act.

Moving Ahead for Progress in the 21st Century Act (MAP-21)

  • You are covered if you work for a motor vehicle manufacturer, part supplier, or dealership.
  • MAP-21 protects you from retaliation when you engage in protected activity related to certain motor vehicle issues, including reporting defects or violations of federal laws about the manufacture or sale of motor vehicles (or equipment).

National Transit Systems Security Act (NTSSA)

  • You are covered if you work for a public transportation agency or a contractor.
  • NTSSA protects you from retaliation when you engage in protected activity related to public transportation safety and security, including reporting a safety or security hazard, or reporting misappropriation of public funds used for public transportation safety or security.

Pipeline Safety Improvement Act (PSIA)

  • You are covered if you work for an employer that owns or operates a pipeline facility, or a contractor.
  • PSIA protects you from retaliation when you engage in protected activity related to pipeline safety, including reporting violations of federal pipeline safety law.

Sarbanes-Oxley Act (SOX)

  • You are covered if you work for a public company or a contractor.
  • SOX protects you from retaliation when you engage in protected activity related to public company fraud, including reporting violations of federal criminal mail, wire, bank, or securities fraud; violations of SEC rules or regulations; or violations of any federal law related to shareholder fraud.

Seaman’s Protection Act (SPA)

  • You are covered if you work for any employer, generally. You also must be a seaman (work on a U.S.-flag vessel or a vessel owned by a U.S. citizen, excluding members of the Armed Forces).
  • SPA protects you from retaliation when you engage in protected activity related to maritime safety, including reporting violations of maritime safety laws or regulations, sexual harassment or sexual assault, or work-related injuries or illnesses. It also protects you from retaliation for accurately reporting hours of duty.

Surface Transportation Assistance Act (STAA)

  • You are covered if you work for a private-sector employer that owns or leases commercial motor vehicles (CMVs), or assigns employees to operate CMVs in commerce. You also must be a driver (including independent contractors) or a worker involved in CMV safety or security.
  • STAA protects you from retaliation when you engage in protected activity related to CMV safety or security, including reporting violations of CMV safety or security, refusing to operate a CMV under certain circumstances, or accurately reporting hours on duty.

Taxpayer First Act (TFA)

  • You are covered if you work for any employer, generally.
  • TFA protects you from retaliation when you engage in protected activity related to tax fraud, including reporting underpayment of tax or violations of internal revenue laws. It also protects you from retaliation for certain complaints regarding pay misclassification.

We can help you protect your rights as a whistleblower!

Deciding where, how, and when to take action in whistleblower retaliation issues is what employment lawyers are experts in. It is especially important to speak to an employment lawyer if you believe your employer retaliated against you for being a whistleblower because the protections are very specific and because many statutes of limitation are incredibly short—as short as 30 days!

Austin employees who believe they have suffered illegal discrimination, harassment, or retaliation at work for being a whistleblower should contact my office, Austin Employment Lawyers, P.C. The attorneys at Austin Employment Lawyers, P.C., represent employees in the Austin area and across Texas in all types of employment law claims, including retaliation, discrimination, pay disparities, harassment, and failure to provide a reasonable accommodation.

For more information or to schedule a consultation, please visit our website or call us at (512) 271-5527.

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Austin Employment Lawyer Ty'Queese Keyes

Retaliation has become the most frequently filed type of employment law claim with the Equal Employment Opportunity Commission (EEOC). In fact, more than half of all workplace discrimination complaints now include allegations that an employee was punished for speaking up for themselves or others. Recognizing the signs of retaliation and knowing how to safeguard yourself when reporting wrongdoing can be vital for both your employment and your rights.

Retaliation occurs when an employer takes an adverse action against an employee because that person engaged in a “protected activity.” Protected activities include reporting discrimination, harassment, wage violations, or unsafe conditions; participating in an investigation; or even simply opposing unlawful practices in good faith. Adverse actions can take many forms. Employers may use subtle tactics like shift changes, isolation, exclusion from meetings, and unwarranted performance reviews or more explicit tactics like terminations, pay cuts, and demotions. The key question is whether the action would deter a reasonable person from reporting wrongdoing.

When this occurs, employees must understand the steps to protect themselves in case their employer retaliates against. Employees do not need to prove discrimination to be protected by anti-discrimination laws. The law safeguards an employee as long as their complaint was made honestly and in good faith. This means that even if an investigation concludes there was no violation, the law still safeguards those who raise concerns responsibly. Secondly, thorough documentation of all complaints, meetings, and subsequent changes in treatment is essential. This means keep written or electronic records of your complaints, meetings with the employer, and any changes in how you are treated after making said complaint. Emails, text messages (including Teams or Slack messages), and notes of conversations can be critical. In some states, you are allowed to even record conversations. Employees should note that laws about recording conversations differ by state, especially regarding consent. Please double-check your state’s recording laws before doing so. Thirdly, when possible, utilize internal channels. An employee should report concerns through Human Resources or ethics hotlines. This will show you acted responsibly and allows the Employer to fix the issue.

Employees can protect themselves by reporting issues clearly, professionally, and with evidence. Though it can be scary once you see a pattern of retaliation occurring at your workplace, do not let fear silence you. The law is clear: you have the right to speak up about illegal practices or discrimination without punishment. Retaliation for exercising those rights is itself unlawful. It is important to seek further legal advice there are strict deadlines for filing retaliation claims. If you believe you’re being targeted after filing a complaint, talk to an employment attorney here or contact the EEOC promptly.