As you may hear over and over again, Texas is an at-will employment state. What that means is that there are limited protections for employees in the workplace. At-will employment means that employers can change the terms and conditions of a person’s employment, discipline an employee, or even terminate an employee for any reason or no reason at all. The actions of the employer may be unfair, they may be unreasonable, they may even be based off false allegations, but that does not mean that an employer’s actions are unlawful.
For an employer’s actions to be unlawful, the employer’s actions must be based on unlawful motivations. Unlawful motivations would be things like race, color, national origin, religion, sex, age, or disability. These are just a few examples of the unlawful motivations an employer may have.
Sadly, at-will employment also means that not all forms of retaliation in the workplace are unlawful. An employee must engage in what the law calls “protected activity” that motivated the employer to take retaliatory action. Only then is the retaliation by the employer unlawful.
This means, an employee facing retaliation after generally complaining about their supervisor giving them a bad performance review will likely have no protections under the law from retaliation. On the other hand, a 50-year-old employee complaining they received a bad performance review because of their age, while 30-year-old employees with performances similar to theirs received great performance reviews, is more likely making a complaint that legally protects them from retaliation.
So, what type of complaint protects employees from retaliation?
Complaints that generally protect employees from retaliation are complaints that put the employer on notice that they, or their employees, are participating in unlawful discrimination or harassment.
Many employees fear that the more specific their complaints to human resources the more likely they are to face backlash. Retaliation is a legitimate fear. There are many instances where employees do in fact face retaliation for making complaints in the workplace. But making a general complaint versus a more specific complaint may be the only thing that provides an employee with any legal recourse should the employer decide to retaliate against the employee after that complaint is made.
So, what should employees do if they want to make a complaint of unlawful discrimination or harassment at work?
First, if an employee believes they are the victim of unlawful discrimination, sexual harassment, unpaid wages, or any other unlawful conduct by their employer, they should speak to an employment attorney at the first sign of trouble. Our employment lawyers are available for consultations to discuss employment disputes, the law, and an employee’s options for taking action.
Second, if any employee chooses to make a complaint to human resources, they should be specific. It may not be enough to say they are being treated unfairly by their supervisor. If an employee believes their supervisor, manager, or coworkers are targeting them for a specific reason, stating the reason may give them legal protections. For example, “my supervisor is singling me out because I’m over 50 and the oldest in the group,” “they are harassing me because I’m Muslim,” or “I’m being passed over for promotions because I am a woman” are statements that give employers specific information about illegal discriminatory actions.
Third, if an employee is making a complaint, they should put it in writing and keep a copy! Employers will often say the employee never complained, or never complained of anything unlawful. Complaints should be dated, and the employee should make notes of who they delivered each complaint to. Employees should always save a copy of their complaints.
Retaliation in the workplace is real. But not all complaints protect employees from retaliation. It is best to consult with an employment attorney to know your rights. Don’t wait. Seeking advice early may be the difference between protecting your rights or losing your rights. Our employment attorneys are available for consultations to help you understand the law and have a plan of action.