Employment is a really unique area of law. In Texas and federally, you cannot go straight to filing a lawsuit against your employer after they have violated your rights. This is how employment law seriously differs from, say, personal injury, where you could file a lawsuit pretty immediately.

In most employment law claims in Texas and in the federal court system, you must first exhaust administrative remedies and receive permission to sue your employer. When people think of employment law, they think mainly of discrimination and retaliation of protected categories of people (such as race, gender, sexuality, age, and disability). For these kinds of claims, the agencies that you would file with in Texas would be:

·      Equal Employment Opportunity Commission (EEOC) – For federal discrimination and retaliation claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA)

·      Texas Workforce Commission (TWC) – For Texas Labor Code discrimination and retaliation claims)

There are some claims, however, where there’s no requirement to exhaust administrative remedies. For example, for a claim under the Family Medical Leave Act, you can go straight to filing suit.

Even trickier, there are some claims where the government is the only entity to file a claim and there is no right to file an actual lawsuit. Examples of this would be union or labor disputes reported to the National Labor Relations Board (NLRB) under the National Labor Relations Act (which protects union activity and protects you against retaliation for things like discussing wages and attempting to unionize, even if a union isn’t ever formed), or whistleblower claims to OSHA under the Occupational Safety and Health Act.  

So, for claims where administrative remedies must be exhausted, the

1. Filing a Charge: The first step in exhausting administrative remedies is to file a charge of discrimination or other employment violation with the EEOC or TWC. This charge must be filed within a specific time frame—typically 180 days from the date of the alleged discriminatory act. In some cases, this period may extend to 300 days if the charge is also covered by state or local laws.
2. Agency Investigation: Once a charge is filed, the agency will notify the employer and conduct an investigation. The investigation depends on the agency. For example, at the EEOC, the investigation will primarily include the employer submitting its response to the allegations in the employee’s charge. The employee will have a chance to submit a rebuttal to this position statement. An NLRB investigation involves an NLRB investigator calling the employee, interviewing them, and taking a detailed statement.
3. Agency Determination: After completing its investigation, the agency will make a determination. However, most people receive a “neutral” finding where there is no affirmative finding of discrimination one way or another. The EEOC only issues cause findings (findings where they affirmatively say discrimination occurred) in less than 5% of claims. This does not mean that only 5% of claims are meritorious, though. The EEOC oftentimes cannot conclude an investigation in what it deems a reasonable amount of time and instead issues the employee a right to sue.
4. Right to Sue: Receiving a “Right to Sue” letter is a critical step in exhausting administrative remedies. It signifies that the employee has fulfilled their obligation to attempt resolution through the administrative agency and can now file a lawsuit in court. A right to sue from the EEOC expires in 90 days. A right to sue from the TWC expires in 60 days. This means that employees must move quickly to file a lawsuit after exhausting administrative remedies.

 As you can tell, this is a complicated process that presents many roadblocks for employees. That’s why it’s so important to hire an attorney to guide you through it. Call me today or one of my colleagues in Austin or Houston for help.