Shaleigha Shepard
Shaleigha Shepard Trial Attorney

As an employee in Houston, Texas, understanding your rights under the Family and Medical Leave Act (FMLA) is crucial. The FMLA is a federal law that provides eligible employees with job-protected leave for specific family and medical reasons. For workers facing health challenges or needing time to care for their loved ones, FMLA can be an essential support system. However, navigating its complexities requires insight and awareness.

In Houston, just like in the rest of the United States, eligible employees are entitled to up to 12 weeks of unpaid leave within a 12-month period under FMLA. This leave can be taken for various reasons, including:

  • The birth, adoption, or fostering of a child.
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition.
  • To attend to the employee’s own health condition that makes them unable to perform their job.

It’s essential to note that the leave is unpaid, but employers may allow or employees may choose to use paid leave (like sick or vacation days) to cover some or all of the FMLA leave period.

To be eligible for FMLA in Houston, employees must have worked for their employer for at least 12 months, accumulated 1,250 hours of work in the preceding 12 months, and work for an employer with 50 or more employees within a 75-mile radius. Not meeting these criteria might exclude employees from FMLA coverage.

Employees seeking FMLA must give notice to their employer as soon as practicable. In cases of foreseeable leave, such as planned medical treatments or the expected birth of a child, employees should provide 30-day notice. In emergency situations, notice should be given as soon as possible.

Houston, being a part of Texas, also operates under state-specific employment laws, which may interact with federal laws like the FMLA. For instance, some employers might provide more generous benefits or offer FMLA coverage to employees not covered by the federal law. It’s crucial for Houston employees to understand both federal and state-level regulations to ensure they are fully informed about their rights.

Employers are obligated to maintain an employee’s health benefits during their FMLA leave and reinstate them to the same or an equivalent position upon return. Employers should not retaliate against employees for taking FMLA leave or interfere with their rights under the law.

Navigating the intricacies of FMLA in Houston, Texas, demands an understanding of both federal and state-specific laws. Employees must be aware of their rights, eligibility criteria, notification requirements, and potential benefits. Seeking legal counsel or guidance from HR professionals can significantly assist employees in comprehending and asserting their rights under the FMLA.

Remember, knowledge is power. Employees in Houston should familiarize themselves with these crucial details to ensure they can effectively utilize the provisions offered by the FMLA. Stay informed, know your rights, and seek assistance when needed to protect your interests in the workplace.

Know your rights when it comes to FMLA. If you’ve faced challenges or retaliation while exercising your FMLA rights, seeking guidance from an experienced employment attorney is crucial. Contact me in Houston or reach out to our skilled Texas employment lawyers in Austin or Dallas today for the support you need.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Sometimes I see random things and go down a rabbit hole. So, I decided to have a Tea Party, invite you along, and share my findings this time. I ran across a newspaper article about Piggly Wiggly, which lead me here. If you are from the south, then you know that Piggly Wiggly is a well-known supermarket chain founded by Clarence Saunders in 1916 in Memphis, Tennessee. I expect that the name Piggly Wiggly is familiar even beyond the south. Saunders introduced the concept of the modern grocery store with the first self-service grocery store model. The store was organized by departments, there was transparency with price marking, and customers could browse the store freely and pick their items from shelves rather than having a clerk fetch items for them. This innovation revolutionized the retail grocery business. 

Piggly Wiggly was very successful, paving the way for the supermarket model we see today, as other independent grocery stores and chains began to follow its model. The Dallas Morning News reports that by 1932, at its peak, Piggly Wiggly operated 2,660 stores. Over the years, Piggly Wiggly stores have evolved. Some are owned by individual franchisees, while others are part of larger corporate entities. Yet, it is not what it was in 1932. Now, despite being found in 18 states, Piggly Wiggly has significantly fewer locations, with approximately 500 stores. In Texas, there are two, one in Athens and the other in Paris.

Despite being a model for other retailers to follow, Piggly Wiggly has not always been a model to follow. The rabbit hole led me to 1987 when a class action racial discrimination suit was filed against Dixieland Food Stores, which encompassed 48 Piggly Wiggly stores in four states: Mississippi, Alabama, Georgia, and Florida. This lawsuit resulted in a settlement of $9 million and was a pivotal legal battle addressing allegations of racial bias in employment practices within these stores. The settlement was to represent back pay and damages to be paid to about 1,000 African American employees, including those “who are or have been employed by, or who have sought to be employed by D.L. Food Stores at any time from Aug. 7, 1981, through May 20, 1990[.]” (See L.A. Time Archives, Apr. 26, 1993, “Piggly Wiggly Grocery Store Chain Settles Four-State Racial Bias Suit for $9 Million.”)

In addition to financial compensation for the victims of Piggly Wiggly’s discriminatory practices, the settlement, which received approval from U.S. District Judge Harold Albritton of Montgomery, Alabama on March 20, 1992, mandated a significant restructuring of the company’s hiring practices. It included a stringent order requiring the company to ensure that 30% to 33% of its management positions were filled by African American individuals within the following five years. This was necessary when testimony revealed that African American employees were not provided the same advancement opportunities.  There was testimony that there was company policy that limited hiring opportunities for African Americans. A top management employee had been quoted making racially derogatory statements at management meetings such as: “(1) he would not hire another black until the government made him; (2) the store manager[s] should not hire blacks to handle money; and (3) the store manager[s] should not hire black cashiers because they steal. Mr. Neal also testified that Lee’s evaluation of the cause of inventory losses at the Marianna, Florida, store was that blacks were causing the white employees to steal.” (See Wynn v. Dixieland Food Stores, Inc., 125 F.R.D. 696 (M.D. Ala. 1989).

While the settlement’s financial compensation was substantial, the underlying emphasis on the imperative of diversity, inclusion, and fair employment practices resonated far beyond the monetary value. It marked a notable moment in the ongoing struggle for workplace equality, reminding corporations of the necessity to create environments that welcome and support individuals from all racial backgrounds.

What happened at these Piggly Wiggly stores in the 80s and before, is not unheard of today. Race discrimination in hiring, firing, and promotions, is a common and real occurrence.  If you or someone you know is facing race discrimination, we have employment attorneys available for consultation. 

Going down the rabbit hole can lead to interesting facts. This moment in history began with my reading an article predicting a comeback for the grocery retailer in the state of Texas. C&S Wholesale Grocers, the owner of the Piggly Wiggly brand, struck a deal to acquire more than 400 Kroger and Albertsons stores across the country. However, this acquisition is contingent upon the Federal Trade Commission’s approval of the pending $24.6 billion merger between Kroger and Albertsons. Of those 400 stores, 26 are reportedly in Texas. Will they be branded Piggly Wiggly? I don’t know. I really do not care. I am loyal to my current grocery chain, but it was fun looking at a little piece of history.

Colin Walsh
Texas Employer Lawyer Colin Walsh

My birthday is this week.  I turn 40.  That means I’m now in a protected class!  The older worker class.  So as I continue the slow walk up the stony steps towards the box, I thought I’d talk about the ADEA.

Age discrimination in the workplace is a pervasive issue that affects countless individuals across the United States. The Age Discrimination in Employment Act (ADEA) was enacted to combat this problem and ensure that individuals are judged based on their abilities and qualifications rather than their age. 

The ADEA was passed in 1967 and amended several times since to address the issue of age discrimination in employment. Its primary objective is to protect workers aged 40 and older from discriminatory practices in hiring, promotion, compensation, and termination. The ADEA applies to employers with 20 or more employees, employment agencies, labor organizations, and the federal government.

Key Provisions of the ADEA

  1. 1. Prohibition of Age Discrimination: The ADEA makes it illegal for employers to discriminate against employees or job applicants based on their age. This includes all aspects of employment, from hiring and firing decisions to promotions and compensation.
  2. 2. Equal Employment Opportunities: The ADEA mandates that employees aged 40 and older should be provided with the same employment opportunities as younger workers. They should not be excluded or disadvantaged based on their age.
  3. 3. Bona Fide Occupational Qualification (BFOQ): While the ADEA prohibits age discrimination, there are exceptions when age is a bona fide occupational qualification reasonably necessary for the normal operation of a particular business. For example, age limits can be imposed for certain safety-sensitive positions.
  4. 4. Retaliation Protection: The ADEA also safeguards employees who assert their rights under the act by prohibiting retaliation. This means that if an employee reports age discrimination or participates in a related investigation, they cannot be subject to adverse employment actions as a result.

Significance of the ADEA

  1. 1. Promoting Equal Opportunity: The ADEA plays a crucial role in promoting equal employment opportunities for older workers. It ensures that they are not unfairly marginalized in the workforce based solely on their age.
  2. 2. Fostering Diversity: Age diversity in the workplace is not only a matter of fairness but also contributes to a rich and diverse workforce. The experience and wisdom of older employees can bring unique perspectives and skills to the table, enhancing overall productivity and innovation.
  3. 3. Economic Security for Older Workers: As people are living longer and working well into their later years, the ADEA provides economic security by preventing age-based discrimination that could otherwise lead to unemployment or underemployment.

There are problems with the ADEA and its coverage is incomplete.  As mentioned above, it only covers employers with 20 or more employees.  Also, because it is only focused on older workers, young scamps might be discriminated against.  In some cases, younger workers may claim that policies intended to protect older employees actually discriminate against them. Further, while age discrimination is illegal, discrimination based on higher pay is not.  Older workers tend to be paid more than younger workers because they have more experience and are awesome.  One cynical defense that has gained traction is that these older workers were not fired for their age, but their pay.  The legal gymnastics that courts go through to say that age played no role in such a decision is disheartening.

In any event, the Age Discrimination in Employment Act is a critical piece of legislation that plays a pivotal role in protecting the rights of older workers. It fosters equal employment opportunities, promotes diversity, and ensures economic security for individuals aged 40 and older. However, it is essential to recognize the challenges and limitations of the ADEA and work towards continuous improvements to address the evolving nature of age discrimination in the modern job market. By upholding the principles of fairness, equity, and respect for the wisdom of experience, we can create a more inclusive and prosperous work environment for people of all ages.

Paige Melendez
Dallas Employment Lawyer Paige Melendez

When a company files for bankruptcy, the media plasters photos of their “going out of business” signs and empty storefronts to announce that the company could be no more. What is not shown is the complex, often long process of actually filing for bankruptcy. Filing for bankruptcy also comes in different flavors and different factors may help employees’ situations. To give a general idea of how bankruptcy affects employees, below we’ll look at the types of bankruptcy as well as examine the additional factors that may change the outcomes for employees. All in all, the announcement of bankruptcy can be terrifying for any employee that is currently employed by that company, but by learning more about the process it can help employees make more informed decisions. 

Beginning with types of bankruptcy, if a company files under Chapter 11, it means that the company may attempt to reorganize and continue operating under court supervision. In this case, the company may have to make difficult decisions such as reducing its workforce, closing unprofitable departments, or renegotiating contracts with suppliers and creditors. The company may also be able to negotiate with labor unions to reduce salaries or benefits temporarily. However, in some cases, employees may be able to keep their jobs or be rehired once the company emerges from bankruptcy. 

Another potential filing is under Chapter 7 or where a company is liquidated. Liquidation means that a business’ assets will be sold to pay off its creditors. In this case, employees will likely lose their jobs, and the bankruptcy trustee will use the proceeds from the asset sales to pay any outstanding wages and benefits owed to them. This situation is not ideal, but there’s still another option.

The third option entails a company being sold. In these cases, a bankrupt company may be sold to a new owner who will continue operating the business. In this scenario, the new owner may choose to retain some or all the existing employees or may offer them new contracts with different terms and conditions.

Moving on to specific factors that may come into play, the size of the company can make a difference. For larger companies, there may be more resources available for restructuring or finding a buyer, which could increase the chances of employees being able to keep their jobs or finding new employment opportunities. Conversely, smaller companies may not have as much leverage, and may be more likely to go out of business entirely.

The industry that the company operates in can also play a role. For example, if the company is in a declining industry or one that is particularly affected by economic downturns, it may be more difficult for employees to find new jobs quickly. On the other hand, if the company is in a growing industry with high demand for workers, affected employees may have more options.

Finally, the legal framework in the jurisdiction where the company is based can impact what happens to employees. For example, some countries have stronger labor protections that can make it more difficult for companies to lay off employees or reduce their benefits. Similarly, some countries may have more generous social safety nets that can help mitigate the impact of job loss.

Overall, when a company files for bankruptcy, it is a complex and difficult situation for employees, but employees do not have to go down with the ship. Instead, employees can consider resources available to help affected workers navigate this challenging time including unemployment benefits, job training programs, and setting up a time to speak with a Dallas Employment Lawyer. 

Paige Melendez
Dallas Employment Lawyer Paige Melendez

There are certain skills that as we go through life we must obtain. One of those of those skills is knowing when enough is enough and it’s time to walk away. And it is a skill to be able to recognize that and act on the recognition. This skill is especially relevant in any type of legal process. The reason why is that sometimes moving forward is not the best action you can take and that’s a big decision, but hopefully some of the considerations below will help to illustrate good ways to analyze the choices made as a client. 

We’ll start with an example of a situation where a big decision must be made: do you file a lawsuit?

That decision should be informed by a multitude of factors and most of them have nothing to do with the law. I know, the law not being one of the main contenders seems like an odd stance, but there are so many relevant human considerations that should be taken into account instead. To take care of this, let’s suppose that the question of filing a lawsuit has already been decided – there are grounds to file, the Firm agreed, and the only decision to be made is whether to go for it. 

As a client, certain things may be helpful to consider in this situation: family circumstances, time, financial ability, and emotional wellbeing. To begin with, family circumstances matter more than it may seem at first blush. The litigation process can take years and years to work your way through, this means time away from the family when you’re needed to give information for the case, be deposed, and even attend important meetings with your attorney. The time investment adds up especially since there are certain deadlines and work that must be completed by the client and by specific deadlines. The time away from family is just one of the facets of time to consider. The time that a client must put in to successfully litigate a case should not be underestimated. The specific deadlines matter for both your case and your attorney – the 9:00 P.M. phone calls that must be answered are nothing to overlook as well as early times for depositions where you must take off work. 

Missing work can have negative consequences for current employment, which brings us into financial ability. As I’m sure the media portrays, litigation is costly. Not only the startup costs, but the costs that manifest in other ways like the income that is missed by missing work. The financial portion is a huge part of litigation and as much as we would want litigation to be free, the costs can be higher than is realized upfront. This brings us to the last factor that can be considered: emotional wellbeing.

The emotional toll that litigation takes is vast. Not only do you have to repeat your story and possible trauma over and over again, but in depositions you may have to experience distress and discomfort defending it. The strength that is required to push through is taxing mentally and emotionally both to you, but also to the people around you. 

But all these factors are not to suggest litigation is not all uphill battles and hard work. Trials and having a case heard by the justice system is rewarding. Your case and voice being heard in an impactful way that will become a public record is a powerful acknowledgement of the harms that caused you to seek an attorney in the first place. The validation, even if the trial is lost, can make all the things above seem like a small price to pay. The passion is what can make litigation worth it, and we want to support that passion. However, as Dallas Employment Lawyers, we also want you to make the best decision for you because in the end that’s what really matters.

Paige Melendez
Dallas Employment Lawyer Paige Melendez

April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test. 

A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.

Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.

Another consideration when it comes to evaluating how drug testing functions in your workplace is to consider whether the testing is required by law or regulation. In some industries, such as transportation and healthcare, drug testing may be required by federal or state regulations. In these cases, the situation becomes tricky for employees because failure to drug test could be used as a reason for termination. This means that disclosing any or all over the counter and prescription medications that you may be taking becomes a necessity to avoid a false positive. In fact, some government agencies require drug testing as a prerequisite to employment.

Based on the above, it does not seem to leave a lot of options for employees to avoid drug testing though drug testing remains controversial. The controversy stems from the fact that drug testing is not always a reliable indicator of current drug use or impairment. Some drugs, like marijuana, can remain detectable in the body for days or weeks after use, even if the employee is no longer impaired. Additionally, drug tests may produce false positives, leading to unfair or incorrect conclusions about an employee’s drug use.

The landscape of drug testing in the workplace is not a new battlefield. The inaccuracies in tests, the potential to punish employees for off-work activity, and the potential for discrimination all support arguments against drug-testing. However, if there is a drug-testing policy it is important to be informed about how it works and what you may be required to do. That makes it easier to notice when an employer may be breaking the law, but a Dallas Employment Lawyer can help assess it, too. 

“Drug Testing in the Workplace” outlined by the Texas Workforce Commission: https://efte.twc.texas.gov/drug_testing_in_the_workplace.html

Substance Abuse and Mental Health Services Administration: https://www.samhsa.gov/

Department of Transportation Office of Drug & Alcohol Policy & Compliance: https://www.transportation.gov/odapc

Paige Melendez
Dallas Employment Lawyer Paige Melendez

For a long time, there was a gray area under the Americans with Disabilities Act, the Pregnancy Discrimination Act, and relevant case law when it came to accommodating pregnancy in the workplace. Under the current laws, discriminating against employees for being pregnant is illegal, but the current law’s protections do not extend far enough. The Pregnant Workers Fairness Act (“PWFA”) bridges this gap and goes into effect on June 27, 2023. Let’s explore the key provisions of this act and its significance in promoting workplace equality and supporting pregnant workers.

The PWFA requires employers to provide reasonable accommodations to pregnant employees. Examples of these accommodations include adjustments to work schedules, access to water and bathroom breaks, modified tasks, assistance with heavy lifting, and temporary transfers to less strenuous positions. The PWFA mirrors the process under the Americans with Disabilities Act for receiving accommodations. In brief, engaging in the interactive process would mean approaching your employer or putting your employer on notice of your pregnancy. Then, engaging in the interactive process by asking for accommodations and working with your employer to find a reasonable accommodation. 

The PWFA also mandates that employers provide written notice detailing their protections under the act. This includes information about the right to be free from pregnancy discrimination, the right to reasonable accommodations, and avenues for reporting violations. Additionally, employers are required to maintain records related to reasonable accommodations and make them available for inspection upon request. Both private and public employers are covered as long as an employer has fifteen employees including Congress, Federal agencies, employment agencies, and labor organizations.

The PWFA like the other discrimination laws has robust safeguards against retaliation towards an employee for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation). Employees who exercise their rights under the Act by filing complaints with the Equal Employment Opportunity Commission (EEOC) or pursuing legal action are likewise protected from adverse actions such as demotion, termination, or harassment. More specific actions that are prohibited are the denial of a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation; or require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working. 

Prior to the PWFA being passed, case law from the Supreme Court clarified that employers must treat pregnancy-related limitations in the same manner as other temporary disabilities under the Pregnancy Discrimination Act.  For example, if an employer allowed a light-duty position for one employee, then a pregnant employee would have to be extended the same consideration. On its face the decision seems to reinforce the policy idea behind the Pregnancy Discrimination Act that prohibits discrimination against an employee because they are pregnant. In practice, it relieved employers from having to extend specific accommodations to pregnant employees outside the confines of the ADA. The policy left several gaps in coverage for pregnancy employees, which is why the PWFA is such a necessary measure.  

The new law goes into effect around the end of June, but pregnant employees are still covered under the current discrimination laws like the Pregnancy Discrimination Act. Unfortunately, the PWFA is not retroactive, but it does not mean that it is too early to learn about this new addition to pregnant employees’ rights under the law. Thus, employees who believe they have experienced pregnancy discrimination or have been denied reasonable accommodations can speak to a Dallas Employment Lawyer about what actions can be taken before or after the new law has taken effect.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: The EEOC is tasked with the enforcement of many of the laws that ensure a fair and equitable workplace. As such, the role of who is at the helm of the agency is not small matter. Recently, Karla Gilbride has been appointed as the new General Counsel for the EEOC. One look at her track record indicates that this is great news for employees.

The recent confirmation of Karla Gilbride as the new General Counsel for the U.S. Equal Employment Opportunity Commission (EEOC) marks a critical turning point in the pursuit of safeguarding workers’ rights and combating discrimination in the workplace. As a prominent civil rights litigator, Gilbride’s track record and expertise exemplify her capability to steer the EEOC’s litigation efforts with integrity and proficiency.

With a remarkable history of representing workers in pivotal legal battles, Gilbride has been a strong advocate for employee rights, consistently securing victories in cases concerning workplace discrimination, unsafe working conditions, and arbitration issues. Notably, her success before the US Supreme Court in ensuring the protection of an employee’s right to pursue overtime claims signifies her unwavering commitment to upholding workers’ interests.

Furthermore, her recent triumph against Amazon Inc. in challenging hazardous working conditions during the Covid-19 pandemic highlights her dedication to ensuring a safe and equitable work environment for employees, especially during unprecedented crises. Thus it is more than fair to state that Gilbride will join the agency with a deep understanding of the laws the agency is tasked with enforcing. 

But, beyond the courtroom, Gilbride has also been a champion of worker rights. Gilbride’s involvement with the Civil Rights Education and Enforcement Center and her role in enhancing accessibility to the civil justice system for incarcerated individuals and their families showcase her dedication to promoting inclusive legal practices. Her advocacy for intersectional disability justice further underscores her commitment to ensuring equal opportunities and rights for all, regardless of background or circumstance.

At this juncture, Gilbride’s appointment will undoubtedly provide a much-needed breath of fresh air to the agency. The appointment of Gilbride is particularly crucial in the context of recent challenges to the EEOC’s authority, including attempts to limit the General Counsel’s power to initiate discrimination lawsuits without full commissioner approval. Gilbride’s extensive experience and deep understanding of the intricacies of labor law suggest a promising reversal of the constraints placed on the EEOC during the previous administration. With her at the helm, the EEOC is poised to regain its capacity to effectively address workplace discrimination, ensure fair treatment, and advance the cause of diversity and inclusion.

Furthermore, given the EEOC’s new strategic enforcement plan, it appears that her appointment will fit perfectly. In fact, Gilbride’s confirmation aligns seamlessly with the EEOC’s recent strategic enforcement plan, focusing on emerging issues such as AI-generated bias, workplace harassment, and pregnancy discrimination. Her expertise and commitment to combating discriminatory practices, coupled with the agency’s strengthened focus, will undoubtedly fortify the EEOC’s efforts in promoting fair and equitable employment practices across various industries.

As the EEOC charts a new course towards more inclusive and equitable workplaces, Karla Gilbride’s appointment as the new General Counsel signals that the EEOC may be ready to take the helm in enforcement the laws that are incredibly important to all employees nationwide. With her proven dedication to upholding civil rights, empowering marginalized communities, and advancing the cause of justice, the EEOC stands poised to usher in a new era of progressive enforcement and policy direction, ensuring that the fundamental rights of all employees are protected and upheld.

Harjeen Zibari Trial Attorney

In lots of ways, Googling legal terms can be like Googling medical terms. You might get an amalgamation of concepts that might not make a whole lot of sense when put together. Therefore, there’s lots of information out there that isn’t legally inaccurate, but needs to be explained by an attorney with respect to your specific circumstances to create an accurate picture. So, sometimes clients will come to us with an idea of what they think their claim might be, but not have the exact verbiage correct. And that’s okay! That’s what we as lawyers are here for: to provide explanations to our clients and help them navigate the daunting American legal system. 

A lot of our practice as employment attorneys revolves around the ending of an employment relationship. This usually falls in to two categories: wrongful termination or constructive discharge. But they are not interchangeable terms, and it is important to understand that when embarking on an employment case. 

Wrongful termination – for cases where the employee was fired.

Wrongful termination occurs when an employer fires an employee in violation of the law or employment contract. It means that the employer has taken an unlawful action in ending the employment relationship. Texas is an at-will state, which means that the employment relationship can be ended at any time for any reason. However, it cannot be for an unlawful reason—giving rise to an unlawful termination claim.

Wrongful termination can be based on various factors, including discrimination (race, sex, age, religion, etc.), retaliation (for engaging in legally protected activities like reporting harassment or safety concerns), or breach of an employment contract (as opposed to an at-will employment agreement).

If an employee believes they were wrongfully terminated, they may have grounds to file a lawsuit against their former employer to seek damages or reinstatement.

However, the legal claim itself won’t be for wrongful termination. The claim would be brought under the statute that defines the unlawful basis for termination. For example, in a case where someone was fired for disclosing their pregnancy to their employer and requesting leave, the claims would technically be brought as a sex discrimination and/or retaliation claim in violation of Title VII of the Civil Rights Act of 1964. The idea is still the same, though: the case is about a wrongful termination in violation of someone’s legally-protected rights.

Constructive Discharge – for cases where the employee quit.

Constructive discharge, on the other hand, is a situation where an employee resigns from their job because the working conditions have become so intolerable that they feel they have no other choice but to quit.

In Texas, as in many other jurisdictions, constructive discharge is treated similarly to wrongful termination in terms of potential legal remedies. If an employee can prove that they were constructively discharged due to unlawful or intolerable working conditions (such as harassment, discrimination, or a hostile work environment), they may have grounds for a lawsuit against their employer.

A typical instance of constructive discharge is when the employee is faced with an unacceptable decision: quit or be fired. In either instance, you were going to have to leave the workplace. However, the reasons for being offered that inacceptable ultimatum must still be tied to a legally protected avenue (i.e., your status in a protected category or engaging in protected activity). 

However, the threshold to prove constructive discharge is much higher than to prove wrongful termination. Put very delicately, constructive discharge cases are difficult. To establish a constructive discharge claim, the employee typically needs to show that the employer’s actions or conditions were severe enough that a reasonable person in their situation would have felt compelled to resign. This is not whether or not the person who quit thought their decision to do so was reasonable by a subjective measure, but an objective evaluation regarding the decision to quit under those circumstances. Texas (and the Fifth Circuit) are hostile jurisdictions to constructive discharge claims. 

These are all very short and simple explanations. As with everything in the law, there are more nuances to these concepts, how each may be applied depends on the facts of each case. (I know, a lawyer saying it depends, how groundbreaking.) 

Therefore, if you are still employed but are being subjected to discrimination and retaliation in the workplace, it is important to consult with an employment attorney to discuss your options going forward prior to resigning so you may make an informed decision on how to proceed. 

             If you believe you have been wrongfully terminated, or wonder if your potential resignation would be considered a constructive discharge, contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today. 


Colin Walsh
Texas Employer Lawyer Colin Walsh

On August 18, 2023, the Fifth Circuit issued an en banc opinion in Hamilton v. Dallas County, No. 21-10133 that overturned decades old judge-made law limiting actionable claims under Title VII.  Let’s take a look.

What is Hamilton about?  Hamilton involves how the Dallas County Sheriff’s office schedules time off for male and female detentions service officers.  Specifically, according to the county’s policy, detention service officers are allowed two days off per week.  However, female officers may not take those two days over the weekend, while male officers can.  In other words, female officers are not allowed to ever have a weekend off.  However, pay was not affected and the female officers still received two days off just like the men each week.  Nine female officers sued.  Importantly, the county admitted that the scheduling policy was sex-based.  The district court granted summary judgment in favor of the county based on existing precedent.  The three-judge Fifth Circuit panel affirmed summary judgment on the same basis.  The case was then taken up by the court en banc.      

So, what is an en banc opinion and how is it different than other opinions?  Good question.  Normally, appellate opinions are issued by three-judge panels.  These panels are not permitted to overturn circuit precedent or other panel decisions.  In Hamilton, the original three-judge noted this fact when they ruled in favor of Dallas County, saying that precedent bound them to find that the adverse action alleged was not an “ultimate employment decision” and therefore, under Circuit precedent not actionable under Title VII’s discrimination provisions.  The three-judge panel’s opinion then actually urged the full Fifth Circuit to hear the case en banc.  What that means is that the three-judge panel asked for all active judges on the court to take a look at the case.  The reason the panel did that is because the court, sitting en banc, can overturn precedent and reverse prior panel decisions.  The Fifth Circuit agreed to hear the case en banc and that is how we got the opinion on August 18, 2023. 

Ah, you say, well, what was the law before Hamilton?  For almost thirty years, in the Fifth Circuit, a Title VII discrimination claim was only actionable is it was considered an “ultimate employment decision.”  Generally, ultimate employment decisions only included actions that affected pay or benefits, such as hiring, granting leave, termination, promotion, or compensation.  If it wasn’t one of those types of actions, then a plaintiff had no case unless the plaintiff could show a hostile environment based on a protected characteristic that included severe or pervasive conduct, which is a whole other can of worms I won’t get into here.  As the Fifth Circuit points out in Hamilton, the requirement of an ultimate employment decision leaves a lot of unactionable discrimination for employers to engage in based on a protected characteristic.    

And what did Hamilton change?  Hamilton completely jettisons the “ultimate employment decision” requirement as atextual and against the policies of Title VII.  The Fifth Circuit expressly rejects a requirement that an adverse action have an economic effect on a plaintiff at the time or even that the discrimination lead to an economic effect on the plaintiff.  Instead, the Fifth Circuit hews to the text of the statute and states, “a plaintiff need only show that she was discriminated against because of a protected characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges of employment.’”  That means things like shift changes, transfers, and many other discriminatory actions that were previously not actionable may now be asserted under Title VII.  To be clear, this does not mean that there is no minimum level of actionable harm.  The Fifth Circuit explicitly says de minimis harms are not actionable.  However, the Court does not state exactly what constitutes de minimis harm and expressly reserves that determination for future cases.

Finally, the decision brings the Fifth Circuit in line with the Sixth Circuit, which reached the same conclusion in the race discrimination case, Threat v. City of Cleveland, 6 F. 4th 672(6th Cir. 2021).

If you believe you have been discriminated against based on a protected characteristic, you should consider consulting an attorney to discuss potential options.  The attorneys at Wiley Walsh, P.C. have extensive experience representing individuals with claims under Title VII.  You can book a consultation at our website www.wileywalsh.com or by calling 512-271-5527.