Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: On January 5, 2023 the Federal Trade Commission has published a proposed rule that would ban employers from forcing their employees to sign non-compete agreements. While, this is still only a proposed rule, it signals a growing concern over the harmful effects that non-competes have on the American workforce. 

On January 5, 2023, the Federal Trade Commission has published a proposed regulation that would in essence bring non-competes to an end. Under this new law an employer would be prohibited from entering into an agreement with its workers “that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” Specifically, this proposed law would prohibit employers from entering or even attempting to enter into non-compete agreements, maintaining a non-compete agreement, or representing to a worker that they are subject to a non-compete agreement unless it has a good faith basis to do so. Of pinnacle importance is the fact that this proposed law has a retroactive effect that would mandate that employers rescind any non-competes it may have with its work force within a certain period of time. 

Moreover, in order to ensure that an employer would not be able to bypass this new law by simply pigeonholing a non-compete into another provision of their agreement, the FTC has proposed the adoption of a “functional test.” In essence this test would measure whether the provision would prevent a worker from seeking employment elsewhere after they leave their current employer. The proposed law outlined two examples in which this may occur. First, a non-disclosure agreement that is drafted in such a way that it would preclude a worker from seeking employment in the same field, Second, a contractual term in which a worker is required to pay for training costs if the worker’s employment is terminated before a specific period of time. 

Lastly, this proposed law would preempt any state laws, unless they give greater protections against non-compete clauses. This means that states such as Texas, which allow non-competes, would be unable to continue with the practice. 

In short, this is a fantastic step in the right direction. It is estimated that roughly one in five American workers are subject to a non-compete. This is despite the fact that some states like California have long banned their implementation. Additionally, the FTC has estimated that passing this proposed law would increase wages by nearly $300 billion dollars a year and expand the career opportunities for about 30 million Americans. 

As an attorney that has defended many employees from alleged breaches of non-competes this is a welcomes sight. Often times, non-competes are in place merely to stifle the mobility of the workers. In Texas, these provisions are often times written in an overbroad manner that basically freezes workers out of particular industry. While these sorts of clauses are not allowed under the Texas Business Code, since Texas law mandates that court shall rewrite the agreements for the employers if they are deemed invalid, employers have little incentive to crafting narrowly tailored non-competes. Moreover, since the threat of litigation and forcing a worker to pay thousands of dollars in legal fees to defend a case is always present, it could be a situation that the employer can have their way without winning in court. 

At the moment though, it is far too early to celebrate this development. The FTC has merely proposed this rule, and it has opened a 60-day period where it seeks public comments on this proposed rule. Already many businesses have begun flooding the FTC with their disdain over this proposed rule, and a full-fledged effort to crush it have started. This is not even taking into consideration the legal challenges that will occur if this proposed rule passes. 

There are many times where on is able to express and have their voices heard like with voting. Here, we are presented with another such example. In order to keep striding towards a more equitable workplace, these types of protection are invaluable. That is why I believe that is important to have your voices heard and comment in favor of this proposed law. This can be done online at https://www.regulations.gov/docket/FTC-2023-0007/document.

Finally, at this moment, non-competes in Texas are still valid and enforceable. If you have any questions as to what your non-compete means, it is important to contact an attorney that specializes in employment law. Here, at Wiley Walsh, P.C. we specialize in labor and employment law. Feel free to contact us for a consultation. 

Harjeen Zibari Trial Attorney

When you leave a job, there are some obvious things you take with you: your mug in the break room, your family photos on your desk, your good pens that you bought from home that everyone likes to steal. There are some things you usually need to leave: your company computer, your access badge, your office phone. However, some people might think that they can take the actual work product that they created for their job while employed. This is where you can enter some really murky territory.

This blog will explore employee work product, which is a concept within employment law. Work product is not to be confused with Intellectual Property, which is a separate area of law. 

Put simply, work product is anything that an employee creates for their employer during the course of employment. The default rule, absent some other provision in an employment contract, is that your employer owns whatever work product you created for them while employed. For example, if you wrote a really stellar, lengthy, and involved report while working somewhere, that employer owns that report, even after you leave. You might still use it as a writing sample and boast about it on your resume, but you should not delete the file from the company’s database or transfer the credits to yourself. If you work in product development and created the recipe for your employer’s best-selling menu item, your employer owns the recipe to that item, not you. Again, you might boast going forward that you came up with and developed that recipe, but it still belongs to your employer. They will continue to offer that product after you leave and use the recipe that you created even in your absence. 

What about work product created beyond the scope of your job duties? Say you were voluntold to create a handbook for a program you don’t run because the company wants it to be more organized. Even if you create something beyond the scope of your job duties, if you created it for your employer while employed, it belongs to them. 

But what about the things that have nothing to do with your employer? Say you’re a talented seamstress and work for a clothing brand to create their garments. And because you’re so talented, you make your own clothes at home outside of work hours using your own sewing machine. Your personal items created at home on your personal equipment belong to you, even if it requires skill similar to the skills you use at work. But an employer very well may try to claim the opposite, especially with jobs that don’t have defined work hours, an office away from home, or separate equipment provided by the employer. It is worth consulting with an attorney to protect yourself in a scenario like this. 

Work product can be a really frustrating concept. After all, why should someone else own the things you’ve worked so hard on? The good news is work product provisions can be negotiable—the above just explains general default rules. Also, real life is rarely as concrete as the examples given above.  

If you are in a work product dispute with an employer, or otherwise want to protect your work product, schedule a consultation with one of our talented Texas Employment Attorneys today. Or, if you have received a contract from a potential employer and want to know how that contract may govern any potential work product you create, schedule a Document Review.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

We do the work because we love the work.  We chose to become plaintiff’s employment lawyers because we want to fight to protect the rights of hardworking individuals.  We have ups and downs. There will be great successes and victories.  On the flip side, in this fight, we will also take some tough punches and hard falls.  However, each day we get up again, ready to fight another day. It’s never-ending. There will always be employers that will violate the law. There will always be employees that have been unlawfully wronged. There will always be defense attorneys representing companies and their interests at the expense of employees.  This is why we continue to fight.  

This fight is not an easy one. Plaintiff’s employment attorneys see and hear the worst of the worst. We hear the sordid details of hostile workplace experiences. We witness the financial hardships created by loss of employment. We hear the heartbreaking stories depicting the emotional impact an employment dispute has taken on a person. We even hear stories of strained marriages and families breaking up in the midst of—and because of—the stresses caused by these disputes. We carry this heavy burden with not only one client, but with multiple clients. We carry this burden because these are the details we must know to best represent our clients.

In addition to the time we spend with clients learning about their cases and the damages caused, we have calls to make and answer, disputes with opposing counsel, matters to research, letters to write, motions and briefs to draft and respond to, deadlines to meet, hearings and trials to prepare for, and courts to appear in.  

In all of this, we must acknowledge that as attorneys we are still people.  Attorneys are not superheroes with endless reserves of a superpower we’ll just call “legal fortitude.”  

It is no secret that the daily grind for an attorney can take its toll on a person.  One of the most commonly known problems existing for practicing attorneys is alcohol abuse. However, attorneys must also be mindful of signs pointing toward depression, anxiety, and even drug dependency.

The pressures placed on practicing attorneys make it important to remember and practice self-care. There must be some modicum of balance between one’s life inside the office and that outside the office. There may also be the need to seek the services of qualified professionals. Professional services may include rehabilitation and addiction treatment, meeting with a psychologist or therapist, or even retaining a professional that assists with time management and organization.  If matters have not progressed to the point of seeking the professional services of a psychologist or therapist, making other adjustments may be beneficial in creating balance and reducing stress. These changes could be committing to a developing a habit of a regular workout schedule, disconnecting from work by taking classes or participating in activities or hobbies that that are not work related, or spending quality time with family and friends.  

The key take away is that attorneys are not superheroes. If you, or a lawyer you know, are in need of assistance there are services available. One resource available to lawyers in Texas is the Texas Lawyers’ Assistance Program (TLAP).  TLAP’s mission is to provide counseling, referrals to appropriate resources and professionals, and facilitate contacts with volunteers trained in providing peer assistance when appropriate.

We are not meant to operate as attorneys 24 hours a day, 7 days a week.  Just like we tell our clients, you are more than just your job. There is a difference between who we are and what we do.  What we do – practice law.  Who we are – mothers, fathers, daughters, brothers, hospital volunteers, painters, runners, dancers, theatregoers, troupe leaders, travelers and much more. We are meant to have balance and structure; we are meant to be more than one thing. This is how we stay healthy mentally and physically and are able to continue the work that we do and best help clients.  Sometimes attorneys do need a little help.  Just like anyone else. 

We are employment attorneys taking care of ourselves so that we may continue to care for our clients. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

For many, the World Cup is the sporting event of the decade, and for good reason. It is a moment where countries and cultures from around the world gather for a singular purpose: to watch soccer. Already, the current World Cup has had plenty of drama: Japan defeating two World Cup champions only to be knocked out in penalty kicks; Morocco defeating Spain to be the only African team in the Quarterfinals; and Mexico not qualifying for the Knockout Rounds for the first time since 1978. Despite the dramatics, however, this World Cup differs from the ones before it, primarily due to the controversy that has surrounded its location: Qatar.

As many may be aware, Qatar won the bid for the 2022 World Cup. FIFA had already been in deep controversy due to the location of the 2018 World Cup (Russia). This year, however, there has been a massive and blatant affront on human rights. The working conditions within Qatar to build the stadiums were abhorrent. Migrant workers who primarily constructed the stadiums for the World Cup endured appalling labor violations that should not be overlooked. These violations included, but are not limited too, national origin discrimination, unpaid wages, and illegal recruitment practices.

Indeed, many of the migrant workers interviewed by Equidem, a human rights and labor rights charity, claimed that they faced significant exploitation, discrimination (primarily national origin-based), and abuse (many reported physical, mental, and verbal abuse). Many also reported unpaid wages, wages lower than what was originally promised, and failure to pay for overtime or end-of-service benefits. There was indeed a bevy of human rights violations that went into constructing the stadiums for the 2022 World Cup.

Though Texas’ following of at-will employment is draconian, employees do have protections in place to ensure that they do not experience the actions seen in Qatar. To begin, if one were to experience discrimination in the workplace (whether national origin, race, sex, disability, or age), then one would be protected under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, or the Age Discrimination in Employment Act. If one is not paid the wages to which they are entitled to, then one can file a claim under the Texas Payday Law. Similarly, if one is an hourly employee and they are not paid for the work they committed in overtime, then one is able to file a claim under the Fair Labor Standards Act. Lastly, if one experiences a workplace hazard, then they can file a claim with the Occupational Safety and Hazard Administration (“OSHA”). Once can also file a Whistleblower claim with OSHA if there is a workplace hazard, they report it, and are subsequently terminated.
The World Cup is an extraordinary event that one should feel free to enjoy and participate in. With that being said, the infractions and human rights violations that occurred in Qatar should not be ignored and should be acknowledged and addressed. One should have the right to work in an environment that is free of discrimination and danger. If you find yourself in such a situation where you feel your rights are being violated at the workplace, then it would be prudent to consult with an attorney and see what, if any, options you may have.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

We are in the midst of the holiday season. As the holidays roll by, businesses everywhere are having their year-end holiday parties. Millions of people everywhere are going to restaurants, bars, and banquet halls to mix and mingle, to celebrate victories, and to close out the year. With these celebrations, often times there’s alcohol being served and consumed.

Some people dread the holiday office parties: the socializing, the drinking, and dancing.  Others love the holiday office parties: the socializing, the drinking, and dancing. No matter the camp in which an employee resides, it is the hope that employees are attending these parties responsibly. After all, the holiday office party is still a work event.  

The office party is not a place for employees to forget the rules against unlawful discrimination and harassment. The office party is not a free-for-all.  It is not “Vegas Baby,” where “everything that happens in Vegas stays in Vegas.” Instead, the aftermath of an office holiday party gone wrong can come with significant consequences, giving new meaning to “out with old, in with the new” in 2023.  

A bad holiday party when exiting 2022, can mean holiday party liability when entering 2023.

Some people handle their liquor well.  They drink responsibly. Others may not do so well with spirits. They may overindulge leading them to behave in ways they should not when they are around their coworkers.  Employers take this risk when gathering large groups of people.  Risks are multiplied when those large groups are provided alcohol.  Controlling employee behavior amongst a smaller group of employees may be much simpler and less risky that an event where hundreds of employees are in attendance.  

Employees should know that whether it is in the office or outside the office, they should not be made to suffer unlawful discrimination or harassment. 

The holiday party may be a time where some employees start speaking about religious beliefs and practices. An employee or group of employees may then erroneously think it is okay to criticize someone else’s religious beliefs or treat another employee differently because of their religion. 

The holiday party and alcohol may give an employee courage to say every discriminatory thing they’ve thought about other races, religions, women, or a subordinate to whom they secretly didn’t want to provide a reasonable accommodation for a disability.

The holiday party and alcohol may result in employees forgetting important things like laws against sexual harassment and the consent requirement. There may be a supervisor flirting with his or her subordinate, another employee groping a team 

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos


 With Layoffs on the rise, it has put a palpable amount of pressure on workers around the country. Turning a season of cheer into one of stress and uncertainty. There are many laws that are in play that govern how an employer must go about a mass layoff. In this blog, I would like to go over a few of these laws. 


It seems as if mass layoffs have been predominating on the news recently. By way of example, Meta has announced that it would be reducing its staff by about 13%, and let’s not forget that Twitter let go of approximately half of its staff. But they are not alone. Indeed, various major companies such as Peleton, Seagate, Go-Puff, Snap, and Microsoft, have all announced similar reductions. If you have been part of these unfortunate cutbacks, the very first thing you need to do is make sure that your rights were not violated in the process. 

 The first law that I would like to discuss is the Worker Adjustment and Retraining Notification Act (“WARN Act”). Generally speaking, this applies to companies that have employed 100 or more employees, who have worked there more than six months, in the past 12 months. If the requirements of the WARN Act are triggered, then the employer must provide each covered employee with at least 60-day notice of when the layoff is set to occur. A failure to do so, may result in stiff penalties against the employer, and it may make you entitled to receive the wages you would have received in that 60-day period.  Now, the tricky issue is that the WARN Act’s requirements are only triggered if certain elements are present. 

 Second, there is the Older Workers Benefit Protection Act (“OWBPA”). As an amendment to the Age Discrimination in Employment Act (“ADEA”) the OWBPA applies to all employers that employ 20 or more workers. If your employer is doing a group layoff, as defined, then it must provide workers over the age of 40 with certain protections. If there is a severance agreement, that agreement must contain: (1) a provision allowing the worker at least 45 days to consider the offer; (2) a benefit to which the worker is not already entitled to; and (3) a provision that allows that worker at least seven days to revoke their consent from the agreement. Moreover, the employer must also provide a list of who made the decision to terminate the employees, the factors used in determining who would be laid off, and a list of the individuals who were selected and not selected for the reduction with their position and age. A failure to adhere to these requirements may mean that any waiver found claims found within the severance agreement is void.   

 Third, one cannot forget about the promises that have already been made by the employer. Examples of this include severance obligations made in an employment contract. If an employer does not honor its promises it could lead to a breach of contract claim or one of several common law causes of actions. These causes of action can include promissory estoppel, fraud, quantum merit, and more. 

 Ultimately, when it comes to how a layoff situation will impact you it can be a daunting task. There are various laws at play that may be applicable in your situation. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys.


Harjeen Zibari Trial Attorney

The World Cup is always an exciting time; it offers us an opportunity to come together and watch nations compete to see who reigns supreme in the world’s most popular sport. I don’t want to brag, but I played soccer for 18 years, so I get extra excited for the World Cup. (Now, whether I played well is a whole other story, and that’s not the topic of this blog.)

Although this is the Men’s World Cup, issues regarding the disparate treatment of the U.S. Women’s National Team (USWNT) linger in the background. 

You might know that the USWNT is one of the best in the world, with the best record of any international women’s soccer team. In fact, the entire time it’s existed, the USWNT has never been ranked lower than second internationally. The team has won the Women’s World Cup four times (in 1991, 1999, 2015, and, most recently, in 2019), and also has four Olympic Gold Medals (1996, 2004, 2008, and 2012). In comparison, the U.S. Men’s National Team (USMNT) is currently ranked 16th internationally, and the highest it’s ever been is 4th. The U.S. Men’s Team has never won the World Cup or the Olympics, although to its credit, the team has won the CONCACAF (Confederation of North, Central America and Caribbean Association Football) Championship three times in a row.

 However, despite the U.S. Women’s Team’s successes, they suffered from a staggering pay gap and differences between salary structures that were the subject of controversy for years. Most notably, the men were paid handsomely per game appearance, meaning that if they qualified and advanced in tournaments, they would get paid more. The women, on the other hand, were just paid straight salaries, and did not get credit for how far they consistently advanced in tournaments. And when they did win tournaments, the prize pools for women’s leagues are notoriously smaller. 

 However, in May of this year, the United States Soccer Federation, the United States Women’s National Team Players Association, and the United States National Soccer Team Players Association entered into a collective bargaining agreement (CBA) to finally offer equal pay for equal work. This CBA came on the heels of several USWNT stars, including Megan Rapinoe and Alex Morgan, reaching a $24 million settlement of their own claims against the U.S. Soccer Federation regarding the disparate pay between men and women.

 The CBA ensures, amongst other things, that the Men and Women’s Teams will offer the same base pay with the same bonuses per appearances. Also, the teams will split commercial revenue share 50/50, meaning they share the revenue from ticket sales, sponsorships, and ads. Additionally, the teams will pool the prize money earned from their respective World Cup appearances. This is particularly topical because the men just won an estimated $13 million for finishing at the Knockout Stage in Qatar. 

 The story of soccer players in the United States is bittersweet: it took years of the women advocating for themselves to finally reach equality, even as the absolute best in their (literal) field. However, this Collective Bargaining Agreement is the first of its kind and has hopefully set a precedent between men and women athletes nationwide—maybe even beyond. It also shows the power of Collective Bargaining Agreements, and how much of a difference workers can make when they advocate together and for each other. 

 But you don’t have to be a gold medalist or a world-record setter to be worthy of equal pay. You don’t even need to be a part of a union. Federal law acknowledges that employees in the same workplace must be paid substantially the same for the same work, regardless of gender. The Equal Pay Act of 1963 provides protections for you in the workplace, and acknowledges various forms of compensation, not just salaries. Overtime pay, bonuses, insurance, vacation and holiday pay, benefits, and other costs covered by your employer must be equal amongst employees in similar positions, regardless of your gender identity. 

 If you suspect are being paid less than others in your workplace due to your gender, contact our talented Texas Employment Lawyers today.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: Despite the fact that we have all grown up with the ideal that everyone should get their day in court, the sad reality is that fewer and fewer cases are going to trial. In large part this is because the rise of motions for summary judgment and other dispositive motions. 

There are few ideas that are as cornerstone to our legal system than one’s ability to get their day in court. Despite this notion, the ability of a plaintiff to get their day in court is becoming rarer and rarer each year. By way of example, according to an American Bar Association study only about 0.8 percent of cases were decided by a jury trial in 2013. By now that number may very well by lower. 

 While the study outlined various theories of why this may be the case, one of the biggest obstacles outlined in the study was the tendency of cases to be disposed by a dispositive motion. In fact, the study stated that motions for summary judgment alone, one of the various types of dispositive motions, are the procedural vehicle that dispose of about 20 percent of cases filed in federal court. That is why I would like to focus on motions of summary judgment for the purposes of this blog.

Broadly speaking, a motion for summary judgment is a party asking a judge to get rid of a case because no reasonable jury could find in the favor of the other party. At this phase of the inquiry, the judge is not allowed to weigh the evidence. In fact, in reviewing entry of summary judgment, the judge considers the evidence presented in the motion and response in the light most favorable to the party resisting the motion. Moreover, the judge must credit evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. In short, the judge must take as true all evidence favorable to the party resisting the motion for summary judgment.

While someone reading the above cited standard would think that these types of motions are rarely granted, the numbers do not lie. The fact of the matter is that these motions are growing in popularity and are being filed more and more by defendants in employment cases. As such, they are an incredible danger to getting your day in court.

In order to best protect your case from these types of motions there are steps you can take. The first is simple. Act fast. Many of the deadlines that are the subject of motions for summary judgment such as statutes of limitations are rather short. That is why if you believe you have a case, you should contact an attorney as soon as you can. Second, gather all the documents that you believe may be helpful for your case so that you are able to help your attorney put their best foot forward. Third, it is imperative to seek out an attorney that specializes in labor and employment law. This is because each type of law has its own type of quirks that can change what is the best way to approach matters. Probably, the best way one can see how important this small step is, is by taking note who employers are retaining to represent them in employment disputes. In large part, employers are retaining attorneys that specialize in labor and employment law. 

 Here, at Wiley Walsh, P.C. we specialize in labor and employment law. More importantly, we only represent workers. We are the type of law firm with the knowledge and skills to be a zealous advocate so that you won’t become part of a statistic. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that this type of cases demand. Feel free to contact us for a consultation. 



Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When workers are considering employment, they often take into consideration the benefits and perks of a job. Whether these perks are big or small, they add value to one’s employment. They even influence one’s quality of life outside of work. Some employees may take things for granted, not realizing that a benefit that they enjoy is really a perk freely given by the employer. They may mistakenly think that a perk is protected by some law when it is in fact not. 

During the holiday season a perk that some employees enjoy is overtime (bonus) pay when they work on the holidays. A perk that other employees may enjoy might be paid holidays off. Yes, these are most assuredly perks, as the law does not require that employers provide either of these benefits to their employees.

I remember my first job and working through the holidays, including Thanksgiving and Christmas Eve. My manager would always ask if there were volunteers for holidays. There were always volunteers. Double time-and-a-half was good motivation. This was even better than the typical overtime pay! However, workers should know that this was not required. 

Overtime pay on holidays is not required unless those additional hours place a non-exempt employee (employees entitled to overtime pay under the Fair Labor Standards Act) at more than 40 hours in a workweek. But, as a general rule, employees should know that there are no Texas laws or federal laws that require that employees receive overtime or any other special pay merely for working on a holiday. Yes, an employer can require that their employees work on Thanksgiving or Christmas Eve at their regular hourly rate.    

Similar to the lack of any requirement that an employer provide additional pay for working on holidays, there is nothing in Texas or federal laws that requires an employer pay employees for time off given on the holidays. For a non-exempt, hourly employee, this means that an employer can give an employee the holiday off, or even be closed on Thanksgiving, depriving the employee of a workday, and there is nothing in the law that requires the employer to pay the employee for that holiday. 

For exempt, salaried employees, the rules are different, but they too require an understanding of the law. Exempt employees must be paid their full weekly salary if they worked any hours during the holiday week when their employer has made the choice to close for the holiday (e.g., Thanksgiving).  However, there is nothing in the law that even requires an employer to observe any holidays. So, if the employer is open for business and requires that exempt employees work, they are required to work. This also means that an exempt employee, depending on the nature of their work, may be required to work more than 40 hours in a workweek during the holidays with no additional compensation. 

There are very few laws that provide protections and benefits for employees. However, there are employers out there willing to provide additional compensation to those employees sacrificing time with family or loved ones to work on the holidays, and other employers that are able to provide paid holidays off due to the nature of their business operations. Employees should know that these employers do so without legal obligation. Nonetheless, if you are an exempt employee being docked pay when your employer closes for the holidays, or a non-exempt employee working more than 40 hours per week without receiving overtime pay during the holiday season, our employment lawyers are available for consultation. Happy holidays and thank you to all the employers that try to do more for their employees during the holiday season than what is required by law.   

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

X, a dedicated and hard worker, asks her boss for a raise. X, on more than one occasion, has boasted of never taking paid time off, of working overtime, and of winning several accolades. X, for all intents and purposes, has earned this. X confidently struts into her boss’s well-kept office, warmly greets her, and assertively (but also politely) asks her for a raise. Her smile fading, X’s boss strategically dodges X’s question and only offers to “touch base” with her about it soon. The next day, X receives a delicately worded email from the company’s Human Resources representative, expressing, in no uncertain terms, that X is fired.

Let us now turn our attention to Y. Y’s colleagues would not describe him as zealous, dutiful, or even necessary, but only as sufficient for the company and its operations. Y has lived contentedly in mediocrity and has no intention of leaving its bounds anytime soon. However, during one of his rare productive spells, Y overhears a co-worker make a racist statement. Y, mustering the remains of his productivity, reports it to his manager. The next day, Y receives a similarly delicately worded letter from HR informing him of his termination.

There is no question that both X and Y experienced retaliation. However, only one of the unfortunate workers experienced illegal retaliation. Y, the half-hearted employee, is the individual worthy of legal protections because Y explicitly engaged in protected activity. Protected activities are actions employees may engage in without fear of retaliation from supervisors or managers. Y’s protected activity was his complaint of race discrimination because it involved a protected characteristic (viz., race). Race, sex, disability, and age are all protected characteristics that cannot be subjected to discrimination. X’s complaint involved no protected activity; it did not mention a protected characteristic nor did it mention a hazardous work environment in any discernable way. X wanted a raise, while Y needed protection.

The employer, in a sense, is the master of their own corporate universe. The employer gets to decide how their office is run, who works there, how policies are set up, how investigations are handled, how employees are treated, who employees work with, and what they pay you, among very many other things. By signing your employment agreement, you are willingly entering into that universe and becoming a denizen of it, meaning that you must abide by the rules and procedures that are set in place; corporate policy becomes your stone tablet. And though the employer is the lord of this paper-filled, fluorescent-lit kingdom, there are still shackles in place. Namely, the employer must abide by the law and provide protections against unlawful discrimination, unlawful retaliation, and unlawful workplace hazards. The rest, for better or for worse, is fair game to the employer. 

Annoyances at the workplace are common and often find a way to slither under our skin. However, the law is not a remedy to treat annoyances. Rather, it is a barrier to protect against unlawful discrimination and retaliation. Once that barrier is breached, it is the duty of the attorney to not only repair it, but ensure that those who shattered it are held accountable to the fullest extent. It is important to recognize the distinction between a want and a need because the former is typically outside of the realm of the illegal. One may not want to work with the noisome colleague nor want a small office nor want to be subjected to gossip, but, in entering into a new workplace, one always faces (and should expect) the risk that they may be subjected to such annoyances. On the other hand, one needs protection from discrimination and needs accommodations for a disability and needs to be safe in the workplace, and there is no employment agreement in the county that can provide otherwise. If you find yourself in such a situation where you cannot determine whether your issue is a need or a want, then it would be wise to consult with an attorney and see what, if any, options you may have.