Experienced Team of Employment Law Lawyers
What Is Employment Law?
Employment relationships and workplace conduct are governed by both state and federal law. Our cases often involve allegations of employment discrimination or harassment (gender, sexual orientation, race, national origin, age, disability, and other protected status); accusations of wrongful termination; wage and hour disputes; enforcement of employment contracts or restrictions such as non-compete and non-solicitation provisions; and a wide variety of other complex issues faced by employees and employers. Our firm also has significant experience in dealing with the Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), and other state and federal governmental agencies to resolve matters of regulatory compliance. Featured below are some common legal questions and concerns faced by employers.
- Defending Texas Employers
Many employers are shocked and feel blackmailed when they learn that a former employee has taken steps to accuse them of discrimination, retaliation, harassment, a hostile work environment, or wrongful termination. Thousands of lawsuits are filed each year against business owners by disgruntled former employees who seek to damage their former employer. Needless to say, a great number of these lawsuits are considered frivolous lawsuits that have no merit. Even so, it is important to consult with an experienced employment law attorney in the event you find yourself having to defend against an employment-related claim.
Your Rights as an Employer
Many states, like Texas, are employment-at-will jurisdictions. Accordingly, employers have the right to make decisions concerning hiring and termination of employees for any reason (with or without cause) as long as those decisions are not discriminatory or otherwise unlawful. You as an employer should not have to fear unwarranted litigation simply for taking appropriate disciplinary action against an unproductive employee for the betterment of your business. Unfortunately, such litigation is common, and courts have the difficult task of separating legitimate cases from frivolous ones.
What to Do When an Employee Threatens Litigation?
Experienced employment lawyers strongly recommend taking immediate measures when an employee or former employee threatens filing a lawsuit. Involving legal counsel as soon as possible is the best first step. For example, an experienced attorney will tell you that document preservation notices need to be circulated to all pertinent personnel in order to secure relevant evidence in a timely manner. It is easier and more cost-effective to prepare for a potential case at an early stage rather than waiting until so much time has elapsed that evidence is no longer available or witness memories have faded. Oftentimes, escalation towards litigation can be avoided through effective negotiations. On the other hand, if you are forced to gear up for battle, you will want to ensure that you have collected everything you need to prepare a successful defense.
How Will an Experienced Employment Lawyer Handle the Situation?
Depending on the stage of the case and the merits of the employee’s complaint, our employment lawyers can seek a number of remedies when defending employers against former employees.
- Negotiation and Resolution
- Summary Judgment
While negotiation and mediation assume that amicable resolution of the case is still possible, a counter-lawsuit or a motion for summary judgment are remedies in active litigations to force early dismissal or otherwise bring early resolution to the case. In this context, a motion for summary judgment means a request to the court that the employee’s case is so meritless that the law does not support the employee’s undisputed allegations. Of course, if early resolution is not possible, our team of employment lawyers are experienced trial attorneys who would vigorously defend the case through to a jury verdict or a judge’s decision.
When Is a Counter-Lawsuit Against the Employee Appropriate?
We have handled numerous cases in which the conduct of the former employee that led to termination was so outrageous that the employer had good cause to bring a counter-lawsuit against the former employee. A counter-lawsuit against a former employee creates enormous pressure because most lawyers take an employee’s case on a contingency basis. When a counter-lawsuit is filed, these lawyers often request upfront payment from the former employee in order to defend the counter-lawsuit brought by the employer.
When the former employee has egregiously breached the employment contract, the non-compete clause, the non-solicitation clause, or is still in possession of company-owned computers or proprietary information, we sometimes advise our clients to go on the offensive and bring a counter-lawsuit. Every case is different and must be evaluated to determine whether a counter-lawsuit may be appropriate.
How Can I Prevent Future Employment Law Issues?
Many employment lawsuits stem from the fact that business owners do not have appropriate company policies in place. To plan strategically and to mitigate chances of employment litigation, our firm creates several safety mechanisms, including:
- Solid Employment Contracts
- Effective Policies
- Employee Manual
- Functioning Reporting System
- Designation of Compliance Officer
Our attorneys have extensive experience defending employers in lawsuits brought by employees who alleged discriminatory practices or wrongful termination. Many cases have resulted in summary judgments in favor of our client-employers. Summary judgment is rendered when the court determines that the employer’s decision was appropriate “as a matter of law.” In other words, even when considering all of the pleadings and evidence in the light most favorable to the plaintiff, the employer’s decision was lawful, and no trial is necessary.
Defending claims of discrimination and retaliation
In one example, an employee was terminated for poor performance. The employee filed a lawsuit, asserting racial discrimination. Discovery revealed that (1) the plaintiff’s case was untimely and (2) the plaintiff had no evidence to support an accusation of racial discrimination. On the contrary, the employer had adequate documentation concerning the plaintiff’s repeated instances of unsatisfactory job performance. Summary judgment was rendered in favor of the employer.
Another client was accused of discrimination and retaliation upon terminating an employee after learning she had committed fraud, among other misconduct. The firm actively pursued causes of action against the former employee while simultaneously defending against the employee’s false claims of discrimination and retaliation.
Enforcing contracts and protecting trade secrets
In another case, an employee had been given access to confidential customer lists and other proprietary information during the course of his employment. Later, he opted to voluntarily terminate his employment and began working elsewhere. A problem arose, however, when he decided to attempt to take our client’s customers with him. The employer sued its former employee, alleging unfair competition and breach of contract. Our attorneys were successful in protecting the client’s trade secrets and enforcing its non-competition and non-solicitation agreements.
Several of our clients are health care entities. Like so many businesses, each of these entities are responsible for complying with various state and federal mandates concerning their operations, reporting, and other requirements. Aside from complying with health care regulations, these clients also have regular needs involving the treatment of employees. Oberheiden & McMurrey, LLP has extensive experience dealing with regulatory compliance both from a health care and employment law perspective.
- Defending Harassment Claims
Tens of thousands of harassment claims are filed with EEOC each year. Harassment can occur on a variety of grounds, including, harassment on the basis of sex (gender), race, religion, or other status protected by Title VII of the Civil Rights Act of 1964, as amended. Some courts have also recognized harassment on the basis of a person’s gender identity or sexual orientation, political beliefs or affiliations, marital status, and personal appearance, among other things.
What constitutes harassment?
Harassment becomes unlawful when (1) the conduct is so severe or pervasive that it creates a work environment that a reasonable person would consider intimidating, hostile, or abusive or (2) enduring the offensive conduct becomes a condition of continued employment. Petty slights, minor annoyances, or isolated incidents (unless extremely egregious) do not rise to the level of unlawful harassment. Unlawful conduct may include offensive jokes, slurs, or name calling, physical threats or assaults, intimidation, ridicule, or mocking. Importantly, the victim of the harassment is not necessarily limited to the person on the receiving end of the unlawful conduct. Anyone affected by the offensive conduct (e.g., persons who witness or overhear inappropriate gestures or comments) could also qualify as a victim of harassment.
How do I prevent harassment from occurring?
Prevention is the best tool for eliminating workplace harassment. We encourage employers to implement effective policies and training for educating employees about diversity, inclusion, and non-harassment. Moreover, immediate steps should be taken to correct inappropriate behavior if and when it occurs. First and foremost, employers should clearly communicate to employees that unwelcome harassment will not be tolerated. Employees should be encouraged to inform the harasser directly that the conduct is not welcome and should cease immediately. Employers should also establish an effective complaint process, which provides a method for employees to comfortably report harassment to appropriate personnel (e.g., designated supervisor, compliance officer, or human resources specialist). If harassment is reported, the employer should utilize a thorough investigative process to determine the source and scope of the harassment in order to implement appropriate remedial measures. Employers should also emphasize that retaliation for reporting harassment is not acceptable and will not be tolerated.
What is the role of the EEOC?
The Equal Employment Opportunity Commission (EEOC) is a federal government agency responsible for enforcing federal laws that make it illegal to discriminate against an employee or applicant on the basis of race, color, religion, sex, national origin, age (40 or older), disability, or genetic information. The EEOC has the authority to investigate charges of discrimination against employers who are covered by the applicable federal laws (i.e., typically, employers with 15 or more employees). Most states have their own state-equivalent agency to the EEOC. For example, the Texas Workforce Commission is the state equivalent for enforcement of employment discrimination laws for the State of Texas. Prior to filing a lawsuit, an affected employee must file a formal charge of discrimination with the EEOC (and/or state-equivalent agency) and receive a “right to sue” letter.
Timeline: From Complaint to Trial
Once an employer receives an employment complaint from the EEOC or state-equivalent agency, several steps can follow. First, the employer should immediately retain experienced employment counsel. It is important to begin document preservation and witness collection efforts as soon as possible. A thorough investigation should be conducted in order to assess the merit of the claim. Depending on the facts gathered, alternative dispute resolution may be warranted to try and resolve the case. If litigation ensues, the employer –through its attorney – will need to respond to the complaint, engage in the discovery process, and file any dispositive motions that may be appropriate. A trial may be necessary if the case does not resolve through conciliatory or pretrial measures. Oftentimes, employment cases can last for a couple of years from the time of the alleged wrongful employment conduct to the end of the trial.
How We Can Help
If you or your business is the subject of an employment complaint, you should contact us immediately to seek advice about how to defend against the claim. We can also help you if you need assistance in creating or revising employment policies that are compliant with state and federal laws. It is important to have an employment handbook that advises employees how to appropriately handle issues like discrimination complaints, disciplinary practices, workplace safety, and like matters within the confines of applicable law.
- What Are My Rights under the FMLA?
The Family and Medical Leave Act (FMLA) requires that covered employers allow eligible employees to take up to 12 workweeks of unpaid, job-protected leave for specified family and medical reasons. Eligible employees are also entitled to continuation of group health insurance coverage under the same conditions as if the employee had not taken leave.
Who qualifies for FMLA?
In order to qualify as an “eligible” employee under the FMLA, an employee must:
- Work for a covered employer;
- Have worked 1,250 hours during the 12 months prior to the start of leave;
- Work at a location where the employer has 50 or more employees within 75 miles; and
- Have worked for the employer for 12 months.
What are qualifying reasons to utilize FMLA?
An eligible employee is entitled to utilize FMLA for the following reasons:
- The birth of a child and to bond with the newborn;
- The placement with the employee of a child for adoption or foster care and to bond with the child;
- To care for an immediate family member with a serious health condition;
- To take medical leave when the employee suffers from a “serious health condition”; or
- For qualifying exigent circumstances arising out of the fact that the employee’s immediate family member is on covered active duty or call to covered active duty status as a member of the National Guard, Reserves, or Regular Armed Forces.
What constitutes a violation of the FMLA?
Employers are prohibited from interfering with, restraining, or denying the exercise of FMLA rights.
Employers are entitled to require medical certification from a health care provider, but they may not require that an employee provide a medical release or access to medical records. Any contact between the employer and employee’s health care provider must comply with the Health Insurance Portability and Accountability Act (HIPPA) privacy regulations. Employers should not ask the health care provider for additional information beyond that contained in the medical certification. If an employee fails to provide an appropriate medical certification, FMLA leave may be denied.
Upon return from an approved FMLA leave, an employer must return the employee to the same job or an equivalent position. If the employee is not returned to his or her same job, the new job must be nearly identical to the previous job, meaning it must (1) offer the same shift or work schedule at a geographically proximate worksite, (2) involve the same or substantially similar duties, (3) include the same level of skill, effort, responsibility, and authority, (4) offer identical pay, and (5) provide identical benefits.
Our attorneys have extensive experience with incorporating FMLA policies into employment manuals and ensuring employers have proper procedures in place for abiding by the FMLA and its accompanying regulations. Additionally, Oberheiden & McMurrey, LLP has vigorously defended employment cases in which an employee has asserted that his rights were violated. Contact us to find out how we can help defend your business against unsubstantiated employment claims.
- What is Employment Discrimination?
Types of Discrimination
Both state and federal law govern employment relationships and workplace conduct. Title VII of the Civil Rights Act of 1964 is the most often-cited statute in the context of employment discrimination. “Title VII,” as it is commonly known, prohibits discrimination on the basis of race, color, national origin, religion, and sex. Other types of discrimination are also prohibited. For example, the Age Discrimination in Employment Act (ADEA) of 1967 protects persons over 40 from employment discrimination on the basis of their age. The Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities in the employment context and elsewhere (e.g., public accommodations).
Most states have statutes and regulations equivalent to those present under federal law. The laws can vary from state to state, however, and it is imperative to ensure that your business complies with the most restrictive laws in the jurisdictions in which you do business.
Below is a list of some of the types of discrimination claims available to employees:
- Age discrimination
- Disability discrimination
- Gender discrimination
- Genetic information discrimination
- National origin discrimination
- Pregnancy discrimination
- Retaliation (on this basis of participation in a discrimination complaint, FMLA leave, or other protected employment activity)
- Religion discrimination
- Sexual harassment
- Sexual orientation discrimination
Discrimination laws became a priority during the 1960s civil rights movement but have continued to evolve over time as the workplace has become reshaped based on economic and social developments. Now, more than ever, American culture demands diversity and tolerance, particularly in the workplace. Contact our firm to learn how your business can ensure it provides an appropriate employment environment that is at all times compliant with state and federal law.
- ENFORCEABILITY OF NON-SOLICIATION CLAUSES
Among the most controversial aspects in employment law is to what extent so-called non-solicitation clauses are legal and enforceable. The following is meant to be a summary designed to address the most common questions our attorneys receive in the context of non-solicitation clauses.
Q: What is a non-solicitation clause?
A: A non-solicitation clause prohibits departing employees or former employees from hiring and soliciting staff of their former employer.
Q: What makes non-solicitation clauses so important?
A: Trained employees and staff are a valuable investment made by an employer. Thus, employers have an interest in keeping those valuable commodities with their business. A non-solicitation clause is an important contractual measure you can use to protect your investment.
Q: Are non-solicitation agreements legal?
A: Yes, parties are free to negotiate in good faith and create non-solicitation restrictions with one another.
Q: What law governs the enforceability of non-solicitations?
A: State law, and not federal law, governs the enforceability of non-solicitation clauses. State laws can vary from one state to another, so it is important to be familiar and comply with the laws of the state(s) which governs your business.
Q: What is the difference between a non-compete and a non-solicitation clause?
A: A non-solicitation clause prohibits former employees to hire staff and other employees from the company that they are leaving, while a non-compete clause is designed to prevent a former employee from becoming a direct competitor.
Q: What is the difference between a non-solicitation and an NDA?
A: A non-disclosure agreement (or “NDA”) aims at keeping disclosed information between parties confidential. Sometimes NDAs contain non-solicitation clauses.
Q: Are oral promises enforceable?
A: Yes. Texas law honors oral promises to the same extent it honors written agreements concerning non-solicitation. Still, it is important to commit agreements to writing whenever possible in the event questions arise as to the parties’ understanding of the terms.
Q: What happens when the non-solicitation is breached?
A: Breaches of non-solicitation clauses should not be taken lightly. Experienced lawyers will advise you whether or not to send demand letters or initiate legal proceedings to enforce the non-solicitation agreement and to protect your business.
Q: Is a breach of a non-solicitation a material breach of contract?
A: In rare instances, it can be, when and if the parties declared such breach material.
- Discrimination & Termination
Discrimination. Indeed, employment relationships are governed by state and federal laws. Our experienced attorneys handle serious discrimination cases involving employment discrimination such as discrimination based on gender, sexual orientation, race, national origin, age, disability, and other protected areas.
Wrongful termination. Among the most common employment litigation cases are wrongful termination claims. In this context, we have been hired to represent clients in matters involving Family and Medical Leave, Maternity and Paternity Leave and many other aspects of termination.
- Non-Compete Restrictions
Non-Competes. A substantial amount of employment cases of our Employment Law Practice Group are non-solicitation and non-compete clauses. When business relationships end, one side may attempt to hinder the departing side from working for a direct competitor. The position of the employer is valid, but often we experience that the non-compete clauses were drafted without careful recourse to current law. Lack of enforceability may be the result.
Generally, in Texas, a non-competition agreement must specify: (a) its duration, (b) a geographical area or territory, and (c) scope of activity to be restrained. These factors must be drafted to be reasonable to protect, for example, the employer’s business interests. Whether a non-compete clause is reasonable or not is a question of law — questions of law are decided by judges. Under most circumstances, a Texas court will rule that indefinite non-compete clauses are unenforceable.
Moreover, Texas non-compete clauses must be “ancillary or part of an otherwise enforceable agreement or contact” (other than payment to employee, for example, of a salary). It is important to note that providing an employee with confidential information may be enough to make a non-compete clause enforceable, noting further that it is widely believed that for a non-compete clause to be enforceable, an employer must provide the employee separate monetary consideration.
Employers should understand Texas non-compete law to effectively protect their economic interests. If you would like us to draft reliable non-compete language for your business contract or explore the enforceability of an existing clause, you should contact former federal prosecutor Lynette Byrd.
Employees should understand the limits of non-compete clauses to prevent their prior employer from unlawfully restricting their ability to earn a living. If you would like us to review or negotiate an existing or impending non-compete clause, you should contact former federal prosecutor Lynette Byrd.
- Government Audits
Government. In addition, our attorneys have substantial experience in dealing with Department of Labor (DOL) and other governmental agencies to resolve matters of regulatory compliance. For example, we have handled EEOC, National Labor Relations Board, and Occupational Safety and Health Administration cases in state and federal courts across the country. The team against government audits is led by Ms. Lynette Byrd, a former federal prosecutor, and Dr. Nick Oberheiden, managing partner of the firm.
- If You Are An Employer
Many states, like Texas, are employment-at-will jurisdictions. Accordingly, employers have the right to make decisions concerning hiring and termination of employees for any reason (with or without cause) as long as those decisions are not discriminatory or otherwise unlawful. Our attorneys have extensive experience defending employers in lawsuits brought by employees incorrectly alleging discriminatory practices or wrongful termination. We have also successfully assisted employers in enforcing non-competition, non-solicitation, and other employment-related agreements to protect their businesses.
If you or your business is the subject of an employment complaint, you should contact us immediately to seek advice about how to defend against the claim. We can also help you if you need assistance in creating or revising employment policies that are compliant with state and federal laws. Contact our Employment Law Practice Group leader Lynette Byrd for a free consultation.
- If You Are An Employee
Employees have the right to be treated fairly under the law. It is unlawful to discriminate against or harass employees, particularly if such treatment occurs as a result of a protected characteristic such as gender, sexual orientation, race, national origin, age, disability, or another protected characteristic.
If you believe you have been treated unlawfully by your employer, you should contact our Employment Law Practice Group leader Lynette Byrd at 1-800-810-0259 for a free and confidential consultation.