Articles

Employment Law: Employment Claims

• Wrongful Termination
• Whistle Blowing
• Pregnancy Leave
• Workers' Compensation
• Disability & Workers' Comp
• Non-Competition Clauses
• Implied & Oral Contracts

Wrongful Termination 

"Wrongful Termination" is a term that generally refers to a person being fired when they shouldn't have been. It can be a very misleading phrase. Many terminations that people think of as "wrongful" aren't illegal. 

At Will Employment  

In Texas and most other states, employment is "at will." This means that the employer can fire the employee for no reason or any reason.  

There are two exceptions to this general rule:

1. Employer Discrimination

Employers cannot discriminate against employees are the basis of age, race, sex, national origin, disability, and a variety of other reasons. Employers cannot discriminate against an employee because he or she has "whistle blown" which is reporting illegal activity of the employer. They also cannot discriminate against an employee for engaging in other protected activities, such as filing workers' compensation claims. If an employer fires an employee because of one of these factors, that is against the law, and the employee can sue. 

2. Employment Contract 

If any employee has a contract with the employer, the employee probably cannot be fired without just cause. Contracts can be written or implied (See section on Breach of Contract). A common way for an employee to have a written contract is to be in a union. Other than these exceptions and a few rare others, employers can fire employees for any reason, even because they just don't like the employee. 

What is Wrongful Termination? 

If the employer fires an employee because of race or another illegal reason, that is "wrongful termination." 

If the employer fires the employee in violation of a contract, that is not, in legal terms,"wrongful termination." It is "breach of contract." 

Whistle Blowing 

"Whistle Blowing" is when an employee tells on an employer who is breaking the law. Employees who blow the whistle on their employers are protected by law. If they are fired or otherwise retaliated against for whistle blowing, they can sue. 

What Is Whistle Blowing? 

To actually "Whistle Blow", the employee must tell of the illegal act to someone outside the company. It must be a government or law enforcement agency.

If the employee just complains to someone inside the company, that is not whistle blowing, and the employee is not protected by the whistleblower laws. However, the employee may be protected under other laws. For example, it is illegal to fire someone for complaining of sexual harassment or discrimination.

Does the Employer Have to Have Broken the Law? 

It is not necessary that the employer actually broke the law. The employee could be whistle blowing on something that isn't illegal in the first place.The employee is still protected from retaliation or termination. 

However, the employee must believe that he or she is reporting a violation of the law, and the employee's belief must be reasonable. 

How is the Employee Protected? 

If the employee has reported the allegedly illegal activity to a government or law enforcement agency, he or she is protected. The employer cannot retaliate against the employee. The employer cannot fire the employee for the whistle blowing. The employer cannot mistreat the employee for whistle blowing. This does not mean that after whistle blowing, the employee cannot be fired for any reason. The employer can continue to treat the employee like any other employee. But the employer cannot treat the employee differently because of the whistle blowing. Obviously, if the employee whistleblows on Monday and is fired on Tuesday, it suggests that the employee was retaliated against for making the report. 

Pregnancy Leave 

Discrimination based on pregnancy is illegal under both the Texas Fair Employment and Housing Act (TFEHA) and the Federal Title VII laws 

This includes discrimination based on pregnancy, childbirth, or related medical conditions. 

Even discrimination based on the "potential" for pregnancy is illegal. For example, in one case a manufacturing company would not allow women to work certain jobs because if they were pregnant there could be harm to their fetus. This was illegal discrimination. Additionally it is unlawful for an employer to ask a prospective employee whether or not she is or intends to become pregnant. 

Accommodating Pregnancy 

Employers have a number of responsibilities to employees who become pregnant. For instance, if a woman becomes pregnant, and with the advice of her doctor asks for a position that is less strenuous or hazardous, the employer must transfer her to another position if it has one, or can make one without being "unduly burdened." Basically, if its not too much trouble for the employer to accommodate the woman's needs, he has to do it. 

Pregnancy Family Medical Leave 

Federal Title VII Law does not explicitly require employers to grant Pregnancy leave, although it does prohibit Pregnancy discrimination. However, the Federal Law does require employers to grant medical leaves, which are applicable to pregnant women (See separate section on family and medial leave.) 

The TFEHA specifically gives pregnant employees the right to take a leave of absence for a reasonable period of time, not to exceed four months. The employer does not have to pay his employee during this time. 

A "reasonable period of time" is the time period where the woman is "disabled" because of her pregnancy, childbirth, or related medical conditions. "Disabled" in this context simply means she cannot work. During a Pregnancy leave, a woman may also use any vacation time she has accrued. 

Employers can require any employee who plans to take a pregnancy leave to give the employer reasonable notice of the date the leave will start and how long it is expected to last. Employers generally cannot force a pregnant employee to go on pregnancy family medical leave. It is there if the woman wants it. However, if the employer can show that the woman absolutely cannot do her job, or is "disabled" by the pregnancy, he may be allowed to make her take a leave of absence. This is, however, a very difficult situation for the employer, because it is likely that the Pregnancy can somehow be accommodated, which means the woman should be allowed to stay. 

Non-Competition Clauses 

Sometimes employers require an employee to sign an employment agreement containing a non- competition clause or covenant. Ordinarily the employee is in contact with customers or clients of the employer, or deals with patent or copyright information, usually referred to as proprietary information. 

The employer does not want the employee to leave or go to work for a competitor and take the customers, clients or proprietary information to a competitor.

The Employee and Non-Competition Clauses  

Balanced against the employer's desire for protection, the employee needs to get another job after leaving that employer. The easiest and most remunerative job would be in the same field, with the same job title, doing the same work. Therefore, by necessity the employee needs to work for a competitor in order to utilize his knowledge, experience and skills. 

Implied & Oral Contracts 

Implied contracts can be created many ways. They are more common than written contracts in the employment relationship. 

Implied contracts are often called "oral or implied contracts." This is because implied contracts are usually created by both circumstances (which "imply" that a contract exists) and oral statements. 

For the sake of clarity, "oral or implied contracts" will be referred to here simply as "implied contracts." 

Contracts that are more strictly oral in nature will be called "oral contracts", and are discussed below. 

The Essential Term of the Implied Contract

"Good Cause" is discussed in the section for Breach of Contracts under written contracts. It is very nearly the same when dealing with implied contracts. 

An agreement that the employer won't fire the employee without "good cause" is the basic term of the implied contract in an employment relationship.  An employer "breaches" or "breaks" not to fire without "good cause" when:

• The implied contract said no termination without good cause.
• There was no good cause to fire the employee.
• The employee was fired anyway.

How the Implied Contract Is Created

The following are some of the ways implied contracts can be created. The more factors that exist in a given situation, the more likely there is an implied contract. 

1. Length of Service 

This is a very important factor in creating an implied contract. The length of service must be significant. Two weeks at an employer does not create an implied contract. 

2. Progressive Discipline Policy

Many employers have policies of "progressive discipline." These policies state that employees will not be fired the first time they make a minor mistake. Instead, employees receive warnings, second warnings, etc., before they are fired. Even when there is a progressive discipline policy, there are probably a number of things the employee can do which will get him fired immediately. 

3. Employee Benefit Programs

Retirement programs, 401K programs, and the like can help to create implied employment contracts, because they help imply that the employee is expected to be around long enough to participate in them or get their benefit. 

Good Cause for Termination

As stated above, employees who have created implied contracts cannot breach them. To determine if an implied contract has been broken, the employee must consider what he's suing for. For instance, maybe the written contract stated that the employee would be there for five years, unless there was "good cause" to fire him. The employee doesn't think he's done anything wrong. This is the most common situation. The employer said there was good cause to terminated and the employee says there was no good cause. (See above discussion of the Essential Term of the Implied Contract.) 

Here, the employee's claim is that contract was breached for the following reason: 

1. The contract said no termination without good cause.
2. There was no good cause to fire the employee.
3. The employee was fired anyway. 

Just like the "good cause" determination discussed above when there is a written contract, the employee must look at the contract itself to determine if the employer has breached it. 

But how does the employee look at something that isn't written down? 

Employee Handbooks

Most often, the "terms" of the implied contract can be found in an employee handbook. For example, the handbook may have a "progressive discipline policy" (see discussion above), which states that employees are to be given warnings for certain infractions before they are fired. 

If the employee can establish that there is an implied contract, and that one of the terms was that the employer would follow the progressive discipline policy in the handbook, the employee can point to the handbook and treat it like a written contract. He can look at the language of the policy and see if the employer has failed to follow it. 

Oral Employment Contracts

It is possible to have an oral contract concerning your employment; however, it may not be enforceable. Some contracts must be in writing to be enforceable. 

Confirm In Writing

The major problem with an oral contracts is that it is hard to prove. If what you are asking for is important, ask your employer to confirm it in writing. It is important to note that many executive contracts are in writing. 

The Burden Of Proof

The best thing to do if you believe you have an oral contract with your employer that the employer has breached is to call an attorney. However, don't be surprised if the attorney doesn't take your case if you don't have proof of the oral contract. 

If it only comes down to your word against the employer, you will probably lose because "you" have "the burden of proof.

The attorneys of Thering McCarley work tirelessly to obtain fair, reasonable and just compensation by providing professional and thorough representation In Denton, Dallas, and Collin county. If you feel as though you may have an employment law claim, contact our Frisco Law Office immediately for a free consultation 972.668.0090 24 hour answering-2801 Network Blvd #820, Frisco, Texas 75034.