Employment law FAQ's
This site contains general information. We hope you find it informative. This site is not intended to provide legal advice or create an attorney-client relationship.
What is "employment at will?"
Texas is an employment at will state. In general, that means that your employer has the right to terminate you for a good, bad or no reason at all with very limited exceptions. The exceptions to the employment at will doctrine include the state and federal anti-discrimination statues, which provide protection in some instances to persons in certain categories, such as race, gender, or disability discrimination, or a refusal to commit an illegal act that would subject you to criminal penalties. You may also have additional rights if you have a written employment contract.
I've just been fired. Do I have a claim against my employer?
It is very difficult to answer that question without analyzing all of the facts of your termination.
I believe that my employer discriminated against me. What should I do?
If you believe that your employer discriminated against you on the basis of race, sex, age, disability, national origin, or religion, you need to file a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") or the Texas Workforce Common Civil Rights Division. There are strict time limits for doing this, so you should contact those agencies as soon as you believe an act of discrimination has occurred. You can find the EEOC office closest to you by going online at www.eeoc.gov. You can find the TWCCRD going online at www.twc.state.tx.us.
How much time do I have to file a Charge of discrimination?
You need to file a Charge of Discrimination with the TWCCRD within 180 days after each discriminatory act. In Texas, you can file a Charge of Discrimination with the EEOC within 300 days after each discriminatory act. However, you should consider filing your charge as soon as possible.
I complained about discriminatory treatment from my supervisor and then got fired. What can I do?
The statutes that protect employees from discrimination also protect employees from retaliation for the assertion of their legal rights. If you believe that you have been retaliated against for making a complaint of discrimination, you should file a Charge with the EEOC or TWCCRD and consult with a lawyer.
Do I need a lawyer to file a charge with the EEOC or TWCCRD?
No. You can file a Charge with the EEOC or TWCCRD without a lawyer. However, if you plan to later sue, it is usually better to have the assistance of a lawyer from the beginning. Most lawyers prefer to have some involvement in the administrative process and to assist you with the filing of your EEOC or TWCCRD charge.
Why do I need to file a Charge with the EEOC and what happens after I do?
Before you can file a lawsuit against your employer for certain types of discrimination, the law requires that you have exhausted the administrative remedies provided for by the EEOC and TWCCRD. Thus, in some cases you cannot sue your employer until you have gone through the EEOC or TWCCRD complaint process and received a Right to Sue letter from the EEOC or TWCCRD.
When you contact the EEOC or TWCCRD, you will fill out an Affidavit that sets forth the details of the discriminatory act. If the EEOC or TCHR does not believe the information provided to them is sufficient to warrant an investigation, it will issue a Right to Sue letter at that time. If they believe that the information you provided warrants further investigation, the EEOC or TWCCRD will prepare a formal "charge." The Charge is forwarded to your employer for a response. While the Charge is pending, the EEOC or TWCCRD may ask if the parties want to submit to a voluntary conciliation process. If the parties agree, the EEOC or TWCCRD, with the assistance of a neutral mediator, try to reach a resolution of the dispute.
After the EEOC or TWCCRD receives the employer's response to your Charge, it will either continue to investigate or reach a determination. If the EEOC or TWCCRD believes that there is not sufficient evidence to show discrimination, it will close out the file and issue a Right to Sue letter. If the EEOC or TWCCRD believes that there was evidence of discrimination, it will either agree to pursue a lawsuit on your behalf or it will issue a Right to Sue letter. In most cases, since the resources of the EEOC and TWCCRD are limited, even if they find evidence of discrimination, the agencies will issue you a Right to Sue letter so that you may pursue the claim on your own.
I have been issued a Right to Sue letter. What do I do now?
You need to retain counsel and pursue your claims immediately. You must file a lawsuit within a specified time period. The deadlines will be set forth on your Right to Sue letter.
My claim has been pending at the EEOC or TCHR for a long time. How long does the process take?
Since these agencies are usually quite busy, it can take quite some time for your charge to be processed. However, if your charge has been on file with either agency for more than 180 days, you have the right to request that the agency issue you a Right to Sue letter. Once you get the Right to Sue letter, you can then file a lawsuit against your employer even though the agency did not complete its investigation.
How do I file a claim for unemployment compensation?
You can file a claim for unemployment compensation by contacting the Texas Workforce Commission at 1-800-939-6631. You can get phone numbers for local TWC centers by looking online at www.twc.state.tx.us. Your employer has the right to contest your application for unemployment compensation. If your employer contests your right to receive unemployment, you will receive notification of it in the mail. Pay close attention to all documents you receive from the TWC as these documents will contain strict deadlines for you to follow if the right to unemployment is being contested. If your employer does contest your right to receive unemployment and is successful, you have the right to appeal that determination by following the instructions you will receive from the TWC. Be sure to keep filing claims for unemployment while your claim is on appeal.
I was injured on the job and was receiving worker's compensation payments for my injury and my employer just terminated me. Can they do that?
That is a very difficult question to answer without knowing the full circumstances. In general, an employer cannot retaliate against you or discriminate against you because you instituted a workers compensation proceeding. You should consult with an attorney to review your particular factual situation and determine if you have an actionable claim.
I get paid a salary and was told that I am an exempt employee. Can I possibly be entitled to overtime compensation?
The determination of whether you are entitled to recover overtime compensation does not turn solely on whether you were told by your employer that you are exempt or whether you are paid a salary. Often, even if you are paid a salary, you may be entitled to overtime compensation. Normally, you are entitled to be paid overtime unless you are an employee considered "exempt" under the provisions of the Fair Labor Standards Act. There are three main exemptions under that statute: (1) professional, (2) executive and (3) administrative. The determination of whether you are an "exempt" administrative, executive or professional employee turns on an analysis of your job duties. The regulations that determine whether a particular employee in a particular job position is exempt are quite detailed and complex. If you believe that you might be entitled to overtime compensation and do not receive it, you should consult with an attorney or seek guidance from the Department of Labor ( www.dol.gov).
How do I know if my former employer is giving me a bad reference?
It is difficult to find out exactly what your former employer is saying about you. At this time, many companies have a "neutral" reference policy. This means that they will only confirm for a potential employer that you worked for their companies, the dates of employment and the position that you held. If you believe that your former employer is giving you an bad reference and possibly slandering you, you can hire a company to check your references for you.
My employer wants me to sign a non-compete agreement. Can it make me do that?
If you are asked by your employer to sign a non-compete agreement, you should get an attorney to review it on your behalf and to explain to you the consequences and effect of signing such an agreement. In Texas, a non-compete agreement may be enforceable if you sign it. Texas law does allow parties to enter into a non-compete if the parties comply with the very specific provisions of the Texas statute. Many non-compete provisions presented to employees do not comply with the Texas statutes. However, to know whether a non-compete presented to you will be enforced and what your rights are, you should consult with an attorney.
If I sue my employer and lose, do I have to pay my employer's costs and fees?
Possibly. Some of the statutes provide that the prevailing party is entitled to recover costs, which can include attorneys fees, from the party that does not win in the litigation. If you sue your employer, you need to be aware that there is a chance your former employer will seek to recover those costs and attorneys fees from you if you do not win the lawsuit.
Can I get legal advice over the telephone?
It is the policy of this law firm not to provide legal advice to anyone until an attorney- client relationship has been established. This law firm does not provide legal advice over the telephone until we have agreed to represent you and take on your case.
If I contact your law firm, will you represent me in my employment case?
We get contacted by many people and unfortunately cannot assist all of the people who contact us. We ask that each person contacting us fill out a short questionnaire that helps us evaluate your employment situation and determine if we will be able to assist you. Because we want to provide high quality representation to all of our clients, we are limited in the amount of cases that we can handle. If we cannot assist you in your matter, we will be happy to provide you with the phone number for the Texas Bar Association Attorney Referral line or the Dallas Bar Association Attorney Referral line. If you want to fill out our questionnaire, Please click here.
How much will all this cost me?
Each claim is different and the costs for pursuing claims and litigation can vary widely. Attorneys typically charge for their services in one of two ways: (1) an hourly rate or (2) a contingency fee. If you hire an attorney to work for you on a hourly basis, the attorney will bill you for all time the attorney spends working on your behalf at the attorney's regular hourly rate. You can also expect to pay all expenses that are incurred on the engagement. If you hire an attorney to represent you on a contingency basis, you agree to pay the attorney a percentage of the total amount recovered by the attorney on your behalf. You will also be required to pay the expenses of the litigation or representation while the attorney pursues your claims, although the attorney may agree to advance those expenses while the claim is pending.
How can I get a copy of the questionnaire to submit my claim to your firm for review?
Click this link to fill out the form. Contact this law firm at (214) 736-1347 and request the questionnaire. It can be mailed, faxed or emailed to you. You must understand that submitting your questionnaire to this law firm for review does NOT mean that this law firm agrees to represent you. You can mail the questionnaire to this firm at Kleiman Lawrence Fitzgerald LLP, 8350 North Central Expressway, Ste 650, Dallas TX 75206 or faxing it to 214-265-7411.
Are there any other websites that will have answers to my questions?
Yes. There are many excellent websites that provide some general guidance on basic employment questions. Two good government websites include the EEOC at www.eeoc.gov and the Department of Labor at www.dol.gov. Other sources include www.myemploymentlawyer.com and www.workplacefairness.org. These are good sites to visit for answers to general employment law questions."