Workplace Retaliation
Dallas Employment Lawyer Dan A. Atkerson Helps You Seek Justice
It is illegal under who has engaged in a legally protected activity or refused to participate in an illegal activity carrying criminal penalties. Some employers take retaliatory steps when an employee reports or participates in an investigation of racial discrimination, age discrimination or disability discrimination or complains of other discrimination such as sex discrimination, sexual harassment, pregnancy discrimination, national origin discrimination, religious discrimination, FMLA discrimination or interference, workers compensation retaliation or the employer’s failure to pay overtime compensation or wages required by the Fair Labor Standards Act. Retaliation may involve a change in pay, a change in work schedule, demotion, termination or some other type of adverse employment action that affects the terms and conditions in employment. If you believe that you have been the victim of workplace retaliation, experienced Dallas employment attorney Dan A. Atkerson can help you determine if you have an employment law claim.
Examples of Retaliation
A retaliation claim involves an individual suffering an adverse action in response to his or her protected activity. These claims may involve, but are not limited to demotions, terminations, failures to promote, poor performance reviews, unwarranted disciplinary action and unreasonable increases or decreases in job duties from employers. There are specific laws that offer protections for employees who are victims of retaliation from their employers including but not limited to the following:
Discrimination: An employee may not be retaliated against for opposing a discriminatory practice, making a discrimination charge, filing a discrimination complaint, or testifying, assisting, or participating in an investigation, proceeding, or hearing of discrimination. Texas law also prohibits discrimination on the basis of race, color, disability, religion, sex, pregnancy, national origin or age. Tex. Lab. Code Ann. §§ 21.051, 21.055.
Fair Labor Standards Act: The Fair Labor Standards Act (FLSA) mandates wage, hour and overtime requirements that employers must follow. Employers are prohibited by the FLSA from retaliating against employees who engage in protected activity under the FLSA. The FLSA’s anti-retaliation provision prohibits employers from taking adverse employment actions to retaliate against an employee for engaging in protected activity such as complaints about wages, overtime, classification as non-exempt or exempt, time clock requirements, or because the employee instituted or caused to be instituted any FLSA proceeding. Like retaliation claims under Title VII, the elements of a prima facie FLSA retaliation claim include: 1) the employee engaged in protected activity under the FLSA; 2) the plaintiff later plaintiff suffered an adverse employment action; and 3) a causal connection existed between the employee’s protected activity and the adverse employment action. The United States Supreme Court has ruled that the FLSA’s anti-retaliation provision even protect “informal” complaints of the employer’s failure to pay overtime compensation or otherwise comply with the FLSA, that is, unwritten complaints alleging violation of the FLSA are protected activity to support an FLSA retaliation complaint.
Health Care Employees: Health care professionals are protected under several statutes:
Hospitals: A hospital, mental health facility, or treatment facility may not discharge (or discriminate against) an employee for reporting violations of law. The report may be made internally to a supervisor or to a state regulatory of law enforcement agency. Tex. Health & Safety Code § 161.134(a). In addition, nurses receive additional protection when reporting certain violations required by law. Tex. Occ. Code Ann. § 301.413(b).
Nursing Homes: A nursing home or related institution may not discharge (or discriminate against) an employee for reporting violations of laws pertaining to nursing homes and related institutions, including reports of abuse and neglect. Also, employees who initiate or cooperate in an investigation or proceeding are protected. Tex. Health & Safety Code § 242.133.
Intermediate Care Facilities for the Mentally Retarded: An intermediate care facility for the mentally retarded may not discharge (or discriminate against) an employee for reporting violations of law, including violations of laws pertaining to such facilities. The report may be made to a supervisor, a state regulatory agency or a law enforcement agency. Also, employees who initiate or cooperate in an investigation or proceeding pertaining to the facility’s care, services or conditions are protected. Tex. Health & Safety Code § 252.132.
Hospice & Home Care: An employer who is licensed under Texas’s Home and Community Support laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to home health, hospice, or personal assistance. Tex. Health & Safety Code § 142.0093(a).
Assisted Living Facilities: An employer who is licensed under Texas’s Assisted Living Facilities laws may not retaliate against an employee for filing a complaint, presenting a grievance, or providing in good faith information relating to personal care services. Tex. Health & Safety Code § 247.068(a).
Occupational Health and Safety: An employee may not be suspended or discharged in retaliation for reporting an alleged violation of an occupational health or safety law to OSHA or via the Safety Violations Hotline (through the Texas Department of Insurance, Workers’ Compensation Division). Tex. Lab. Code § 411.082.
Workers’ Compensation: An employee may not be discharged (or discriminated against) in retaliation for filing a workers’ compensation claim in good faith. An employee is also protected if she has hired a lawyer to represent her in a claim, instituted a workers’ compensation proceeding in good faith, or has testified in a proceeding. Tex. Lab. Code § 451.001.
Sarbanes-Oxley Act
Congress enacted the Sarbanes-Oxley Act (SOX) in 2002 to reduce corporate fraud in American public company boards, management and accounting firms. SOX protects employees who express concern or disclose information about any internal, securities or shareholder fraud. SOX prohibits adverse action against whistleblowers, including termination, demotion, suspension, harassment, failure to promote or any other discriminatory action negatively impacting the whistleblower’s employment.
Whistleblower Act
The Whistleblower Act prohibits retaliation against any public employee who reports official wrongdoing. The Act says a state or local governmental body cannot suspend, terminate or take any other adverse personnel action against a public employee who reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.
Discrimination and Retaliation
State and federal laws that prohibit discrimination based on age, race, national origin, sex, pregnancy, disability or religion also provide protection against retaliation. Because discrimination based on these factors is illegal, any employee who reports discriminatory activity as recognized by the law is protected from retaliation. If you have been unlawfully retaliated against you may be able to recover monetary damages for lost wages and benefits, backpay, frontpay, compensatory damages for physical pain and suffering and mental anguish and/or liquidated or punitive damages.
While Texas adheres to “at-will” employment, meaning that an employee without a term contract can leave a job or be terminated at any time for almost any reason, there are several exceptions, and Texas and federal laws still provide whistleblower protection and prohibit employer retaliation. If you believe you have been the victim of workplace retaliation or discrimination, you should contact Dallas employment lawyer Dan A. Atkerson to set up an initial consultation.
