Texas is what is known as a “one party consent” state.  What that means is that if you are a party to a conversation in Texas (and all parties to the conversation are in Texas), you have the legal right to record that conversation.  So, is recording conversations at work in Texas legal?  Like a lot of legal issues, it is not always an easy answer.

Employees who are subjected to discrimination or retaliation oftentimes want to surreptitiously record conversations with their boss or human resources.  The obvious motive being that the employee is looking to obtain evidence in support of his or her potential claim.  It is very common for the discriminatory or retaliatory treatment to be oral only (i.e. not by email, memoranda, etc.), and unless there are witnesses to the incident, it will oftentimes result in a “he said/she said” scenario.  Not surprisingly, having a recording of these conversations can be extremely helpful evidence when pursuing a discrimination or retaliation claim.

The Most Common Problem

The most common problem that arises when an employee is recording conversations in the workplace is when the employer has a stated policy prohibiting such conduct.  The employer may choose to fire an employee for violating this policy, and a court may ultimately determine that it was perfectly legal for the employer to do so.  While the employee has done nothing criminal by recording a conversation at work, there is no law that prohibits the employer from firing that employee for violating policy.

Remember, when at work, never record a conversation that you are not a party to.  Additionally, if your employer has a policy that prohibits recording at work, it is best to not record any conversations and risk getting fired.  When in doubt, contact an employment attorney in your area to discuss your rights.

Does the Supreme Court’s recent ruling on gay marriage mean that Texas employers can no longer discriminate against employees because of their sexual orientation?

The short answer: No.  In Texas, it is still legal for an employer to discriminate against an employee because he or she is gay.  In Obergefell v. Hodges, the Supreme Court determined that the laws banning same-sex marriage are unconstitutional.  The ruling means that men and women across the country now have the constitutionally protected right to get married to a member of the same sex.  However, the ruling does not affect the federal employment discrimination law, Title VII of the Civil Rights Act of 1964, or the Texas employment discrimination law, the Texas Commission on Human Rights Act.

The Employment Non-Discrimination Act

The Employment Non-Discrimination Act has been repeatedly proposed in Congress as legislation to provide LGBT employees protection in employment.  However, it has not gained enough traction to ultimately be passed.  A similar law has been drafted in the Texas Legislature, but it has also failed to garner the support necessary for it to become state law.  While there is hope that the laws will ultimately be amended, currently both state and federal law do not protect employees from discrimination on the basis of their sexual orientation.  In Texas, a man could marry another man, but either one could be fired from his job because his boss finds out that he is gay.

Currently, LGBT individuals have had very limited success in the courtroom pursuing claims of discrimination.  The primary argument used in these cases has been that of gender discrimination; in that the employee did not conform to gender norms or gender stereotypes.  With the Supreme Court determining that same-sex marriage is legal, one new angle that terminated gay employees could pursue would be based on a violation of his or her Constitutional rights.  Just like an employee cannot be fired for exercising his or her right to freedom of speech, an employee should not be fired for exercising his or her right to marriage.

While there may still be limited rights for the LGBT community in Texas for employment discrimination, it is still important to evaluate all legal options if you believe that you have been wrongfully fired.  If you believe that you have been fired or otherwise discriminated against because of your sexual orientation, you should talk to an employment discrimination attorney as soon as possible.

Recently, I have seen an uptick in the number of potential clients contacting me to discuss possible pregnancy discrimination.  While it may be a mere coincidence, I believe that I am receiving more questions about pregnancy discrimination claims because, unfortunately, it is a very real problem for employees in the workplace today.

Supervisors (especially male supervisors) oftentimes frown upon an employee needing to take off work for any extended period of time; no matter the reason.  While the Family and Medical Leave Act (FMLA) provides expectant mothers with up to 12 weeks of job protected leave for the birth of a child, what happens when you are not covered by the FMLA?  This is where things can get a little confusing for both employers and employees.

Are all employees guaranteed maternity leave?

No.  In Texas, there is no state or federal law that guarantees maternity leave for all employees.  To be eligible for the 12 weeks of job protected leave under the FMLA, the employer must have 50 or more employees within a 75 mile radius.  That essentially excludes small employers from the FMLA requirements.  Additionally, an employee must have worked for the employer for at least 12 months and at least 1,250 hours during the 12 month period immediately preceding the leave.  Some employers mistakenly offer FMLA leave to their employees despite having fewer than the requisite number of employees.  If your employer offers you FMLA leave, they may ultimately be bound by that offer even though they are not actually covered by the law.

If you work for an employer with between 15 and 74 employees, then you are still guaranteed the protections of the Pregnancy Discrimination Act (PDA).  The PDA protects employees from discrimination on the basis of pregnancy, childbirth, or related medical conditions.  However, the PDA does not guarantee maternity leave.  Under the PDA, employers are currently only ‘required’ to provide leave to employees who are temporarily disabled because of a pregnancy.

If you believe that your employer is discriminating against you because of your pregnancy, or that you may be terminated based on your pregnancy or birth of your child, it is very important to contact an attorney who understands the laws related to pregnancy discrimination.

To pursue a claim of discrimination or retaliation, you obviously need evidence to support your claim.  Evidence comes in many different forms, but one of the most prevalent and helpful forms of evidence is documentary evidence.  This would include things like emails, memos, and letters.  These are oftentimes important pieces of evidence because they may contain information that is directly related to the allegations of discrimination or retaliation.  A supervisor may verbally harass an employee based on a discriminatory reason, but if there is no witness and no recording of that conversation, it can be more difficult to prove.

The Wal-Mart Lawsuit

At the beginning of the year, a federal judge in Georgia sanctioned Wal-Mart for having destroyed evidence in a discrimination lawsuit filed by a former employee.  Not only was Wal-Mart ordered to pay nearly $20,000 to the employee’s attorney, but the court even ordered that the jury is allowed to presume that the Wal-Mart supervisors retaliated against the employee who had complained about discrimination.  Now this case is a very unique situation.  Oftentimes, it is difficult, if not impossible, to prove that an employer has actually destroyed relevant evidence in a lawsuit.

The Wal-Mart lawsuit is an example of the possibility that your employer may not always be playing by the rules.  Evidence can be hidden or even destroyed.  That is why it is so important that you document the discrimination and/or retaliation while you are still employed.  Remember that if you are terminated, you will lose any access you had to files in your office, documents on your computer, and work emails.  Keep track of the information that supports your discrimination claim, and while it may violate company policy to take this documentation from your company’s office building, you still have the ability to maintain a chronology of events that shows when certain emails or other written communication were sent and what information was shared.

If you believe that you may be experiencing discrimination or retaliation in the workplace, it is important to contact a discrimination employment lawyer who can advise you about your legal rights and help ensure that all potential evidence is preserved.

Although the phrase “wrongful termination” is often used when an employee is unfairly or unlawfully fired from his/her job, there is no legal cause of action for “wrongful termination.”  What that means is that, in Texas, an employee cannot sue his/her former employer based on the sole theory that he/she was “wrongfully” fired.  However, there are several potential legal claims that an employee may be able to pursue if the actions of his/her employer violate any employment law.

What is “Wrongful Termination?”

Just because your employer fires you without a good reason does not necessarily mean that you can pursue a claim against that employer.  Just because your employer fires you because they feel like there is a personality conflict with you, it does not necessarily mean that you can that you can pursue a claim against that employer.  An employee may be able to pursue a legal claim against his/her former employer if the termination was based on discriminatory reasons, retaliatory reasons, in breach of an employment contract, or in violation of some other law or public policy.

Additionally, if you do ultimately have a potential legal claim against your former employer, there may be certain steps you have to take before you can actually file a lawsuit.  If you believe you have been terminated based on some unlawful reason, it is important that you contact a wrongful termination attorney to discuss your legal rights.  Timing is very important, and you may lose your right to pursue a claim if you let too much time pass.

While employers are not obligated to offer a severance payment to a terminated or laid-off employee, there are various situations in which employers do.  A severance payment is generally offered with various conditions for the employee.  Most importantly, a severance agreement will more often than not contain a waiver of any legal claims that the employee may have against his/her employer. The agreement may also waive your right to ever work for that particular employer in the future.  It is very important to carefully review all of the language contained in a severance agreement because it may affect your legal rights.

Before You Sign

If you have been provided with a severance agreement by your current or former employer, it is wise to have an experienced employment law attorney review the severance agreement on your behalf.  An attorney can advise you about the potential ramifications of the agreement, and may be able to negotiate a higher severance payment. It is very important to speak to an attorney before you sign the agreement.