While there is no state or federal law that requires employers to offer former employees a severance, it is not uncommon for a severance package to be offered to certain employees who have been terminated or laid off.  A severance payment is most often made in exchange for a former employee’s release of any and all claims that he or she may have against the employer.  However, the fact that a severance has been offered does not indicate that the employer has done anything wrong, and it rarely can be used as any sort of evidence of wrongdoing against the employer.  When a severance is offered, it will be provided for in a written agreement that is most likely titled one of the following: Separation Agreement, Severance Agreement, or Release Agreement. 

What am I giving up in exchange for signing a Severance Agreement?

Without seeing the actual document, it is impossible to know or suggest exactly what you may be releasing in exchange for your severance payment.  However, generally speaking, the majority of severance agreements contain relatively standard release language that will release virtually all claims that you may have against the employer.  This will almost certainly include discrimination and retaliation claims under both state and federal laws (e.g. Chapter 21 of the Texas Labor Code and Title VII of the Civil Rights Act of 1964), as well as claims for breach of contract, negligence, and assault. Before signing a severance agreement, it is important to understand what claims, if any, you may have.

Is it possible to negotiate a Severance Agreement?

Like any negotiation, it is subject to both parties being willing to participate in the process.  There are a few ways that you may be able to negotiate a severance. 

1. First, you can argue from a strictly fairness standpoint that the severance payment should be higher, or that certain terms should be added/amended to the agreement.  This obviously is not a great bargaining position to be in.  The next two options for negotiating a severance are most successful when presented through an employment attorney. 
2. You can attempt to negotiate a severance based on contractual language between the employee and employer.  For this to work, there must have been a verbal or written agreement between the parties stipulating what severance will be paid upon the employment separation. 
3. Finally, employers are oftentimes (although not always) willing to negotiate a severance based on the threat of some valid legal claim against the company.  These  are most often discrimination and/or retaliation claims, but must be evaluated on a case by case basis. 

Regardless of whether or not you believe you have a legal claim against your former employer, you should always attempt to have an attorney review a severance agreement before you sign.  An attorney can advise you of any concerns related to the language in the agreement, and also let you know if there is any basis for potentially negotiating. 

For more information contact an employment attorney to see what options may follow a severance agreement.

First, you should always be very careful if you have been instructed by someone in your company to do something that is illegal.  If you follow through on performing the illegal act, there is the possibility that you could personally suffer the criminal consequences.  Ultimately, you really have two options:

1. you can follow the order and commit an illegal act or,
2. you can refuse to perform the illegal act and risk being fired.

Neither of these may seem like very good options, but you should never agree to do something criminal just because you are instructed to.  When in doubt, you can always reach out to an employment lawyer in your area to discuss your legal rights and options.

Texas Law for Refusing Illegal Act

While Texas is an at-will employment state, the Texas Supreme Court has created a public policy exception to this rule.  In Sabine Pilot Service, Inc. v. Hauck, the Texas Supreme Court found that an employee cannot be fired for refusing to perform an illegal act.  In the Sabine Pilot case, the plaintiff, a deckhand, was fired after refusing to illegally pump boat bilges into the water.  The Court found that the employee could not be fired because he refused to commit the illegal act.  However, this exception to the at-will doctrine is limited to situations in which the employee can show that he/she was terminated based on a refusal to commit an illegal act, and that refusal was the sole reason that he/she was terminated.  If the employer can put forth evidence of some other legitimate reason for termination, the Sabine Pilot claim may fail.

What steps do I take if I am asked to do something illegal?

If you are instructed to do something illegal, you should first refuse. 

• It is best to have documentation of the request to perform the illegal act and your refusal to perform the illegal act. 
• This documentation can be in the form of an email to your supervisor or HR, a handwritten or typewritten letter/memo to your supervisor or HR, or an audio recording of the conversation. 
• It is best to maintain a copy of the documentation for yourself should anything happen to your employment situation.

After refusing to perform the illegal act and documenting your refusal, your next action will likely depend upon your employer’s response to your refusal.  If your employer does nothing to discipline or otherwise retaliate against you, then it may not be necessary for you to do anything from an employment law standpoint. 

However, if someone else at the company moves forward with committing the illegal act, you may choose to report the illegal act to the appropriate governmental entity (e.g. OSHA, DOJ, or DOL). If you were fired for refusing to do something illegal, or even if your employer threatens you with disciplinary action or termination, you should immediately contact an employment lawyer to discuss pursuing legal action.

The Americans with Disabilities Act (ADA) protects employees from discrimination because of a disability.  This federal law applies to employers with 15 or more employees.  In addition to the ADA’s protections against discrimination based on an employee’s personal disability, it also has a section known as the “association provision” that protects employees from discrimination based on their relationship or association with another individual with a disability.  While the ADA does not require that the individual be a family member, these claims most often arise based on the disability of a family member. Under this provision:

• An employer cannot fire you
• Refuse to promote you
• Deny you any other employee benefit because of your association with someone with a disability. 

For example, if your employer provides health insurance to all employees, they cannot refuse to provide you with health insurance because they find out that your spouse has cancer.  Your employer must treat you the same as it treats other employees, regardless of the disability. 

Does my employer have to provide me with a reasonable accommodation because of my relationship with someone with a disability?

The short answer is no.  Unlike a situation where an employee personally has a disability,

• An employer is not required under the ADA to provide an employee with a reasonable accommodation because that employee’s spouse or child has a disability. 
• The employer is not required by the ADA to provide an employee with leave because of the employee’s relationship with someone who has a disability. 

However, an employer cannot implement its leave policy in a discriminatory way.

For example, if an employee requests days off of work to care for a family member who has a disability, the employer must treat that request as it would treat any other request for days off of work.

*Unlike the ADA, the Family and Medical Leave Act (FMLA) does require certain employers to provide up to twelve weeks of leave for an employee to care for a family member who suffers from a medical condition.

What do you do if you are experiencing discrimination based on your relationship with someone who has a disability?

As with other forms of discrimination, it is important to make a complaint when you believe you are suffering from discriminatory treatment.  If you are being harassed or denied leave because of your association or relationship with someone who has a disability, you must complain.  When you make a complaint about discriminatory treatment, the ADA protects you from retaliation by your employer.  You have the right to complain internally to your employer’s HR department, or you can complain to the Texas Workforce Commission, Civil Rights Division, or EEOC.  Talking to an experienced employment attorney either before or after making a complaint of discrimination can give you a better understanding of your rights.

The first step in determining how you go about filing a complaint against an employer is to figure out what type of complaint you are choosing to pursue.  There are different legal requirements or limitations deadlines depending on the type of complaint, and various state and federal agencies have the authority to investigate depending on the type of complaint.  Because the legal requirements are different depending on the type of complaint, it is always important to speak with a knowledgeable employment attorney in your area to know your legal rights and options.  The following are examples of the complaint process for various employment claims:

Discrimination or Retaliatoin

Discrimination and retaliation complaints must be filed with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC).  A complaint must be filed with the TWC within 180 days of the most recent incident of discrimination and with the EEOC within 300 days of the most recent incident of discrimination.  The complaint document that an employee files is called a Charge of Discrimination, and it must be filed within the above time periods to have a viable claim.  The TWC or EEOC will investigate the allegations and ultimately issue a right to sue which gives the employee the legal right to file a lawsuit.

Wage Claim

A federal wage claim is brought under the Fair Labor Standards Act (FLSA) and filed with the Department of Labor (DOL).  The FLSA covers minimum wage requirements, overtime pay, exempt versus non-exempt status, and equal pay.

A wage claim can also be filed with the TWC pursuant to the Texas Payday Law.  The Texas Payday Law covers the timely payment of wages, deductions from wages, compensable time, enforcement of a wage agreement, and final pay.

Once a claim is filed with either the DOL or TWC, the agency conducts an investigation to determine whether or not the employee is owed any unpaid wages.

Whistleblower Claim

The Texas Whistleblower Act covers public employees in Texas who have (1) reported in good faith what he/she believes to be a violation of federal or state law, a local government ordinance, or a rule adopted under a law or an ordinance (2) to an appropriate law enforcement authority, and (3) been suspended, terminated, or adversely affected by another personnel action for having reported the violation.  If the public employee is suspended, terminated, or adversely affected, he or she must first file a grievance or appeal with the employer within 90 days of the violation (if the employer has a grievance policy or appeal procedure).  Finally, the public employee must file a lawsuit under the Texas Whistleblower Act within 90 days of the violation (not including the time spent in the employer’s grievance/appeal procedure).

OSHA Violation

The Occupational Safety and Health Act (OSHA) is meant to prevent workers from being subjected to unsafe working conditions.  Employees have the right to complain directly to their employer about perceived OSHA violations or file a complaint directly with the Occupational Safety & Health Administration.

If an employee is fired, demoted, transferred, or discriminated against in another way for having filed an OSHA complaint, the employee has the right to file a discrimination complaint with OSHA within 30 days of the alleged retaliation.

Before filing any complaint, consult with an employment attorney in your area to best understand your legal rights and obligations.