A huge number of current and former members of the military reside and work in the State of Texas.  As such, it is important for these individuals to understand their rights under both State and Federal law.  Texas has enacted a State law which provides for veterans to receive preference in employment with a state agency.  Federally, the Uniform Service Employment and Reemployment Rights Act (“USERRA”) protects past and present members of the uniformed services from discrimination in employment. 

Veteran’s Employment Preference Act

The Texas Veteran’s Employment Preference Act is found in Chapter 657 of the Texas Government Code.  Although relatively limited in terms of its impact on veterans’ ability to obtain employment with state agencies, it does theoretically provide certain employment rights for veterans in Texas and gives veterans an edge when applying for positions.  The reason that I emphasize the limitations of the law is that it is very specific in terms of when a veteran should be given this preference.  The only time that a veteran receives this preference is when he/she is compared to other applicants for the same position “who do not have a greater qualification.” 

Without a whole lot of guidance from the Legislature, what constitutes “greater qualification” is subject to a good deal of interpretation.  Does it just mean that the State agency must look at the objective criteria like education and work history?  Or does the agency also consider more subjective elements of the application process like the interview?  It would appear as though there would need to be two nearly identical candidates for the law to actually impact the hiring decision.  As written, the Texas Veteran’s Preference Act does not really have the impact that the Legislature likely intended when it was enacted. 

Discrimination under USERRA

Veterans, and current members of the armed forces, enjoy much greater protections under USERRA than under Texas State law.  USERRA

• prohibits discrimination and retaliation against past and present members of the military,
• ensures that you have the right to be reemployed if you are forced to leave your job to perform service
• allows members of the military the right to elect to continue their existing employer health plan for up to 24 months if they are forced to leave the job for service. 

Like the anti-discrimination laws that prohibit discrimination based on an individual’s gender, race, age, disability, national origin, or color, USERRA prohibits employers from discriminating against an individual based on that individual’s past or present military service or intent to serve in the military.  Not only are employers prohibited from using this information to deny someone employment opportunities, but it also cannot be used for purposes of re-employment, promotions, or any other benefit offered by the employer.

Employment Assistance for Veterans

In addition to the Veteran’s Employment Preference Act and USERRA, Veterans also have various tools available through both the VA and other state and federal organizations.  For example, the Texas Workforce Commission gives priority service for veterans searching for jobs through its Workforce Solutions offices.  Additionally, the Veterans’ Employment and Training Service (VETS), which is part of the United States Department of Labor, provides assistance to veterans entering or re-entering the workforce. 

If you are a current or former member of the military and you believe that your status as a veteran or current member of the military is being held against you in some way by your employer or a potential employer, it is important that you understand all of your legal rights.  An employment attorney in your area can discuss your potential claim and provide you with your legal options.    

More and more employees across Texas are being required to sign binding arbitration agreements with their employers. These arbitration agreements are oftentimes found in employment contracts, but can also be found in standalone agreements that an employer presents to an employee. Oftentimes, there is little to no negotiating of the terms of these agreements. The employer hands the document to the employee (or potential employee), and tells the employee that he or she must sign the document as a condition of employment. While it may seem unfair, there is little that prevents an employer from doing this.

What is arbitration?

Arbitration is an alternative process for resolving legal claims outside of the court system. The rules that will govern the arbitration process are most often laid out in the contractual agreement between the parties. In arbitration, an arbitrator is chosen by the parties to oversee the case and make procedural decisions very much like a judge would. Like a lawsuit, the parties will go through some form of discovery where documents are exchanged and the parties get to make evidentiary inquiries of one another. There will also be certain deadlines for the parties to conduct discovery and file any motions with the arbitrator. Ultimately, there is a hearing that takes place instead of a trial, and the arbitrator issues a ruling. These rulings are typically final, but they may be appealable depending on the rules.

How does the arbitration agreement affect me?

It is impossible to say how your specific arbitration agreement may affect you without reviewing it. However, most arbitration agreements will prevent an employee from pursuing any legal claims against his or her employer in court. Instead, the employee will be forced to pursue the claim through arbitration. While there are a lot of similarities between arbitration and a lawsuit, there are also very stark differences.

• Cost-costs of arbitration are typically much higher for the employee than in a lawsuit.
• Rules- of arbitration differ from those that apply in a state or federal lawsuit. While this does not necessarily mean that the rules are always stacked against the employee, the reality is that arbitration agreements can deter employees from pursuing claims against their employers.
• Off the Record– Arbitration proceedings are typically not part of the public record. This confidentiality element generally favors employers and prevents any influence from the court of public opinion.

An arbitration agreement does not waive your rights to pursue claims against your employer. For example, you still have the right to file a Charge of Discrimination with the Texas Workforce Commission (TWC) and Equal Employment Opportunity Commission (EEOC). However, once the TWC or EEOC has issued a right to sue, you are likely forced to pursue the case further in arbitration.

So, you’ve been handed an arbitration agreement and told to sign it or you’re out of a job. What do you do? While it is always advisable to thoroughly review whatever document you are signing, the reality is that if you do not sign the document, you are likely out of a job. You can always contact an employment attorney in your area to discuss the document before you sign it. And if you have already signed an arbitration agreement, remember that it is not the end of the world. You are not releasing your claims because of that agreement, but you are binding yourself to a completely different legal proceeding.

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.