Frequently Asked Questions
- What rights do I have as a worker in Texas?
Unless you have an employment contract for a specific period of time, you are considered an “at will” employee. This means that your employer can terminate you for any reason, or even no reason at all, as long as the reason does not violate a specific law (e.g., an anti-discrimination law)
- What is discrimination?
Discrimination is more than being treated unfairly. Discrimination means your employer is treating you differently or more harshly due to certain characteristics you possess. These characteristics that are covered under discrimination laws includes: age (40 and older), race, national origin, gender (female or male); pregnancy; sexual harassment; disability, and religion.
- What if I and others with the same characteristics are terminated due to a policy or practice of my employer? Is that discrimination?
Perhaps. This type of discrimination is called a “disparate impact” claim. In these cases, employees do not need to prove that an employer intended to discriminate against a certain group, but that its action had a disproportionately negative impact on a large group of individuals in the same protected class (that is, people with the same characteristics). For example, an employer may have a minimum height requirement without showing it is job required. This requirement may thereby exclude a large percentage of applicants who are female, or applicants from certain minority groups. Another example may be Spanish speaking requirements that exclude Anglo and African-American applicants. Finally, this type of discrimination may apply to some layoffs that disproportionately affect older employees.
- Are there any laws the prohibit discrimination against me because of my sexual preference?
No. At the current time, no federal or Texas state anti-discrimination laws prohibit discrimination based on sexual preference. There are court cases, however, which have held that sex discrimination laws do cover transgender/gender identity discrimination. Sexual harassment laws also recognize “same sex” sexual harassment.
- What do I do if I feel I have been discriminated against?
Discrimination should not be tolerated or ignored. Options include informing management or the human resources department in writing. Be professional and be accurate. A second option is filing a formal complaint of discrimination with the U.S. Equal Employment Opportunity Commission. The EEOC will document and investigate your complaint. With either option, you are protected against retaliation. If your employer does retaliate, a separate legal claim of retaliation can be made. Finally, you may also want to seek legal advice from an attorney that practices employment law. This is particularly true if you have been sexually harassed, demoted, terminated, or expect to be terminated.
- Are there time limits that affect my legal rights?
Yes, and unfortunately these time limits vary depending upon the type of legal claim. To make a discrimination claim under Texas state law, you must file a complaint with the EEOC within 180 days from the discriminatory act. Other employment laws are as short as 90 days, and some are as long as 2 years. Therefore it is important to seek legal advice from an employment law attorney as soon as you can.
- What if I resigned because I could no longer take the discrimination, harassment, or retaliation? Am I still covered under discrimination and other employment laws?
Under most circumstances, the answer is yes if the working conditions were so intolerable a reasonable person would be forced to resign. This is called a “constructive discharge” under the law.
- If I was fired after an injury or an illness, what rights do I have?
It depends. If you were injured on the job and your employer carries workers compensation insurance, it is illegal for an employer to terminate you because of an on-the-job injury or workers comp claim. If the injury or medical condition was not work related, you might have protections under the Family and Medical Leave Act (FMLA), or the Americans with Disabilities Act (ADA).
- How much medical leave is my employer required to provide?
Employers are entitled to set out how much, if any, medical leave employees are entitled. If an employer has more than 50 employees in the El Paso area, and you have worked with your employer for more than one year, you are probably covered under the Family and Medical Leave Act (FMLA). Under the FMLA, an eligible employee is allowed to take up to a total of 12 workweeks of unpaid leave during any 12-month period for the employee’s own serious health condition; to care for a family member (spouse, child, or parent) with a serious health condition; or for the birth and care of a newborn or adopted child.
- Can my employer fire me after I complained of illegal activity at the workplace?
Again, it depends. Many people erroneously believe that “whistleblower” laws apply to all workers. Unfortunately, they do not. Whistleblower laws in Texas only apply to public-sector employees. That is, employees that work for public entities such as the federal, state, county or city government, as well as school district employees. For private-sector employees, there are very limited protections under this scenario. Some legal protections are given to healthcare workers who report illegal activity, and nursing home employees who report abuse or neglect. Employee who make complaints to government agencies such as OSHA (regarding working conditions) or the Department of Labor (for non-payment of wages or overtime) are also protected against retaliation. Finally, private-sector employees are also given legal protection for refusing to perform a criminal act.
- Do I have the same legal rights against discrimination if I am not an American citizen or a legal U.S. resident?
Under most circumstances, yes. Discrimination laws and most other employment laws cover all workers, regardless of their citizenship or residency status.