Labor Day Observations from a Texas Employment Lawyer

Labor Day is celebrated each year to honor American workers.  A nation can show no greater honor to its workers than to ensure respect through safe working conditions, fair pay and benefits, and a work environment free of discrimination.   That includes protections against pay disparity between the sexes, as well discrimination against older workers, pregnant employees and the disabled.

As far as our nation has come in the last 100 years in extending worker protections, we continue to lack in many areas.   Here are a few Labor Day thoughts.

Did you know. . .

….you can give up your right to bring a legal claim through the court system by accepting a job?  The answer is yes.

A right to a jury trial is a constitutional right, yet many employers require workers to agree to arbitration agreements as a condition of employment.  That means if you refuse to sign it, you will be fired!  Some employers are just sticking the arbitration agreement in handbooks, and when you sign for your handbook you are “agreeing” to arbitration.  The result is that if you ever have to bring a legal claim against your employer, you will not have your case decided by a judge in your city, or a jury of your peers.  Rather it will be decided by an arbitrator paid for by your employer.  Many times an employer will pay tens of thousands of dollars to the arbitrator to decide a case.   Can you imagine if you had your case in front of a judge that received a contribution of $25,000 from your former employer?  It would never happen because that judge would recuse his or herself.   Not the case in arbitration.  Sounds unfair?  It is.

…you can work for your employer one day and they can limit your future employment for the next two years?  The answer is yes.  

Most workers in Texas are “at-will” employees.   That means you can be fired at any time, for any reason that does not violate an employment law.    Some employers are requiring workers to sign non-compete agreements as a condition of employment.  These non-compete agreements essentially bar you from working for a competitor of your employer for a certain period of time (usually 1 or 2 years) in a certain geographic area (city wide or a 200 mile radius for your workplace).    So in exchange for your employer giving you absolutely no guarantee of future employment, they can greatly affect your livelihood and ability to support your family.   If you have a specific skill, or work in a specific profession, these non-compete agreements can devastate you financially.   Sounds unfair? It is.

…you can be fired for getting hurt at work?  The answer is yes.  

Texas law prohibits the termination of a worker for reporting a workers’ compensation claim.  The problem is that Texas does not require all employers to have workers’ comp insurance.   If an employer does not carry workers’ comp insurance then this retaliation law does not apply to them.  The result is that in some cases you can legally be fired for getting hurt on the job.  Sounds unfair? It is.

…you can be fired simply because of your sexual orientation?   The answer is yes.  

Both federal and Texas anti-discrimination laws do not prohibit discrimination based on a worker’s sexual orientation (except the Seventh Circuit, which Texas is not a part of).   While federal legislation has been proposed to amend the Civil Rights Act of 1964 to include sexual orientation discrimination, it has died in committee.  A good  lawyer or work compensation attorney can sometimes bring a gender discrimination claim based on an employer or supervisor making decisions based on “gender stereotypes” (e.g. criticizing a gay worker for not acting “like a male”).     Unfortunately that argument may not be available in many cases where the LGBT community faces workplace discrimination and harassment.   Sounds unfair? It is.

Let’s celebrate the day of the American worker, but let us not forget that work still has to be done to ensure full and fair protections for all of the people that make this country great.   Happy Labor Day!

“Workplace Rights are Human Rights.”

–   Eleanor Roosevelt

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John Wenke is an Employment Law Attorney practicing in the area of employment discrimination, wrongful termination, retaliation, and sexual harassment. Mr. Wenke represents employees in Texas and New Mexico, including but not limited to El Paso,  Las Cruces, Alamogordo, Pecos, Marfa, Alpine, Presidio, and Del Rio.