Frequently Asked Questions
Question:
“Can my employer change my job duties or the terms of my employment, different from when I was hired?”
Answer:
Yes, based on a Texas Supreme Court case, Hathaway v. General Mills, your employer must give you unequivocal notice of any new job duties or any other change in the terms of your employment. Even if it decreases your income or benefits, you are deemed to have accepted the new terms when you go to work after having notice of the change in your duties. Essentially, you have the choice to work under the new conditions or find a new place to work. However, an employer cannot demote you or take other adverse actions because of your age, race, gender, religion, national origin, or disability. If you have evidence that one of those factors was in play, you should contact a lawyer to learn more.
Question:
“Are there any time limits for taking action if I have experienced either discrimination or retaliation by my employer?”
Answer:
Yes. For claims of discrimination and retaliation for reporting discrimination or harassment at work, the employee/person has 180 days (not 6 months, 180 days precisely) from the date when the employee knew unequivocally of the adverse employment action, e.g., termination, to file a charge with the EEOC. The EEOC and the Texas Workforce Commission (“TWC”) have a work-sharing arrangement, and so a charge filed with the EEOC within the 180-day period is deemed to have been filed timely with the TWC. If that 180-day deadline is met, then the person must allow the EEOC/TWC six (6) months to investigate the charge and make a recommendation. When the agency issues its recommendation, if there is no “cause” finding (which generally there is not), the EEOC will issue a Notice of Right to Sue to the person. Then the person will have 90 days from the date of receipt of the Notice of Right to Sue to file suit in federal court. The person must request a Notice of Right to Sue from the TWC, and upon receiving the TWC’s Notice of Right to Sue, the person has only 60 days to file suit in Texas State Court. [Note the difference in 60 and 90 days to file suit.]
If the person misses the 180-day deadline for filing the charge with the EEOC, there is a technical extension to 300 days (not 10 months, but 300 days precisely) from knowledge of the adverse employment action to file her/his charge with the EEOC. The same process is followed as described in the previous paragraph, except that upon receipt of the EEOC’s Notice of Right to Sue, the person has 90 days to file suit, but only in federal court. There is no right to file in Texas State Court if the person misses the 180-day deadline.
An employee wishing to file suit against her/his employer cannot skip this agency proceeding. It is a mandatory step before filing any lawsuit. I recommend that the person have a lawyer file the EEOC charge because the words used in the charge will be important in any future lawsuit. I also recommend that you post your calendar with the 180-day deadline for the EEOC charge filing date to preserve your rights.
Question:
“I am forced to work in a hostile work environment. My days at work are horrible. Do I have a claim?”
Answer:
The term, “hostile work environment,” has a very special meaning in the law. It does not mean that your boss is mean or hostile to everyone. The term, “hostile work environment,” arises in employment law only when there is harassment and it’s based on a protected class (race, sex, religion, national origin, disability, or age). For example, if you are subject to sexually offensive conduct; the conduct is unreasonably offensive; and it’s so bad that the sexually explicit actions or words permeate your work days so that they create a “hostile work environment,” then you may have a claim worth exploring. Of course, this would depend on your specific facts.
Question:
“I think that I signed a non-compete when I was hired at my previous company. Recently I was in a lay-off. Does that non-compete still apply to me? “
Answer:
There is a good chance that the covenant not to compete from your previous employment still applies. In the last several years, the Texas Supreme Court has expanded the application of the non-competition statute to more broadly apply to departing employees. Even though an employee leaves a company or is terminated, a covenant not to compete can still continue to bar him/her from working in the same type of employment for a period of time and in the same geographical region that he/she did at the previous company. If you have signed a covenant not to compete at any time, it is well worth the investment to have a competent employment lawyer advise you on the matter before taking a job with a new employer.
Question:
“I have read about the ‘Me, Too’ movement, and it made me aware that my boss touches me in ways that make me feel uncomfortable. Is that sexual harassment?”
Answer:
It could be. The “touching” depends on whether it is unreasonably offensive and whether it is either severe or pervasive. These are legal terms used by the courts, and they are fact-specific. Is a pat on the back “unreasonably offensive”? Probably not, but if his hand wanders under your arm or further, that’s a different scenario. What does “severe” mean? Of course, rape would be a severe offensive act, but if it was consensual, there is no claim. “Severe” means very, very bad! “Pervasive” is tough to prove. One case explains that the offensive activity is so frequent and ongoing that it “pervades” the workplace, it has become part of your horrible landscape at the office that you are enduring. If you are experiencing anything similar to what is described, you may want to talk with a lawyer who can advise you in more concrete terms.
Question:
What if I refuse to sign a new non-compete agreement that my employer has instructed me to sign?
Answer:
You could risk termination by flatly refusing to sign the document. The Texas Supreme Court has held that employers can make changes in an employee’s terms and conditions of employment so long as the employee is given unequivocal notice of the change. Therefore, the employer has the right to require signing a non-compete agreement. However, if you do not agree with the terms of the agreement, you can make a counteroffer by revising some of the wording, or you can choose to resign. If the wording is overly restrictive, you should see an expert non-compete lawyer because the agreement may be in violation of the statute governing non-compete agreements.
Question:
I have heard that Texas is a “right to work” state. Doesn’t that mean that non-compete agreements are no good in Texas?
Answer:
The phrase “right to work” is misleading. That phrase relates to union membership. It means that an employee cannot be forced to join a union, that he or she has a right to work as an individual employee without being a union member. There is no right to work without complying with the terms and conditions that an employer establishes for its business operations.
Question:
In the severance package that my employer is giving me in a lay-off, there is a non-compete section. Is that enforceable?
Answer:
No. An employer cannot insert a new term of non-competition in the papers for an exiting employee. There is a statute that requires a valid contract and corresponding case law on what type of consideration will support that valid contract containing the non-compete provision. A non-compete agreement as part of a severance package would not be enforceable.
Question:
What if my former employer failed to sign the line on my non-compete agreement. Is the non-compete agreement enforceable?
Answer:
It depends (typical lawyer answer). Whether a contract was ever created in the first place, in spite of one party failing to sign the document, depends on the surrounding circumstances and what the parties intended at the time the contract was being negotiated. If your copy of your non-compete agreement is not signed, see an expert contract lawyer because the agreement may or may not be valid.