Join (Free!) | Login  

     Popular! Books, Stories, Articles, Poetry
   Services MarketPlace (Free to post!)
Where Authors and Readers come together!


Featured Authors:  Craig Nagasugi, iJill Eisnaugle, iPaul Williams, iRM DAmato, iLisa Loucks Christenson, iRonald Yates, iLannah Sawers-Diggins, i

  Home > Reference > Articles Popular: Books, Stories, Articles, Poetry     

Tony R. Bertolino

· Become a Fan
· Contact me
· Articles
· 26 Titles
· 6 Reviews
· Save to My Library
· Share with Friends!
Member Since: Mar, 2009

Tony R. Bertolino, click here to update your pages on AuthorsDen.

Featured Book
The Godsons take over. From The Godsons
by Tuchy (Carl) Palmieri

An almost true story of the alliance between organized crime, Native Americans and corrupt politicains. together they create the ultimate fronts for organized crime..  
BookAds by Silver
Gold and Platinum Members

Featured Book
Her Peaceful Sleep
by alex canton-dutari

A short story depicting the Doc's struggle through the last period of his wife's life...  
BookAds by Silver
Gold and Platinum Members

   Recent articles by
Tony R. Bertolino

Changing of the Times: New Challenges and Strategies for Texas Family Law
Obtaining an Order of Protection Under Texas Law
Electronic Evidence Meets Right to Privacy in Texas Divorce Cases
The Importance of Putting Your Children First in Texas Divorce Cases
Putting Your Children First in Texas Divorce Cases
Obtaining an Order of Protection in Texas
Electronic Evidence Meets Right to Privacy in Texas Divorce Cases
What to Do If You are a Victim of Employment Discrimination
Multi-Million Dollar Divorces Bring a Unique and Complex Set of Issues
The Dos and Don'ts When Appearing Before the Texas Medical Board or Texas Board of Nursing
Chapter 11 Bankruptcy May Be the Fate of Many Businesses Throughout Texas
Houston is Providing Easier Access to Voter Registration Forms
           >> View all

Protecting Yourself against Claims of Discrimination and Wrongful Termination
By Tony R. Bertolino   

Last edited: Tuesday, August 04, 2009
Posted: Tuesday, August 04, 2009

Share    Print   Save    Become a Fan

When you are an employer and you hold the livelihood of others in your hands, the sense of responsibility is great. You need to make the decisions that are the best for your business and family as well as give great consideration to the people who work for you. What happens when, after issuing a painful but necessary cut to your staff, you are accused of discrimination or wrongful termination?

During these difficult economic times, it is unlikely that you will find any employer who is not making some changes to the way in which his business is structured. From cutting back on merchandise to altering hours of operation to letting some employees go, I know that each choice is carefully weighed. As of April 2009, the unemployment rate here in Texas stood at 6.7% , which is certainly better than the 9.4% rate of unemployment that the country as a whole is experiencing but is still not comforting to those whose lives are affected. When you are an employer and you hold the livelihood of others in your hands, the sense of responsibility is great. You need to make the decisions that are the best for your business and family as well as give great consideration to the people who work for you. What happens when, after issuing a painful but necessary cut to your staff, you are accused of discrimination or wrongful termination? Good jobs are not easily-found commodities these days, and employees may just try any tactic to keep their positions. You must be familiar with both federal and state laws that apply to employment practices, as well as understand the steps you can take if you are faced with such a lawsuit.

Let me start with a piece of good news. Texas is one of the friendliest states in terms of employer protection. Our state follows the “employment at will” rule, which means that, with limited exceptions, an employee can be fired without warning and without cause. Even if there is a written contract establishing employment, the employer must specifically indicate that he or she will not terminate anyone except for under certain circumstances, which must be laid out. So, even if you signed on the dotted line when hiring someone to assist you in your office, you likely have retained the right to let that person go at any moment that you choose.

The “at will” policy does reach its boundaries when it comes into conflict with the federal and state laws that are in place to protect employees. Texas employers cannot discriminate against or fire employees who fit into the following categories:

1. Whistle blowers – If any employee reports fraudulent activity or safety or environmental concerns to authorities, this person cannot be fired as a result.

2. Refusing to Break the Law – This should not be surprising. If you ask an employee to commit an illegal act and your request is refused, you may not use this decision as cause for termination.

3. Victim of Discrimination against Protected Class – An employee cannot be fired simply based on race, color, national origin, religion, sex, age (with exceptions), disability, or for taking maternity or family medical leave

If you are dealing with a former employee who is suing you for discrimination or wrongful termination and his reasoning does not fit into one of the categories listed above, the case should be dismissed quickly. This is certainly the desired outcome, as the cost for further legal defense can be quite difficult for employers to handle. Eighty-one percent of discrimination claims that are not dismissed outright end up in front of arbitrators or in administrative hearings. These proceedings cost the employer an average of between $22,000 and $40,000. Of course, cases that end up going to trial will be exponentially higher in total cost. An employer’s best course of action is to know his rights and his boundaries when dealing with employees and always to operate within these guidelines.

Keeping up with this issue is crucial for employers because accusations of discrimination are on the rise, both here in Texas and around the country. Age discrimination is one area that perhaps does not get much publicity, but is a growing problem. As shared by Joe Bontke from the Equal Employment Opportunity Commission (EEOC), “The older the workforce gets, the more age discrimination claims come. 16,585 out of 86,000 cases received in Texas last year were regarding some form of age discrimination.” This represents a 20% increase in claims since 2004. Section 21 of the Texas Labor Code, as well as the federal Age Discrimination in Employment Act of 1967, protects individuals who are at least forty years old from facing employment discrimination based on age. In addition, charges of racial discrimination in the workplace are at their highest levels nationally since 1994. With the diverse population that resides in Texas, this issue is one that needs to be of concern to all employers. And, with layoffs and office closures continuing to occur in the wake of the current recession, you can be certain that disgruntled employees will be looking for legal reasons to protect their jobs or promotions when paychecks are on the line.

What can you expect if an employee does seek legal action against you? A complaint will be filed with the EEOC within 180 days of the alleged wrongdoing. If mediation is available, the EEOC may present this option to both parties as a first step. Mediation is free and the resulting settlements are confidential. If an investigation is determined to be necessary, someone from EEOC will be assigned to the case and embark upon a study of the case that usually takes at least six months. The EEOC then will send the employee a “right to sue” letter, which indicates that the employee either has a cause for a complaint, no cause for further action, or insufficient evidence to proceed further. Regardless of the decision reached by the EEOC investigator, the employee still has the right to sue you in federal or state court for up to ninety days after receiving the “right to sue” letter. You must be ready for the possibility that an employee with a axe to grind will pursue his or her case to the fullest extent possible.
It is in your best interest to hire an employment attorney as soon as you receive notice that an investigation concerning possible discrimination at your workplace is underway. An experienced lawyer will assist you in the important process of being fully compliant with the request for materials. Your attorney also will be your advocate in presenting the best possible argument in your defense and ensure that all relevant state and federal laws are being applied on your behalf. If you are facing a complaint concerning employment discrimination or wrongful termination, please place a call to an attorney today.

Web Site: Bertolino LLP

Want to review or comment on this article?
Click here to login!

Need a FREE Reader Membership?
Click here for your Membership!

Au naturel / born naked by Albert Russo

Portraits of the author, alone or accompanied, taken in Africa, The US, Europe, where he has resided, and around the world, in different stages of his life, with pictures of his ab..  
Featured BookAds by Silver
Gold and Platinum Members

Free Download Cyclopedia of Philosophy by Sam Vaknin

Free cyclopedia of issues in modern philosophy - 1000 pages of essays and articles. ..  
Featured BookAds by Silver
Gold and Platinum Members

Authors alphabetically: A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

Featured Authors | New to AuthorsDen? | Add AuthorsDen to your Site
Share AD with your friends | Need Help? | About us

Problem with this page?   Report it to AuthorsDen
© AuthorsDen, Inc. All rights reserved.