Is it legal for an employer to retaliate against an employee in Texas? This question is presented to me over and over again by employees who have suffered retaliation in the workplace. The answer, like answers to many questions regarding employment law in Texas, is not black and white. The simple answer is that whether retaliation is legal or illegal depends on the reason for the retaliation by the employer. Unfortunately, there is not a catchall legal protection for all retaliation by an employer.
The answer to this question necessarily begins with the basic principle of Texas employment law: Texas is an at-will employment law state. What that means, in general terms, is that an employer can terminate an employee for a good reason, a bad reason, or no reason at all. Similarly, an employer, in general terms, can legally retaliate against an employee for a good reason, a bad reason, or no reason at all. However, there are important exceptions to at-will employment, and those exceptions provide legal remedies for employees who have been unlawfully fired or who have suffered unlawful retaliation. Simply put, if an employer has fired an employee or retaliated against an employee for an illegal reason, that termination or retaliation is illegal and an employee may have legal rights that provide protections and remedies.
That answer then begs the question, under what circumstances is it illegal for an employer to retaliate against an employee? Again, there is no simple rule. The protections for employees against retaliation are provided by a patchwork of various laws providing protection against retaliation in a random variety of circumstances. Retaliation is protected in some circumstances, but not in others. The best way to determine if retaliation by an employer is illegal is to contact an employment attorney well versed in the numerous federal, state, and local laws that provide protection.
While a lawyer should be contacted to determine if an employer has violated a retaliation law, here is an incomplete list of circumstances where it may be illegal for an employer to retaliate against an employee:
Retaliation may be illegal under the following circumstances (please note this is not an all-inclusive list, and please note that specific facts will determine whether or not a law has been violated):
- Retaliation for refusing to commit an illegal act (the Sabine-Pilot doctrine in Texas);
- Retaliation against a public employee for whistleblowing (reporting an illegal act);
- Retaliation for opposing, reporting, or complaining about discrimination on the basis of race, color, disability, religion, national origin, age, or sex;
- Retaliation for reporting an on the job injury or filing a workers compensation claim;
- Retaliation for filing an EEOC charge of discrimination;
- Retaliation against a nurse for whistleblowing or for certain reports;
- Retaliation against an employee hospital, mental-health, or treatment facility for whistleblowing;
- Retaliation for filing a wage and hour claim;
- Retaliation against truck drivers for opposing, reporting, or blowing the whistle on trucking violations;
- Retaliation for reporting irregularities or securities-law violations at publicly traded companies (Sarbanes-Oxley);
- Retaliation for asserting rights under the USERRA (a law providing rights for members of the military and National Guard);
- Retaliation against whistleblowers related to projects funded by the Stimulus Act;
- Retaliation against whistleblowers regarding fraud against the Government.
As stated above, this list is not all-inclusive, as there are too many laws and the laws are too complicated to discuss in one blog post. Whether an employee is protected by the law will depend on all of the facts and circumstances. Therefore, if you believe you have been retaliated against in violation of the law (or you wish to determine your rights before you do something that may lead to retaliation), I recommend contacting a Texas employment lawyer.
As always, this post does not constitute legal advice for the reasons stated in my disclaimer on my website. Every employee should consult an attorney to get legal advice for their specific employment issue.