Quick answers to common questions.

A common question from clients is the length of time it can take for a case to get from filing to trial. While many cases settle within a few months to a year, cases that must go all the way to trial for resolution can take a good deal longer.

Once a case is filed it begins a long process of discovery and preparation for trial. How far out that trial will be set can be affected by many factors, including the type of case, the complexity of the case, and the existing docket of the court in which the case is filed.

Unfortunately, the wheels of justice often turn slowly. Most courts recognize that the majority of cases are settled before they are tried. Given this fact, courts often set many cases for trial on the same date or set cases many months or years in advance. When one or more of those cases settle, the court can still try the remaining case and avoid losing a week of scheduled trials. Unfortunately, this means that some cases are reset to a later date. It is not at all unusual for a case to be passed over and reset from its first trial setting. And, given the number of cases that are scheduled on any given week, that reset date will often be many months in the future.

Another factor influencing the length of the litigation process is the simple fact that defense lawyers get paid by the hour. Obviously, the longer the case drags out, the more money they make. This is not to say that all defense lawyers intentionally "churn" the files for more hours. But the hourly billing model certainly does not encourage defense lawyers to be as efficient as possible.

It would seem that the simple answer is to set a quick trial date at the outset of the litigation and the case would proceed very fast. This is often the case in federal courts where a trial date is set at the beginning of the case and generally honored. In federal court it is pretty routine to have a case set for trial within 12–18 months of filing. In state courts, however, the amount of time it takes to get to trial can vary widely county to county. For a variety of systemic reasons, most cases in state court take far longer to get to trial than cases in federal court.

Although most cases will go to trial within 2 years from the date of filing, some will take longer because they involve complex issues of liability, insurance coverage disputes or high dollar damages that require expert testimony to prove up. When the testimony of expert witnesses like physicians, economists, engineers, or safety experts is needed, the case will also proceed more slowly. Physicians are busy and will generally schedule depositions only on certain days of the month. Thus, the parties must wait to secure their testimony.

Summing it up

There are a number of factors that cause cases to often take a long time to get to trial. Although the lawyers can play a part in this delay, most of it is baked into the judicial system. As you deal with your case, keep in mind that most plaintiff's attorneys do not get their fee until the case concludes. They don't want the case to be delayed any more than you do and they have a strong incentive to move the case as quickly as possible.

So you need to hire an employment lawyer but you don't know how to get started? Then this answer is for you.

Hiring an employment attorney to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren't hundreds of employment lawyers running TV advertisements in an attempt to get you to "Call now!" Quite the opposite is true in fact.

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are Board Certified to represent employees in employment-related disputes. The few who are qualified and have the years of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls.

Step 1 — Do some research

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Good employment attorneys will have a website that will provide you with a lot of high-quality information about employment law issues. Take a look at what practice areas the lawyer claims he or she practices in. You don't want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues.

Step 2 — Check for Board Certification

Attorneys in Texas are not required to be Board Certified in employment law in order to represent employees in legal matters. However, the State Bar of Texas does provide Board Certification to those few lawyers who meet the requirements. In order to become Board Certified, a Texas employment attorney must have practiced employment law for a number of years, go through a reference-checking process by the State Bar with numerous recommendations from lawyers and judges they have practiced with, and pass a lengthy written test.

You can generally see which lawyers are Board Certified because this badge will be displayed somewhere on their website. If you have any question about the matter, just ask the attorney whether or not they are Board Certified in employment law.

Step 3 — Expect to fill out a questionnaire and pay a fee for a consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. At the McKinney Law Firm, we use a short electronic form as an initial screening tool for the many potential client contacts we get each day. Sometimes, the form lets us know the issue is just a simple question for which we can provide a quick answer. Other times, we can tell that the type of case being described would be better handled by another lawyer who specializes in that specific niche — we can help get that referral set up at no cost. Sometimes the form lets us know that we simply can't lend any assistance — we can let you know that too, again at no cost. If the form indicates an issue on which we think we can provide meaningful assistance, then we can set up a full consultation.

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 — Prepare for your consultation

Once you have a consultation scheduled, it is important to prepare so you make the most of the time you will have with the lawyer. See How to prepare for your initial consultation below for a full set of tips.

It is certainly true that any lawyer who has passed the bar and is in good standing can legally represent you in an employment-related case. Many attorneys who primarily handle personal injury or other types of cases will also agree to take on wrongful termination, sexual harassment, or other types of employment cases.

However, just because a lawyer will agree to take your case does not, in and of itself, indicate that the lawyer has the specialized knowledge needed to do the absolute best job of representing a client in an employment-related legal matter. Employment law is highly specialized, largely controlled by statute, and full of short limitations time periods and other procedural issues that a practitioner must be aware of in order to fully protect his or her client's rights.

What does "Board Certified" mean?

In order to be certified, the attorney must have substantial, relevant experience in labor and employment law and have also demonstrated and been tested for special competence in that area. Board Certified lawyers earn the right to publicly represent themselves as specialists in a select area of law. To remain certified, an attorney must apply for recertification every five years and meet substantial involvement, peer review and continuing legal education requirements for the specialty area.

According to the Texas Board of Legal Specialization:

There are more than 70,000 attorneys licensed to practice in Texas. Only 7,000 are Board Certified. Board Certified lawyers earn the right to publicly represent themselves as a specialist in a select area of the law. In fact, they are the only attorneys allowed by the State Bar of Texas to do so. This designation sets them apart as being an attorney with the highest, public commitment to excellence in their area of law.

In short, Board Certification is one way to find a lawyer who has devoted a great deal of time and effort developing the skills and knowledge needed to effectively represent clients in that particular area of the law.

So now you have an initial consultation set up with a lawyer who has been recommended to you by a trusted source or who you have found from doing your own research. How do you make sure you make the most of this initial meeting? In a word: preparation.

Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm's docket.

Here are some important tips to keep in mind as you prepare for the meeting:

• Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don't expect the attorney to be your copy service and don't leave your originals with the attorney.
• Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple "Date — Fact" format will work fine in most cases. If at all possible it should be typed and not hand-written.
• Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney's time literally is their money. Don't waste it.
• Have the consultation fee ready — If the matter is not important enough for a consultation fee then don't make the appointment to begin with. But if you do make the appointment, don't put the lawyer in the position of trying to collect a fee from you at your first meeting. It's not the way to get off to a good start.
• Dress appropriately — How you dress communicates the level of seriousness you give the issue. You don't have to wear a suit. But during the meeting the attorney is considering what a jury will think and whether they will take your testimony seriously. How you present yourself plays into this analysis.
• Don't bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer's office, don't expect or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Keep in mind that the lawyer wants to hear YOUR story.
• Don't bring children — They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you.

Following these steps should help you have a productive initial consultation and hopefully find a qualified attorney to handle your employment-related legal matter.

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

Employment at will

"Employment at Will" means that an employee can be terminated at any time, for any reason or for no reason at all. If the employer decides to let you go, that's the end of your job — and you have very limited legal rights to fight your termination. If you are employed "at will", your employer does not need good cause to fire you. In every state but Montana, employers are free to adopt at-will employment policies, and virtually all do. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

Even "at will" employees, however, cannot be terminated for an illegal reason. If an employer fires someone because of his or her protected traits (race, age, disability, gender, religion, etc.), or in retaliation for protected conduct, it is still illegal — even if the employment was "at will." That is what "wrongful termination" means in the legal sense: a firing that violates the law, not merely one that is unfair.

Right to work

"Right to Work" is a very different concept that has to do with union membership. A "right-to-work" law is a state statute that prohibits union security agreements between labor unions and employers. Generally speaking, they forbid union "closed shops". A closed shop is one in which union membership is required for employment if your job is covered by an existing collective bargaining agreement between the employer and employees. In a right-to-work state, a union can be elected to represent the workers but the workers cannot be required to join the union or pay union dues.

That sounds pretty good to many employees at first, and right-to-work laws have gained traction as a result. The downside of such laws is that they dramatically weaken unions by effectively starving them of the funds they need to operate and organize. As a result, union membership in right-to-work states has dropped dramatically. Lower union membership has in turn led to a drop in workers' wages and damage to job protections for workers in those states.

Retaliation is the most frequently alleged basis of discrimination in employment cases and it's the most common discrimination finding by the EEOC. Federal and Texas employment laws prohibit punishing employees for asserting their rights to be free from employment discrimination, including EEO-based harassment. Asserting these EEO rights is called "protected activity," and it can take many forms. For example, it is unlawful to retaliate against employees for:

• Reporting discrimination or harassment to a manager or HR
• Filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
• Communicating with a supervisor or manager about employment discrimination, including sexual harassment
• Answering questions during an employer investigation of alleged harassment or discrimination
• Resisting sexual advances, or intervening to protect others from improper advances
• Requesting accommodation of a disability or for a religious practice

Participating in an EEO complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

It should be noted, however, that not all internal reports garner legal protection from retaliation. Reporting that your boss did something you feel is "unethical" surprisingly may not be a protected report unless the conduct was also illegal. Similarly, reporting harassment or bullying that is not based on an EEO category (e.g. sex, race, etc.) is most likely not protected activity. As surprising as it may be, it often is not illegal for an employer to retaliate against an employee for making such reports.

After reporting to HR about my manager with the company groping me, the HR representative filed no report and called the offender into the office to have him apologize to me. No other action was taken. Now I am being investigated and harassed at work and I don't understand why. What should I do?

While not every employer handles internal reports of misconduct this way, situations such as this are, sadly, something I hear about all too frequently from employees who come to see me. An employee follows the rules and does what he/she is supposed to do by reporting discrimination or harassment to HR, only to then be further harassed and retaliated against in response to the report. Often this retaliation comes in the form of management "keeping book" — noting every error or perceived mistake made by the reporting employee in an effort to build a record for termination. Sometimes the retaliation is much more severe. I have had cases in which employees were moved to a less desirable office location, passed over for promotions, accused falsely of misconduct, etc. Such a situation can make going to work seem almost unbearable. And in fact, this is often the goal of the employer — to make your work life so terrible that you feel you have no choice but to quit.

So what can an employee in this type of situation do? Here are some suggestions:

1. Document everything in writing. Your boss or HR representative might be saying all the right things, but those oral statements are easily forgotten once you have been fired and you are later trying to prove what was said. Your best bet: document everything in a way that is at least somewhat verifiable. If you need to report misconduct, harassment, or retaliation, do it via a written letter or email — and print yourself a copy and take it home for safekeeping. If you have an important phone call or meeting with HR or your boss, document it in a follow-up email in which you thank them for meeting with you and restate your understanding of what was said by both parties. Could HR later deny that your email correctly summarizes what was said? Sure. But everyone (including the jury) will wonder why they didn't reply to your email back when it happened to correct your summary.
2. Don't make unforced errors. You know they are watching every move you make just hoping you screw up so they can fire you. So don't help them. Don't be late to work. Do good work. Get your reports in on time. Don't gossip and tell co-workers what a big jerk your boss is. What if your boss doubles your workload to make it impossible to meet quota? This happens a lot. Don't let it make you so angry that you start acting out and thereby give the boss a legitimate reason to fire you. Instead, do the very best job you can, document the retaliation by emailing HR (keep a copy at home), and keep your boss informed of your status by regularly emailing (keep a copy). You are building the paper trail you and your lawyer may need later to prove you were trying to be a good employee under difficult circumstances.
3. Consider filing a charge with the EEOC and/or visiting with a lawyer. Know this: once retaliation starts, it rarely gets better on its own. If a boss is retaliating against an employee, it signifies a line in the sand — that boss has declared (perhaps only to himself or herself) that you have got to go. So don't beat yourself up when nothing you do to placate your boss seems to work. It may just be time to go outside for help. One choice is filing a "Charge" with the EEOC — note that the EEOC only deals with EEO types of issues (race, sex, religion, disability, national origin) and retaliation tied to a complaint about one of those categories. Another option is visiting with a qualified employment lawyer. If you have not been fired yet, your case might not be one a lawyer can take on a contingent basis, but most employment lawyers will agree to a fee-based consultation where you can get advice on your protections and next steps. Expect to pay between $100–$500 for an hour of the attorney's time. In the grand scheme of things, this is a good value for the information you will receive.

It is unlawful to discriminate against or harass a person because of that person's sex. But we often get the question: what type of harassment reaches the level of being illegal sexual harassment?

Illegal sexual harassment is any type of sexual behavior that is unwelcome and/or inappropriate for the workplace. Sexual harassment may include verbal harassment, such as dirty jokes or derogatory comments; visual harassment, such as the placement of embarrassing or inappropriate posters, drawings and cartoons; and/or physical harassment, such as sexual advances, sexual demands and unwelcome touching.

In the workplace, sexual harassment can come from the business owner, a supervisor, a manager, a foreperson, a co-worker or even a customer. Sexual harassment at a school is also illegal.

Both men and women can be the victims of sexual harassment, and both the victim and the harasser can be the same sex.

Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Sexual harassment can include any type of such conduct, including pornography, offensive jokes, sexual bullying, and repeated touching.

If you are being sexually harassed at work, it is important to take action to protect yourself and stop the harassment. Here are some steps you can take:

1. Document the harassment: Keep a detailed record of the harassment, including the dates, times, and specific details of the incidents. This will be helpful if you decide to take legal action or file a complaint with your employer.
2. Tell the harasser to stop: If you feel safe and comfortable doing so, confront the harasser and tell them that their behavior is unwanted and unacceptable. If the harassment continues, consider speaking to a supervisor or human resources representative.
3. Report the harassment: If you are unable to stop the harassment on your own, or if you do not feel comfortable doing so, report the harassment to your supervisor or human resources department. Be sure to provide as much detail as possible, including the dates and specific details of the incidents.
4. Seek support: It is important to take care of yourself during this difficult time. Consider seeking support from friends, family, or a counselor to help you cope with the situation.
5. Consider legal action: If the harassment continues despite your efforts to stop it, or if your employer fails to take appropriate action, you may want to consider consulting with an attorney and taking legal action.

Remember, you have the right to work in a safe and harassment-free environment. If you are being sexually harassed at work, it is important to take action to protect yourself and stop the harassment.

While headlines focus on famous men who lead prominent organizations, the majority of sexual harassment happens in ordinary office buildings by ordinary managers or workers who are insecure about their status in life, feel a need to rattle or dominate others to make themselves feel better, or see their colleague as a potential sexual gratifier.

Most employees try to ignore the behavior, at least at first, waiting to see if it will go away. Some clearly ask the harasser to stop. Others try to play along or laugh it off, unwittingly sending mixed signals of encouragement to the harasser.

The correct response, of course, is to report harassing behavior to a supervisor or human resources. A responsible employer will listen to the description of the events and then speak to the instigator. However, reporting sexual harassment is a difficult thing to do. Employees who are being harassed at work often feel alone and powerless. Will the report do any good? Will HR stand up for me? Will I be retaliated against? Will I lose my job?

The quality of corporate HR departments varies widely. Some will respond quickly and effectively to a complaint while others are ineffective and powerless to take real remedial action. Some HR departments have been created more to defend the company than to help employees. Regardless of the type of HR department in your company, however, it is in your interest to make an internal complaint. There are two primary reasons for this:

1. It gives the company knowledge of the situation and the ability to fix it; and
2. It is often required by law in order to preserve your right to bring a legal claim later relating to the harassment.

Steps to consider when opposing sexual harassment

• Say "No" clearly. Tell the person that his/her behavior is offensive and you want it to stop. Refuse all invitations in a firm and direct manner. If the harassment doesn't end immediately, ask the harasser to stop in writing (or email). Send a copy of the email to your personal email account so that you have a copy for your records.
• Document, document, document. Write down dates, places, times, and possible witnesses to what happened. If possible, ask your co-workers to write down what they saw or heard, especially if the same thing is happening to them. Keep the record at home or in some other safe place — do not keep it at work. Assume that everyone you speak to may try to deny what you said later. Keeping documentary evidence to prove what happened is key.
• Check your company's HR policies. Many employers have written policies and procedures for making and responding to sexual harassment complaints. Look for your employee manual or written personnel policies, and/or speak to someone in HR. At the very least, following your employer's complaint procedures will show that you did what you could to make the employer aware of the harassment.

When you are ready to make the report

• Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom.
• Don't sugar coat it. Now is not the time to be nice or to soft-pedal what happened. Be honest, be blunt, and be factual. Don't hold anything back because it is embarrassing or you feel ashamed. YOU did nothing wrong. Remember that.
• Maintain good records. That written report? KEEP A COPY. A written complaint does you no good if you send the only copy to HR. It might...you know...get lost.
• Go to the EEOC. If your complaint involves EEO-based (age, sex, race, religion, disability, color) discrimination or harassment, consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law, giving you a somewhat higher level of protection from retaliation than if you merely report internally.
• Lawyer up. If you feel you need to make a complaint against management then, make no mistake, your job IS at risk. Start looking for a qualified employment attorney who represents employees — before you need one. Employment law is very specialized and contingency fees are generally not available for consulting services, but if you find a qualified lawyer to advise you, it is money well spent.

Yes — badly. A case out of the Fourth Circuit Court of Appeals, McKinnish v. Brennan, No. 14-2092 (4th Cir. Nov. 6, 2015), serves as a stark reminder of the importance of utilizing an employer's internal sexual harassment reporting procedures if any are available.

In McKinnish, the employee received numerous sexually explicit text messages, photos, and videos from her supervisor over a ten-month period. She considered them to be harassing. But she never reported them to her employer as alleged harassment. McKinnish's husband eventually reported the messages to the employer after he discovered them. And the employer did the right thing and immediately terminated the supervisor.

McKinnish later sued and alleged hostile-environment sexual harassment under Title VII. The employer (the U.S. Postal Service) argued that her claims should be dismissed because they were subject to what employment lawyers call the Faragher-Ellerth defense. The court agreed.

What is the Faragher-Ellerth defense?

In 1998, the U.S. Supreme Court used two cases — Faragher v. City of Boca Raton and Burlington Industries, Inc. v. Ellerth — to create a defense for employers against sexual harassment claims. The defense applies when: (i) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (ii) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

In other words, if the employer has an internal policy providing a process for reporting, investigating and correcting incidents of sexual harassment, an employee must make use of that policy. If she fails to do so and the court determines that her refusal to utilize the internal process was unreasonable, she will lose her claim against the company.

Often, employees don't want to report sexual harassment internally because it is uncomfortable, because they don't believe HR really has their best interests at heart, or because they fear retaliation. That is exactly what Ms. McKinnish argued in her case. Sadly, the court rejected this argument, holding that an employee's "subjective fears of confrontation, unpleasantness or retaliation" do not alleviate the employee's duty to alert his or her employer to an allegedly hostile environment.

Bottom line: report sexual harassment

• If you are being sexually harassed, report it.
• Report it in writing (email is fine).
• Keep a copy (print the email).

Is it possible that in response to your report the company won't take any action or might even retaliate against you? Yep. But if that happens then a lawyer will be in a much better position to help you and the court will be much more likely to rule in your favor.

We get this question a lot. An employee's boss or coworker is bullying them and creating a totally toxic environment at work. Surely that's illegal, right?

Sadly, the answer is generally, "No".

It is not illegal for your boss or coworker to harass you unless it is done for an illegal reason. The law does not require that your boss or coworkers be nice, kind or fair. But such harassment might be illegal if it is based on an illegal reason or motive. The key under the law to determining if harassment or bullying behavior is illegal is that it's not the what, it's the why.

Your employer may not treat you differently because of your age, sex, race, religion, national origin, or disability. An employer also may not allow an employee to be harassed by a coworker or boss based on such an EEO category.

So, for example, say there is a workplace comprised of mostly men, with one lone female employee, and she alleges that her manager abuses, belittles, and harasses her. Is that illegal? I have a classic lawyer answer for you: it depends.

IF the manager also treats all of the male employees the same way as he treats the female employee, then it probably is not illegal. We call this type of manager an equal-opportunity abuser. And, while this type of behavior is terrible, it is not illegal. Why? Because the harassment and bullying is not based on the female employee's sex. The manager is just a jerk.

We get contacted every day by people suffering from managers who are rude and obnoxious and who harass, berate and bully employees. Sadly, this type of behavior does not equate to an actionable hostile work environment claim unless the harassment can be proven to be based on a protected EEO category, like sex, race, etc.

A covenant not to compete is a promise by an employee not to compete with his or her employer for a specified time in a particular place. A covenant not to compete, which is also known as a non-competition agreement, may be a clause in an employment agreement or a separate contract standing by itself.

In the past, Texas courts traditionally frowned on restrictions placed by employers on their employees' right to find and make a living. However, Texas courts have been showing increasing willingness to uphold noncompetes in recent years and will enforce a non-competition agreement if:

• the employer proves that it has a legitimate business interest to protect by restricting its employees' right to compete against it;
• the restriction on the employee's right to compete is no greater than that necessary to protect the employer's business interest; and
• the covenant not to compete is supported by appropriate consideration, meaning that the employee received something in exchange for it.

Whether the "consideration" offered by the employer is adequate to support a non-compete agreement is an extremely thorny issue. Under Texas law, money alone is not sufficient. Normally in order to enforce a non-compete agreement, an employer must agree to provide an employee with confidential business information or trade secrets and, in return, the employee promises not to improperly disclose or use the employer's sensitive information.

The area of non-compete law is extremely complicated and must be analyzed on a case-by-case basis. If you are dealing with such a situation, contact The McKinney Law Firm for a consultation.

In a word, yes.

As an employment lawyer, I spend a considerable amount of time reviewing severance agreements for clients. Severance agreements are often filled with complicated legal issues and can be challenging to understand and properly navigate. Besides the dollar value of the package, there are several types of clauses in most severance agreements that employees should be aware of. While situations differ as to how negotiable a severance agreement is in one case versus another, it is always advisable to have a board certified employment lawyer review the document with you so that, at the very least, you understand all of the ramifications of the agreement you are signing.

Clauses that clients often need assistance with

1. The severance payment: If an employee is already entitled to receive a severance payment, whether pursuant to an employment contract or company policy, there is no need to sign a severance agreement to get that money. An attorney can help ensure that if the employee does sign an agreement, it provides more than any severance payment the worker was already entitled to. An experienced employment lawyer may also have a sense of whether the amount being offered is within the usual range for the relevant industry.
2. Money the employee is already owed: An employer who owes an employee money — for earned but unpaid salary, commissions, unreimbursed expenses, etc. — must pay it regardless of whether a severance agreement is signed. Sometimes employers withhold payment of monies already owed in an effort to force an employee to sign a severance agreement containing a release of liability or other provisions the employer wants.
3. Benefits: A severance agreement should explain what benefits the employee will receive upon separating from the employer and deal with continuation of health care benefits (if applicable) or with COBRA notice requirements.
4. Release of claims: Employers usually want a full legal release from the employee as a part of any severance agreement. Several issues can crop up here, including the effect of the release on benefit plans and/or on existing claims (workers compensation, disability claims, etc.). This release will usually cover all claims regardless of whether the employee even knows the potential claim exists. So it is important to speak with an attorney so that you know if you actually have any claims and whether they should be released in return for the severance being offered.
5. Non-disparagement and references: Severance agreements often forbid employees from speaking badly about their employer even after they leave the company. Sometimes the agreement contains language dealing with how the company will respond to future inquiries regarding the employee from prospective employers.
6. Restrictive covenants & noncompete agreements: Many employees are bound by non-compete and non-solicit agreements created in employment contracts or other documents they have signed. Where these restrictions already exist, a lawyer should ensure that the severance agreement does not expand them. Where the employee has not already entered agreements on these topics, the attorney can work to limit the time and scope of restrictions the separation agreement imposes.

Summing up

These are just a few of the myriad issues that might need to be addressed as a part of a severance agreement review. If you are offered a severance agreement, it is important to hire an attorney to review it BEFORE you sign. But not just any attorney — just as you would probably not hire a real estate lawyer to defend you in a criminal proceeding, you should make sure to seek out an employment law specialist when hiring an attorney to review a separation agreement. An experienced employment attorney can help protect employees, including executives and professionals, from the risk of waiving rights unnecessarily or leaving severance money on the table.

Many types of discrimination claims must be processed through the EEOC's administrative process before a lawsuit can be filed in a court of law.

The United States Equal Employment Opportunity Commission, more commonly known by its initials, EEOC, was created as part of the Civil Rights Act of 1964 to enforce Title VII. Today, the EEOC is also responsible for enforcing other anti-discrimination laws like the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA), though the latter provides an independent cause of action in Federal Court.

Before filing a Federal lawsuit for discrimination or harassment, you must first file a charge of discrimination with the EEOC or its Texas counterpart, the TWCCRD. The EEOC then investigates the charge by asking both the employee, known as the Complainant, and the employer being charged, known as the Respondent, for documents and information relevant to the charge.

At the end of its investigation, the EEOC may do one of three things: 1) Close its file without completing the investigation; 2) Conclude that it was unable to establish a violation of the law; or 3) Conclude that there is substantial evidence of a violation. This last is sometimes called a "Cause Determination".

If the EEOC closes its file without completing the investigation, or is unable to conclude that discrimination or sexual harassment took place, it will issue a Notice of Right to Sue. The Complainant then has 90 days to file her case in Federal Court. Once that 90 days has passed the employee loses her opportunity to file in Federal Court. This is a very dangerous deadline and must be watched carefully. If you have received a Right to Sue letter, you must seek immediate legal representation if you wish to pursue your rights in court.

Unfortunately, the reality is that the EEOC is overworked and underfunded and, therefore, does not often make Cause Determinations. Importantly, the agency's failure to do so has absolutely no bearing on the strength of an individual's case. Many such cases are still filed in court, and it is possible to win or settle such a case even though the EEOC did not make a finding in your favor.

Navigating your case through the EEOC successfully

The EEOC process often takes well over a year to complete if you do not have a lawyer to assist you. After 180 days pass, you can end the investigation and request a Right to Sue letter from the EEOC. This allows you to file a lawsuit in court. However, once this Right to Sue letter is issued, you have only 90 days to file in court. So don't request this letter until you have a lawyer and are ready to move forward.

The best option is to contact our office before filing an EEOC complaint. We can explain to you what to write and what to do. The complaint is a critically important document. It spells out what you believe happened and why you think discrimination took place. The document is a sworn statement and great care needs to be taken in wording it properly to protect your rights.

Always be friendly and professional when dealing with the EEOC. Most of their investigators really do want to help. But their caseloads are large and they simply cannot be as responsive to charging parties as they would like to be. Getting frustrated or being uncooperative with the agency will not help you achieve your goals.

If you've filed an EEOC charge with the Equal Employment Opportunity Commission, one of the things that may happen is you'll receive an Invitation to Mediate. The document asks whether you're interested in voluntarily mediating your case with the EEOC's Mediation Unit. If both parties — the employee (charging party) and the employer (responding party) — agree to mediate their case, the EEOC will move it from their investigation unit to the mediation unit.

What is mediation?

Mediation is a process by which a third-party mediator who doesn't have a vested interest in the dispute sits down with both parties and tries to arrive at an agreed resolution or settlement to the EEOC charge. Mediation is voluntary, which means both parties agree to sit down and see if they can work out their differences. This is different from arbitration, which is typically binding and takes the place of a jury trial.

What happens during EEOC mediation?

Once both parties agree to mediate, the case is removed from the investigation unit, and the EEOC's Alternative Dispute Resolution (ADR) unit, also known as the Mediation Unit, contacts both sides to schedule a date for mediation. The mediation process starts with a General Session in which the mediator introduces themselves, explains the process, and gives both parties a chance to briefly explain the dispute from their point of view.

After the General Session, both parties are separated and kept separate for the bulk of the process. The mediator will go back and forth between the employee's and the employer's rooms doing shuttle diplomacy, trying to find common ground. The mediator will come into the employee's room and ask what the employer could do to resolve the dispute. This might include a payment of some amount of money if the employee was wrongfully terminated, or an agreement not to give a bad reference if a prospective employer contacts the employee.

If the parties are able to reach an agreement, it will be documented in a settlement agreement. The EEOC will prepare a document, and the parties may have a longer form document. Once the documents are signed, the funds will be provided to the employee if that was part of the settlement agreement, and the EEOC charge will be dismissed.

Do you need an attorney at EEOC mediation?

You are not required to bring an attorney to the mediation, but it is advisable to do so. The employer will likely bring an attorney, and just to protect yourself and ensure you're not taken advantage of during the process, it's recommended to bring an employment attorney with you if you can do so.

Short answer: IMMEDIATELY — or risk losing your case.

Some prospective clients are surprised to learn that most wrongful termination or sexual harassment matters that an employment lawyer handles cannot be taken straight to court. This is, unfortunately, true. Most cases having to do with discrimination or wrongful termination relating to an EEO category (age, race, sex, disability, etc.) must go through a required administrative process before a lawsuit can be filed. Even more confusing is the fact that you may have more than one administrative agency to choose from when deciding where to file. This administrative process and the choices that must be made early on in your case are among the best reasons to consider hiring a lawyer earlier rather than later.

What types of cases must be filed administratively?

If your case involves potential claims for discrimination or termination based on an EEO category (age, race, sex, disability, religion, etc.) then you probably need to file administratively. Claims for sexual harassment or retaliation for making a complaint or participating in an investigation of an EEO-related matter also must be filed administratively.

When do I need to file?

The limitation periods for these types of claims vary depending on numerous factors but they are all short. In many states you will lose your right to pursue an action if you don't file a Charge with the EEOC within 180 days of the event or occurrence you are complaining about. If you are a federal worker the deadline can be as little as 45 days. These are hard, fixed deadlines. There is no extending them because you had a good reason for delay. In many states, you only have 180 days to file a charge with the EEOC or lose your right to sue FOREVER, no matter how blatant the discrimination.

Where do I need to file?

The default place to file your discrimination, sexual harassment or retaliation Charge is with the Equal Employment Opportunity Commission. They have offices in most metropolitan areas — learn more at eeoc.gov. You can also file a Charge by contacting them by phone at (800) 669-4000 (be prepared to wait an hour or more). However, depending on where you live, it might be better to file with a state or city agency that has a work-sharing agreement with the EEOC. Contact an employment lawyer near you to help you decide what is the best course of action in your area.

What is the process?

Filing a Charge is relatively easy once you arrive at the agency's offices. You fill out a short form and then meet with an investigator who will complete the Charge documents for your signature. Each field office has its own procedures for appointments or walk-ins so check the website or call ahead for best results. It is always helpful to bring any information or papers that will help the investigator understand your case — for example, the letter or notice telling you that you were fired, your performance evaluations, and the names and contact information of people who know about what happened.

Important: Keep in mind that the EEOC (and similar state agencies) can only investigate issues having to do with terminations and/or discrimination relating to EEO issues or retaliation for having made a complaint regarding EEO issues. They don't investigate overtime or other pay issues and cannot help you if your termination is just because "my boss was mean." Your issue must be EEO-related.

What happens next?

Once you have filed a Charge you may be invited to mediation — a voluntary process where the two sides sit down with an EEOC mediator for free to see if they can work out their differences and reach a pre-suit settlement. It is an excellent free service that the EEOC provides and I highly recommend it for most cases. Keep in mind, however, that you will benefit from having a lawyer with you at a mediation unless your case is so small that you wish to settle it for very little money. If your case is worth more, having a good lawyer will typically enhance the value of your case by more than you will end up paying in fees. See How do EEOC mediations work? above.

If the Texas Workforce Commission (TWC) disqualifies you from receiving unemployment insurance benefits on a prior claim because of the reason for your job separation or for other reasons, you may be able to close the disqualification through work or wages after you do all of the following:

1. Go back to work in "employment" after your disqualification begins;
2. Earn wages equal to six times your weekly benefit amount or work at least 30 hours a week for six weeks;
3. Give the TWC proof of your work or earnings and request that they close the disqualification.

To receive benefits after closing a disqualification, you must have a qualifying separation from your last job or fulfill the work and earning requirements described above while you are working at a part-time job.

The TWC will not pay you benefits for the time between the beginning of the disqualification and the time that you meet the requirements to close the disqualification.

You can use work or wages from most types of "employment" to close the disqualification. However, the Texas Unemployment Compensation Act excludes several types of employment from its definition of employment for the purposes of removing a previous disqualification. These include:

• Working in domestic service, if the employer pays less than $1,000 in wages during a calendar quarter for all domestic services;
• Working for yourself;
• Working for your son, daughter, or spouse;
• Working for a church; or
• Working as an insurance agent paid only by commission.

We are frequently asked questions involving overpayment of unemployment benefits from the Texas Workforce Commission (TWC).

What is an overpayment?

An overpayment happens when the TWC pays you unemployment benefits that you were not eligible to receive. You must repay benefits that you are not eligible to receive.

Why do I have an overpayment?

The TWC will mail you a Decision on Payment of Unemployment Benefits explaining why you have an overpayment, what weeks were overpaid, and the amount you must repay. Examples of what can cause an overpayment include:

• Not reporting earnings or reporting the incorrect earnings amount when you request payment.
• Giving false information about your job separation or work search.
• Having your eligibility for benefits reversed due to an appeals hearing after receiving benefits.

Must I repay an overpayment?

Yes. You must repay all of the overpayment before the TWC can pay you any additional benefits. If you are requesting benefits, continue to submit bi-weekly payment requests. The TWC will apply each eligible payment toward reducing your overpayment. Don't stop submitting payment requests — the credit will only be applied if you continue requesting payment normally.

If you are no longer requesting benefits and cannot repay the entire amount at once, you can call the TWC at (512) 936-3338 and they will usually work with you to set up a repayment plan.

Why should I repay an overpayment?

• The overpayment stays on your claim record until repaid in full.
• The TWC will keep any future benefits until your overpayment is repaid.
• While it is not done in every case, the TWC has the authority to take legal action against you to recover the money, including suing you in a civil court.

Do overpayments from other states affect me?

Yes they can. If you have an overpayment in another state, the other state may ask the TWC to send your benefits to that state until the overpayment is paid. If you have an overpayment in Texas and receive benefits from another state, the TWC can ask that state to recover the money for the TWC.