Common questions, answered on camera.

Hi everybody, this is Texas employment lawyer, Chris McKinney, of the McKinney Law Firm. We help employees with employment law issues in San Antonio, Austin, and all over Central Texas. And today we're talking about age discrimination. A viewer recently wrote in to ask, "How can I tell if my termination was actually age discrimination?"

That's a great question. Because very often it is difficult to tell. Age Discrimination Law is controlled by statute. It's called the Age Discrimination in Employment Act, or the ADEA for short. That law protects employees who are 40 years old or over from discrimination based on their age.

But if you've been fired and you think it's because of your age, how can you tell for sure? Usually, your boss isn't going to flat out tell you "I think you're too old for the job." It happens. I've seen it. But it doesn't happen very often. So what are the other types of evidence that we look for in order to prove an age discrimination case? Here's three different types.

1. Age-related comments by the decision maker (or decision makers, if there's more than one). Common examples would be asking when an employee's gonna retire or making offhanded jokes about how old the employee is.
2. How the employee is treated compared to similarly-situated younger employees for the same or similar conduct. For example, being pressured or written up for performance issues, when younger employees aren't being written up or pressured for the same types of purported performance problems.
3. Who replaced the employee. If an older employee is replaced by someone who is substantially younger and who has much less experience, that might be indicative of age discrimination.

So all of these are examples of circumstantial evidence that a court or a jury will look at to decide if a termination was indeed because of an employee's age.

Hi everybody, this is Texas employment lawyer, Chris McKinney. Today, I wanna talk to you a little bit about employment retaliation — and, more specifically, what kind of workplace retaliation is actually illegal. We get calls from potential clients and employees who have questions about, "Hey, I'm being retaliated against at work because I reported my boss for something, or because I took a particular action or stood up for myself. And I think maybe I have a cause of action — do I or not?"

In order to answer that question, we really need to get to the why of why someone was being retaliated against, because not all types of retaliation are actually illegal. Specifically, was the employee being retaliated against for what we call a protected activity? If you just report your boss because your boss is being a jerk, that's probably not a protected activity by statute. If you are reporting something that you consider to be unethical, but it's not really illegal, then that's probably not a protected activity. And a lot of employees have difficulty with this because it seems terribly unfair — and indeed it is. But very often, what is unfair or morally wrong simply isn't illegal in the workplace.

So let's talk about what types of things actually do qualify as protected activity. Typically, the type of conduct that is protected is making a report to a management-level employee or to HR that either you or someone you know is being discriminated against in the workplace due to an EEO category — because of their race, national origin, sex, religion or disability. Those types of reports are definitely protected activity. Another common protected activity is participating in an internal investigation of a report of EEO-based discrimination, whether it's your report or someone else's. Your participation in that — being interviewed by HR, giving truthful answers even if they're bad for management — that's protected activity.

In those cases, if the company retaliates against you — typically by firing you, although demotions and other negative conduct that hurts your standing in the workplace can also be actionable — then yes, you may have a valid retaliation claim. Other types of retaliation claims involve, say, taking FMLA leave, and the manager didn't like it, so as soon as you get back you're written up and shown the door. That can be actionable retaliation.

The last type is reporting actually illegal conduct inside the workplace. Texas has some very narrow whistleblower protection for public employees for reporting certain types of illegal conduct. For private employees, if you work for a large publicly traded company and you report certain types of fraudulent illegal activity — like false accounting or stock reports — and you're terminated for that, that can be actionable retaliation. There are also a number of statutes that protect specific types of employees, such as healthcare workers who report that someone in their facility's care is being mistreated. There are statutes like this covering everything from transportation and trucking to healthcare and nursing.

So it's important, if you believe you're being retaliated against because you have reported illegal conduct, that you visit with an employment lawyer as soon as possible to find out if the retaliation you are suffering may be illegal — and if you're still working for the employer, whether there's a way to protect yourself.

Hi everyone, this is Texas Employment Rights Attorney, Chris McKinney. Today, we're talking about the EEOC Mediation Process. After you file a charge, one of the things that happens is the agency sends you an Invitation To Mediate. All this document is asking is whether or not you would be interested in voluntarily mediating your case with the EEOC's Mediation Unit. If both the charging party (the employee) and the responding party (the employer) agree to mediate, the EEOC will take that Charge of Discrimination out of their investigation unit and move it over to the mediation unit.

Mediation is essentially a process by which a third-party mediator who doesn't have a dog in the fight sits down with both parties and tries to arrive at an agreed resolution or settlement to the EEOC charge. Some people confuse mediation and arbitration — these are two very different concepts. Mediation is a voluntary process by which both parties agree to sit down and see if they can work out their differences. Arbitration is something the parties usually enter into by contract, and it takes the place of a jury trial. A mediation through the EEOC is completely voluntary: if you can't reach an agreement, you're free to just get up and walk away, and the charge goes back to the investigations unit. In that sense, it's a very low-risk procedure.

So what happens in an EEOC mediation? The mediation unit — also known as the ADR (Alternative Dispute Resolution) unit — contacts both sides and schedules a date. To start, all sides meet together in a General Session, where the mediator introduces himself or herself, explains the process, and gives both sides a chance to briefly explain the dispute from their point of view. After that, the parties are separated and kept separate for most of the rest of the mediation. The mediator goes back and forth between the employee's room and the employer's room doing shuttle diplomacy — asking what the employer could do to resolve the dispute. That might be a payment of money if you believe you were wrongfully terminated, or agreeing not to give you a bad reference.

A mediation is a creature of agreement, so there is a lot of freedom to agree to whatever terms are important to you — sometimes you can get things through mediation that you can't get in a courtroom. These mediations typically last at least half a day and can last a full day. If the parties reach an agreement, it will be documented in a settlement agreement. Once the documents are signed, the funds will be provided to the employee (if that was part of the deal), and the EEOC charge will be dismissed.

Do you need to bring an attorney? Technically no — you are not required to, and many people represent themselves. But the employer more often than not will bring an attorney, and if they don't, they will certainly have consulted one before sitting down. So to protect yourself and make sure you're not taken advantage of in the process, it is advisable to bring an employment attorney with you if you can.

Hi everyone, I'm Texas employment rights attorney Christopher McKinney, practicing from our offices here in San Antonio, Texas. Today we're covering another video in our series about the Equal Employment Opportunity Commission and how you go about properly filing a Charge, initiating an investigation, and seeing it all the way through to the Right to Sue letter.

The EEOC charge document

When you go to file an EEOC charge — either with the EEOC by meeting with an investigator, or with the help of qualified employment counsel — you'll be asked to complete the charge document. It's fairly straightforward, but it is important that you get all of the information correct. It asks for basic contact information about you and the employer, has checkboxes indicating what type of discrimination or retaliation you are reporting, and the dates — which are very important to get accurate. Then there's a relatively short section for what they call the particulars, where you factually describe the facts of your complaint. The EEOC generally likes to keep this document short and to the point — this is not the place for a multi-page outline of every fact.

It is particularly important to get this document accurately describing the discrimination you are complaining of, because this document controls not only the scope of the EEOC investigation but also the scope of any lawsuit that you file later. You also sign it under penalty of perjury — another reason it's vitally important to get the facts stated correctly.

That charge document is then sent to the employer, which will generally have an opportunity to respond in what's called a statement of position. Sometimes the assigned investigator will send one side or the other requests for additional information. Respond as timely as you can, but understand that anything you send to the EEOC is likely to be shared with the employer — you may want to confer with your attorney about what should be submitted and in what form.

The Invitation to Mediate

Once you have the charge on file, the EEOC will send you an Invitation to Mediate — asking whether you're willing to participate in the EEOC's voluntary mediation program. Just because you agree does not mean your case will be mediated: both sides have to agree. There's a certain amount of strategy involved in whether and when you want your charge sent to the mediation unit, because your charge is typically pulled out of investigations while it's in mediation.

Then... waiting

Assuming the case doesn't go to mediation, the next step is typically waiting. If you leave your charge with the agency to complete its investigation, it is not unusual for that to take a year or more. But after your charge has been on file for six months, the agency loses its exclusive jurisdiction — you can contact the EEOC and ask them to close the investigation and issue a right to sue letter, which allows you to file a lawsuit. Be very careful about asking for that: once you get the letter, you typically have only 90 days to file your claim in court, or you waive your claims forever. It's advisable not to request it until you've retained counsel and your lawyer is prepared to file.

Hi, everyone, this is Chris McKinney, Texas employment rights attorney practicing here in San Antonio, Texas and throughout Austin and the Hill Country. On today's video, we're talking about the who, why, what, where, when of the EEOC.

Who and where?

The EEOC stands for the Equal Employment Opportunity Commission. That's the federal agency that investigates claims of discrimination based on EEO categories — age, gender, race, national origin, religion, and disability — as well as claims that individuals have been retaliated against for reporting discrimination or for having been part of an investigation. That agency has a counterpart in many states and cities. Here in Texas, its counterpart is the Texas Workforce Commission Civil Rights Division. The two agencies work together under a work-sharing agreement, so you can file with either and they will effectively cross-file your charge with the other agency.

Why do you need to know about this agency? Very simple: if you intend to pursue a claim of discrimination or retaliation, you can't simply go straight to court. You're required to file that type of claim with the EEOC or a state counterpart agency first. If you don't, you won't be able to file a lawsuit based on those claims.

What and how?

You file a document the agency calls a charge of discrimination — a specific form with several required pieces of information about you and the employer, and a small amount of factual information regarding the nature of your claim. You don't have to have a lawyer to file: you can go to eeoc.gov and fill out forms on the website, though after that you may wait weeks or even months for an appointment with an EEOC investigator, who will then prepare the formal charge document for your signature. The other way is to retain an attorney to help. An employment attorney can typically help you fill out and file your charge much quicker, and can make sure you've dotted all the Is and crossed all the Ts — which matters, because your later lawsuit will be limited by what was in the charge.

When?

The short answer: as soon as possible. Here in Texas, if you're filing under federal law, you have up to 300 days from the event you're complaining about. If you want to file under state law with the Texas Workforce Commission, you only have 180 days to preserve those state law claims. 180 days is not much — that's six months, and it's very easy to accidentally let that slip by. If you think you have a potential claim, move swiftly.

Why does the choice matter?

State law and federal law differ — they're not exactly the same with regard to all employment claims. There may be certain advantages or types of damages that are only available in one and not the other. It can get complicated, which is another reason to talk to an employment lawyer. But the bottom line is: if you move quickly and file your charge within 180 days, you will have done everything you can to preserve all of your options down the road.

Is workplace bullying illegal? Hi, I'm Texas Employment Rights Attorney, Chris McKinney. And today we're talking about bullying in the workplace and whether or not it's illegal. It's a question that we get quite often. And the answer is: it depends. It depends not on the type of bullying, but on the reason for the bullying.

In the workplace, as a general rule, bullying and bad conduct is not illegal. However, if you're being bullied by a boss, or sometimes by a coworker, and the reason for the bullying is due to your membership in an EEO category, then that type of bullying or harassment might be illegal. So, for example, if you're being sexually harassed, or if you're being harassed because you're a male or because you're a female — even if the harassment doesn't have a particular sexual component to it — that might be illegal harassment. You see this very often in workplaces in which the workers are predominantly of one gender or the other.

But sex is not the only way that harassment or bullying can be illegal. If you're being harassed or bullied because of other EEO category memberships — your race, your religion, your national origin, or a disability — that might be illegal bullying or harassment.

But what about the case when your boss is just a jerk, or you have a coworker who's just a terrible person and nasty to everybody, but not particularly because of your membership in a particular EEO category? In those cases, sadly, that type of bullying or harassment probably is not illegal.

Still, if you have any questions about it, reach out to a qualified employment lawyer. We talk to people every day about questions involving employment law and their rights in the workplace.

What is employment at will and how will it affect my wrongful termination claim? Hi everyone, I'm Chris McKinney, Texas employment rights attorney. Very simply, employment at will is the legal concept — held to in almost every state in the United States — which says that an employer can fire an employee for any reason, no reason, or even a bad reason, even an unfair reason. And likewise, an employee generally can quit a job for any reason, no reason, or a bad reason.

So what does that mean if you feel you've been unfairly fired? We get calls like this all the time from people that have, frankly, terrible bosses and have been fired for demonstrably unfair, terrible reasons — but they're not illegal reasons. And therefore there's nothing the law can do to prevent an employer from terminating an employee for that reason.

So what types of reasons are illegal? Those are generally things that have been set up by statute, by our state and federal legislatures. An employer can fire an employee for any reason it wants, unless the reason has been statutorily prohibited by law. Some easy examples are anti-discrimination statutes: an employer is not allowed to terminate an employee for discriminatory reasons, such as those based on race, sex, age, pregnancy, disability or religion. Likewise, an employer is not allowed to terminate an employee in retaliation for having made a report of discrimination for one of those reasons. And there are certain types of whistleblower statutes: if an employee has made a report of certain types of illegal conduct, those terminations would be illegal as well.

If you've dealt with a termination that you think might have been wrongful, you need to speak with a qualified employment lawyer as quickly as possible. And this isn't any joke — the statutes of limitations, the period of time that an employee has to seek legal redress for an illegal termination, can be shockingly short. Sometimes as short as 60 days from the time of the termination until a claim needs to be filed with an administrative agency or a court. Not all statutes are that short, but many are shorter than you think — some are 60 days, some 180 days, some 300 days. The bottom line is: if you truly believe you have a legally actionable wrongful termination case, it's not something to wait on.

Hi everyone, I'm Texas Employment Rights Attorney Chris McKinney, and today we're talking about the Family and Medical Leave Act, or the FMLA. The FMLA provides for up to 12 weeks of unpaid medical leave to certain employees for certain types of health-related issues. So are you covered? In order to answer that question, we need to look at issues concerning the employer, the employee, and the reason the medical leave is needed.

The employer. The FMLA was designed primarily to apply to medium and larger size employers. An employer must have at least 50 or more employees that work at or within 75 miles of the work site where the employee in question works, in order for that employer to be covered by the FMLA.

The employee. The FMLA only applies to employees who have worked for the employer for at least 12 months, and for at least 1,250 hours during the last 12 months. So even if you've worked for an employer for five years, if you're part-time and don't work at least 1,250 hours in the last 12 months, you will not qualify for FMLA leave.

The reason for the leave. The FMLA provides 12 weeks of unpaid medical leave for reasons related to serious health conditions, such as the birth or care of a newborn, an employee who is unable to work due to his or her own serious health condition, or an employee who needs to take time off to care for the serious health condition of an immediate family member — meaning a spouse, child, or parent. There are some other types of leave that may qualify for FMLA protection, but these are the most common.

If you think you qualify for FMLA leave and you need to take a medical leave, make sure you discuss it with your employer. Make a request for FMLA leave directly, and if you can, do it in writing or by email and keep a copy at home, so there's no question you actually made the request. The employer very possibly will ask you to fill out some forms and/or have your doctor fill out medical forms as well. Comply with those requests as quickly as possible.