How Do I Know If I Was Discriminated Against Based on Age? - San Antonio Employment Lawyer

San Antonio Employment Law Attorney Chris McKinney discusses what proof is needed to prove age discrimination against a Texas employee.

Transcript:

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 I 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. The first type is age-related comments by the decision maker or the decision makers, if there's more than one. Common examples with of this would be asking when an employee's gonna retire or making offhanded jokes about how old the employee is. That sort of thing.

2. Another type of evidence is looking at how the employee is treated compared to how similarly-situated employees who are younger are treated 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. And another type of evidence that we commonly look at is who replaced the employee. If an employee is 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.

Age Discrimination Against Younger Employees? - San Antonio Employment Lawyer

San Antonio Employment Lawyer Chris McKinney discusses whether younger employees are protected by age discrimination laws.

Can I Collect Unemployment If I'm Fired For Refusing COVID Vaccine?

San Antonio Employment Law Attorney Chris McKinney discusses whether employees in Texas are eligible for unemployment benefits if they are terminated due to their refusal to take the COVID-19 Vaccine.

___________________

Read the TWC’s Letter to Employers

Transcript:

Hi everybody. This is Texas employment lawyer, Chris McKinney. Today, I want to talk to you about a question that we're getting quite a lot from Texans all around the state regarding the implications of COVID mandates and whether or not employees be eligible for unemployment, if they lose their job due to their refusal to accept the COVID vaccine. The Texas workforce commission has issued an opinion letter today, and we're gonna get into it now, importantly, we're not talking today about the propriety or the effectiveness of the COVID vaccine. That's beyond the scope of this video. So I'm not here to tell you whether you should or should not get the vaccine or whether employers should or should not require it. What we're talking about today is solely the issue of how will losing your job as a result of refusing the COVID vaccine affect your ability to you obtain unemployment in Texas.

Okay. So let's talk about that, but before we do go ahead and like, and subscribe the video, if you find this type of information helpful as it sure helps more people find us. Okay. So the as you know, there are dueling vaccine requirements going on in Texas right now, the governor of Texas has issued an order that's executive order, GA-40 requiring that employers not Institute any vaccine mandates in the state and that if they do that, they don't enforce them against those who have who raise any type of religious or medical exemption issues that ruling or that order by the governor is dueling with, of course, the federal orders that are coming out of multiple federal agencies as well, as straight from the desk of the president requiring certain employers to into Institute vaccine mandates or alternatively to require weekly testing.

So as to whether whose mandates are going to win out, ultimately that's going to be thought out and decided in the courts. And we don't have an answer to that yet, but just today, let me share my screen with you just today, Texas workforce commission or I guess it was issued yesterday, but sent out today issued a opinion letter to employers across the state regarding whether or not they should issue vaccine mandates. If they do have mandates, how that would apply to unemployment claims. Now they outline the governor's order and discuss that the governor is telling employers that they should not issue mandates. You know, some, some attorneys question whether or not that's enforceable or not, there certainly isn't a private cause of action. So you can't Sue your employer yet for having a, for violating this, the governor's vaccine anti-vaccine mandate as it were however, in the letter they do go on to state fairly clearly here that it is unlikely that a claimant will be disqualified from receiving unemployment benefits.

If the separation is caused by the employee's failure to receive the COVID 19 vaccin vaccination, now they do put an important caveat in there. They say, although each individual case is different that leaves them some wiggle room for the Texas workforce commission to decide that certain employers in certain contexts, perhaps medical related, I'm not sure they don't really say that there might be some situations in which yeah, it really is legitimate to require vaccination because of the types of work that the employee is going to be doing. We just don't know how that's gonna play out yet, but it does appear that the TWC is taking the general position that if one raises a religious exemption issue or a medical exemption issue, and the employer does not honor that and terminates the employee anyway, then that employee will likely be eligible to receive unemployment benefits. If you have any more questions about this issue or other employment related issues, feel free to visit our website@themckinneylawfirm.com. We have a lot of great information there.

Employment Lawyer Chris McKinney Answers the Question: What Kind of Workplace Retaliation is Actually Illegal?

San Antonio employment lawyer Chris McKinney explains what types of employment retaliation are actually illegal.

Transcript:

Hi everybody, this is Texas employment lawyer, Chris McKinney. Today, I wanna talk to you a little bit about employment retaliation. Retaliation at work and, more specifically, what kind of workplace retaliation is actually illegal. We get calls from potential clients and just employees who have questions about, "Hey, I'm being retaliated 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? So, 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? So 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, more often than not, the type of conduct that is protected is making a report to a management level employee or to HR that either you or someone that you know is being discriminated against in the workplace due to an EEO category, because of their race or because of their national origin or because of their sex or because of their religion or disability, that type of thing. 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 to HR, even if they're bad for management, that's protected activity. So in those cases, if the company retaliates against you, typically by firing you, although that's not the only type of actionable retaliation, demotions, and other types of negative conduct that hurts your standing in the workplace can be actionable retaliation. But typically it's a termination is what we're looking at. If the company terminates you for taking that type of protected activity, 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 that you took FMLA leave and so as soon as you get back from FMLA leave, all of a sudden you're written up and shown the door and terminated for taking that family and medical leave. That can be actionable retaliation. The last, most common type, and perhaps not as common as the others, is reporting EE actually illegal conduct inside the workplace. Texas has some very narrow whistleblower protection for public employees, not for private employees, for public employees for reporting certain types of illegal conduct. What types of illegal conduct, are a little bit beyond the parameters of this video, we'll talk about that in an upcoming video. Another, for private employees though, if you work for a large publicly traded company, meaning that the company is so big, it has stock on the stock market and you report certain types of fraudulent illegal activity, like making false reports on accounting reports or on stock reports, that sort of thing, and you're terminated for that, that can be actionable retaliation. There are also a number of statutes that provide protection for specific types of employees, such as healthcare workers who might report that someone within their facilities care is being mistreated medically, or harmed, and the company retaliates against them for that. That can be an actionable type of whistleblower retaliation. And there are a number of these types of statutes from everything from transportation to trucking, to healthcare, nursing, physicians, that sort of thing. So it's important if you believe that you're being retaliated against because of some illegal conduct or because you have reported illegal conduct that you visit with an employment lawyer as soon as possible to find out if the retaliation that you are suffering may be illegal. And if so, if you're still working for the employer, is there perhaps a way for you to protect yourself? If you have any questions, feel free to give us a call, our contact information is in the information below, you can... The easiest way to get to us is through our website. We're happy to speak with you and look at your potential matter. We do it every single day for employees all over the state of Texas. If you found this information helpful, please like and subscribe the video. That helps spread the video around through the magic of the algorithm and helps other people find us who might be having similar problems. Thanks a lot for watching. We'll see you next time, bye-bye.

Employment Lawyer Chris McKinney Explains New OSHA Vaccine Mandate

San Antonio employment lawyer Chris McKinney explains OSHA’s new employer mandate requiring vaccinations of all employees. The new rule goes into effect in January 2022. Here are the details.

---

Transcript:

- Hi everybody. This is Texas employment lawyer, Chris McKinney. And I want to talk to you today about a new rule that has been issued by OSHA, the Occupational Safety and Health Administration, regarding COVID testing. We're getting a lot of calls about this new rule, and so there's a couple of things that I want to make sure all employees know about how the rule will work, if it's implemented, as it is currently drafted. Now, the new rule was issued just this week, and it is scheduled to go into effect in January of 2022. Under this new rule, all employers who have more than 100 employees will be required to mandate that all of their employees either become vaccinated against the COVID-19 virus or agree to a weekly testing regime to test to see if they're infected or not. So, one of the things that's important to remember under this new rule is that employers don't have any choice in the matter. They're being required by the government to make sure that all of their employees are either vaccinated or tested. So it doesn't do any good to become angry with your employer over this rule, because the employer really doesn't have any choice in the matter. So that's one thing to keep in mind. Secondly, and I see a lot of confusion about this, it's important for employees to understand that they are not required under this new rule to become vaccinated. Let me repeat that. Employees are not required to become vaccinated by this new rule. Instead, their employers will mandate that they either become vaccinated on the one hand, or on the other hand, that they agree to a weekly testing regime where they go in and get a COVID test every week, just to make sure that they don't have the virus. So that's a very important point. Right now, we've been going through a period where employees who don't want to take the vaccine for whatever reason have been trying to fit within just a few types of exceptions that are currently available under the law, one being a religious exemption, and the other being a medical exemption. Well, there's a lot of people who maybe don't want to take the vaccine, because maybe they don't think it's scientifically proven, or for whatever reason, but they don't really clearly fit within either of these two rather narrow exemptions. Under this new rule, employees are actually given some cover for this issue, in that while it does seem like more vaccination is being required under the rule, and indeed it is, employers are being required to mandate this vaccination or testing regime, it is providing a specific carve out for any employee that for any reason, doesn't want to take the vaccine. You don't need to fit within any special type of exemption. You just need to ask for it, and then your employer will be required to allow you to avoid becoming vaccinated, and instead you'll just need to go get a COVID test once a week and present those results to your employer. Last important point to remember with this new rule, assuming it's implemented is it's currently drafted, is that employers will be required to provide some paid sick leave time for those that are getting the vaccine, and if there's any health effects following the vaccine, if you're sick for a day or two, that sort of thing, then employers will be required to provide paid PTO for employees who are getting the vaccine. Importantly, however, employers are not going to be required to pay for COVID testing for any employees who decide to opt out of the vaccine requirement and into the testing requirement instead. In those cases, the cost of the weekly COVID testing will be born by the employees. So that's something important to know. Obviously, if there's any changes in the rule, we will keep you updated here on this channel. So please don't forget to like and subscribe. That way you'll be notified if we provide any additional updates. It also helps people find us, and we appreciate that very much. So until next time, take care.

Can my employer force me to wear a mask now that the CDC has dropped the requirement?

San Antonio Employment Law Attorney Chris McKinney discusses the new CDC mask guidelines and how that affects employees in the workplace.

Is It Illegal for My Boss to Be a Bully?

San Antonio Employment Law Attorney Chris McKinney discusses a common question: Is it illegal for my boss to be a bully?

EEOC Pt. 4 - End of the EEOC Process and Issuance of Right to Sue

What happens at the end of the EEOC investigation process?

Transcript:

Hi everyone. This is Texas Employment Rights Attorney Chris McKinney. And today we have another video in our series about the equal employment opportunity commission or the EEOC.

In today's video, we're going to be talking about the end of the EEOC process. We've already talked about the nuts and bolts of filing a charge, what you might expect after filing a charge in the investigation process. And we've discussed the mediation process that sometimes occurs during the EEOC timeline. So you can learn more about all of those parts of the EEOC investigation process by clicking on the links below to those videos in the series.

Today we're gonna be talking about the end of the process. What happens when the EEOC is done with its investigation? And this can happen one of two ways either the EEOC completes its investigation on its own, or alternatively, the charging party — that's typically the employee — asks that the EEOC to discontinue its investigation, to close it and to issue closing papers for the investigation. Now, the charging party can do this anytime once the charge of discrimination has been on file with the EEOC for six months. The investigation probably won't be done within six months but after six months, if you have your ducks in a row maybe you've retained counsel, and you've decided that you're ready to go to court.

If that's the next step in your process then you can actually force the EEOC to go ahead and close its investigation in issue you what's called a right-to-sue letter, more about that in a minute. But if the EEOC is simply going about its business and you're allowing it to continue its investigation at some point the EEOC is going to send you what's called a predetermination letter. Now in a predetermination letter the EEOC will give you some insight into what its initial findings have been in the course of its investigation. And it will ask you to respond. If you have any additional information that you think might affect the agency's investigation before it makes its final decision.

In some, some districts, the agency will also issue you a copy of the employer's statement of position. That's the document in which the employer states why it doesn't believe it has done anything wrong. And some EEOC districts will send you a copy of that. And so that you have an opportunity to respond to that, either way, once that process is over then the EEOC will issue, what's called a right-to-sue letter.

And this is what a right-to-sue letter looks like. It's a very simple one page document which states some basic reasons why any EEOC investigation is being closed. One of those is you'll see in this document is because more than 180 days has passed since the filing of the charge. And so the EEOC is terminating the charge. Now that may be because the charging party has requested that the EEOC terminate the investigation. Sometimes the agency will also terminate its investigation prior to completing it. If it determines that it's unlikely to complete the investigation within a reasonable timeframe and unfortunately given staffing issues at the EEOC this happens a fair amount of the time.

So this notice of a right-to-sue letter is essentially the charging party's ticket to file a lawsuit. If that's what he or she chooses to do in most types of discrimination cases you cannot simply file a lawsuit in state or federal court. Instead, you must go through this EEOC investigation process and get that right-to-sue letter before you can then file your case in court. Now, one more thing I wanna show you on this, right-to-sue letter. And that's this provision right here regarding the EEOC closing your case. Do you see where they say that you only have 90 days in which to file your lawsuit under most of the statutes that the EEOC investigates, once a right-to-sue letters issued, that starts a very short timeline and you have 90 days in which to file your lawsuit. Therefore, it's very important that if you plan on retaining counsel and filing a lawsuit, in your case you need to have that lawyer lined up and retained prior to getting your right-to-sue letter. Once you have a right-to-sue letter that 90 day timeline starts ticking and it could be very difficult for you to retain counsel in that short time period.

One other thing to keep in mind is that once the EEOC has issued a right-to-sue letter the charging party then has the ability to ask the EEOC for a complete copy of its entire investigation file. Now, the EEOC will occasionally redact out certain names excuse me, certain information including witness names and things that it considers to be confidential or subject to privilege. But for the most part the charging party is gonna get an entire copy of the investigation file. This can be very useful to you and to any attorneys that you're attempting to hire because it'll allow you to see what the employer's story was during the investigation process. So your attorney can assess how strong your case is but the number one thing to remember at the end of the EEOC investigation process is, is the timeline is very short. So it's best not to wait until the end of the investigation in order to retain counsel, if at all possible try to have an attorney lined up before you get that right-to-sue letter because once you get it, the clock starts ticking and you have 90 days to file your lawsuit. Or you might, you may be waving your claims forever.

I hope this video is helpful. Again, we'll put links to the other videos in the EEOC series.

Other videos in this 4-part series:

• 1. Who, What, Where and When of Filing an EEOC Charge - https://youtu.be/pTSvZhrpDzM​

• 2. What Happens When I File an EEOC Charge - https://youtu.be/X6cmAxCfhMQ​

• 3. EEOC Mediation Process - https://youtu.be/v6BVXSxJQYk

EEOC Pt. 3 - The EEOC Mediation Process

How does the EEOC Mediation Process work?

Transcript:

Hi everyone, this is Texas Employment Rights Attorney, Chris McKinney. Today, we're talking about the EEOC. This is a video in our continuing series about the Equal Employment Opportunity Commission and how their investigation process works. Today we're talking about the EEOC Mediation Process. Now in a prior video, we talked about what happens when you file an EEOC charge with the Equal Employment Opportunity Commission. And we talked about that after you file that charge, one of the things that happens is the agency sends you this document, an Invitation To Mediate. And as we discussed in that prior video, 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, that's the employee and the responding party, the employer, agree to mediate their case, then the EEOC will take that EEOC Charge of Discrimination out of their investigation unit and they're gonna move it over to the mediation unit. So let's talk a little bit about what mediation is and how that mediation unit works. So mediation is essentially a process by which a third party mediator who doesn't have a dog in the fight, as it were, is not on either side of the dispute, sits down with both parties and tries to arrive at an agreed resolution or settlement to the EEOC charge. Some people get confused between the word mediation and the word arbitration. These are two very, very different concepts. So it's important not to mix those up. 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 that the parties usually enter into by contract. And it takes the place of a jury trial. In an arbitration instead of a jury trial in front of your peers, you agree to hold your case and put on all your evidence and have it decided by a private arbitrator that is hired by the parties. That's not what we're talking about here. Those, an arbitration is typically binding, whereas a mediation through the EEOC is completely voluntary. Which means that you sit down, each side tries to iron out the dispute if they're able to reach an agreement that they can both agree to, then great. The charge can be disposed of in that matter. If they cannot agree to it, well then you're free to just get up and walk away. If there's no deal, then the mediation is at an end and the charge goes back to the investigations unit and the EEOC continues their investigation. So in that sense, it's a very low risk procedure because if the employer is not able to meet your demands and you can't reach an agreement with them, well then you just get up and walk away literally and the case goes back to the investigations unit. All right. So what happens in an EEOC mediation? So if both sides agree to a mediation, typically what's going to happen then is the case is gonna be removed from investigations, meaning the investigator will stop doing their work. Okay? And it's gonna go to mediation. Then the mediation unit, which is also known as the ADR unit or Alternative Dispute Resolution unit at the EEOC will contact both sides and work on scheduling a date for the mediation. Pre-COVID, mediations were typically handled in person where both sides would send representatives or come themselves to the EEOC offices to meet there. Of course, during the COVID pandemic we're doing everything electronically. So typically these mediations are handled via Zoom. But other than physically present, or by Zoom, the process generally works the same. And it's like this. To start out the mediation, all of the sides meet together in what's called a General Session in which the mediator will introduce himself or herself and explain the process a little bit and give both sides a chance to briefly explain the dispute from their point of view. All right? So after that takes place then both parties are separated and kept separate for the most part for the rest of the mediation. So for the bulk of the process, you're not going to be in the same room with the opposing side, with your employer. And then, from then on the mediator will go back and forth, back and forth between the employee's room and the employer's room doing shuttle diplomacy, if you were. So they'll come into the employee's room and say, "Okay, well what's the nature of the dispute and what is it that the employer could do to resolve this?" That might be a payment of some amount of money. If you believe you were wrongfully terminated. That might be agreeing not to give you a bad reference. If a prospective employer contacts you. A mediation is a creature of agreement. So there is a lot of freedom to agree to whatever terms are important to you. And sometimes you can actually get things through a mediation that you can't get in a courtroom. Under the Employment Laws, only certain types of remedies are available if you actually go to trial. Whereas if you reach a settlement agreement in a mediation, pretty much all bets are off. If the parties will agree to it, you can do it. So there is, that is a certain advantage to sitting down together and seeing if you can work things out through mediation. So once they talk, once the mediator speaks with you then the mediator continues shuttle diplomacy back and forth, goes to the employer, brings back their offer to you. So on and so forth throughout the day. These mediations typically last at least a half a day and they can last up to a full day. If the parties then reach an agreement, then that agreement will be documented in a settlement agreement. Sometimes the EEOC will prepare, they will definitely prepare a document. Sometimes the parties themselves will then have a longer form document. Once those documents are signed, then the funds will be provided to the employee, if that was part of the settlement agreement and the EEOC charge will be dismissed. Again if the parties aren't able to reach an agreement, well that's okay too. Then the charge just goes back to the investigation unit and the investigator will continue his or her investigator. Do you need to bring an attorney to the mediation? Technically no. You are not required to bring an attorney to the mediation. So you can go and certainly represent yourself. And many people do that. Is it advisable to do so? If you can afford to bring an attorney, or if an attorney will agree to represent you on a contingent fee basis, it is probably advantageous for you to take an attorney to the EEOC mediation. The employer, more often than not will bring an attorney with them to the EEOC mediation. And if they don't bring an attorney, well they certainly will have consulted with an attorney before coming to sit down in the mediation. So just to protect yourself and make sure you're not taken advantage of in that process, it is advisable to bring an employment attorney with you if you can do so, but you're not required to do so. I hope you found this video helpful. If you did, please like and subscribe down below. Again, this video is one in a series of EEOC videos that we're doing and as we complete them, we're gonna put the links to the other videos in the series down in the show notes. So be sure and look for those. You can also find more videos and more information on my website, which is themckinneylawfirm.com.

EEOC Pt. 2 - What Happens After I File an EEOC Charge?

What happens when I file an EEOC charge?

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 and initiating an investigation and seeing it all the way through to the end Right to Sue letter through that process.

In a previous video, we spoke about the who, what, where, when, why, and how of initiating the EEOC charge process. Today we're going to be talking about the nuts and bolts of actually how to file a charge. So let's start by taking a look at the charge document itself.

The EEOC Charge Document

So when you go to file an EEOC charge, either with the EEOC by meeting with an investigator or contacting them through their website or if you retain qualified employment counsel, to help you file that EEOC charge, this is the document that you're going to be asked to complete, it's a fairly straightforward document, but it is important that you get all of the information correct. You'll see that it's asking for some very basic information about you contact information and also some basic information about the employer, about what you're filing the charge. Then it also has some checkboxes, that indicate what type of charge you're filing, you know what type of discrimination or retaliation, that you are reporting. Also the dates that the termination took place, which are very important to get accurate. And then a section, a relatively short section there for what they call the particulars. And this is where you factually describe either with the help of the investigator or with the help of an employment attorney the facts of your complain, why it is that you believe you're being discriminated against, obviously this document while you can attach extra pages to make it longer. The EEOC generally likes to keep this document fairly short and direct into the point. This is not the place where you put a multi page outline of every fact that happened to you with your employer. This is just where you give a general description of what the facts are, why you believe that you were discriminated against.

It is particularly important to that either you work with the investigator or with your attorney to make sure that you get this document accurately describing the discrimination that you are complaining of. The reason for that is, is that this document is to control not only the scope of the EEOC investigation but also the scope of any lawsuit that you file later there at the bottom you'll also see where, you have to sign this document under penalty of perjury under oath. So that's another reason why it is vitally important, that you get the facts stated absolutely correctly in this document. So it is very important, that it be done correctly.

Now that charge document is going to be sent then to the employer about what you're complaining. And that employer will generally have an opportunity, to respond back to that in what's called a statement of position. Sometimes the EEOC investigator that is assigned will send one side or the other or both requests for additional information, because he or she feels like it doesn't have a full picture, or maybe there's some statistics involved or some witness names, that they want to gather from you. So it's important to respond to those in as timely a fashion as you can but understand that anything that you send to the EEOC either now or at some point in the future is likely to be sent to the employer. So you may wanna confer with your attorney about whether or not certain information should be submitted at this time or what form it should be submitted in.

Invitation to Mediate

Okay now once you have the charge on file, the EEOC is then going to send you some additional documents that they want you to look over and sign. And the first one of those, or perhaps the most important one is called the invitation to mediate. Now every charging party just about every charging party will be sent, this invitation to mediate document. What this document is doing is simply asking, Hey are you willing to participate in a voluntary mediation program that the EEOC conducts to try to resolve charges? It's a fairly simple yes or no type of question you sign off on it and you agree to mediate your case.

Now just because you agree to mediate the case does not mean that your case will be mediated because mediation is a voluntary process. Therefore the only way that the EEOC will be able to mediate your case and try to resolve it between the parties is if both sides agree to mediate the case. So both the employer and the employee say, yeah you know, we have this disagreement, but we'd like to sit down with a mediator and see if we can't get it resolved amicably. Then they will often send that off to the mediation unit. Again there's a certain amount of strategy involved as to whether or not you want your charge sent to the mediation unit. And when you want your charge sent to the mediation unit, because typically your EEOC charge will be pulled out of the investigations unit for the time period that it is sent to mediation.

Now, what is exactly involved in mediation and how that process works is that beyond the scope of this video, we'll talk about that down the road in another video.

Assuming that the case doesn't go to mediation, what is the next step in the investigatory process for the charging party? Typically the next step is waiting. The EEOC process can take an awfully long time for an investigation to be completed. And in fact if you leave your EEOC charge in the agency to complete its investigation, it is not unusual for that investigation to take a year or more to be completed. So it can take a very long time. Now after six months the agency loses its exclusive jurisdiction. So after the your charge has been on file with the EEOC for six months, you can contact the EEOC and say, Hey, whether or not you're done with the investigation, I would like you to close the investigation and issue me a right to Sue letter that then allows you to go file a lawsuit in state or federal court, depending on the type of client that you have. But you wanna be very careful about asking for that and make sure that you have your ducks in a row before you do it, because once you get that right to Sue letter, some very short timelines, begin to run as to when you must file your claim in court, or else you waive your claims forever. So it's advisable that you don't ask the EEOC for that right to Sue letter until you've retained counsel and your lawyer is prepared to file that lawsuit because you're only gonna have typically 90 days in which to do so once you obtain the right to Sue letter.

All right so in upcoming videos, we're gonna talk about the EEOC mediation process. And then we're gonna talk about the end of the EEOC investigatory process, what that looks like and how you should handle that. So be looking for those videos, once they're all created we'll put them down in the show notes links to them so that you can watch them in order if you want to, if you found this video helpful, please like and subscribe down below that helps our video distribution and helps other people find this information.

EEOC Pt. 1 - Filing an EEOC Charge - Who, Where, What, How, When, and Why

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. What's it all about? So let's get started with who is 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 or supporting someone who has reported discrimination. Now, that agency has a counterpart in many states and cities. Here in Texas, its counterpart is the Texas Workforce Commission Civil Rights Division. So we have a state agency and a federal agency that both basically have the same charge. And in Texas, those two agencies work together. They have a work sharing agreement. So you can file either with the federal EEOC or you can file with the Texas Workforce Commission Civil Rights Division, and they will share information with each other and effectively cross-file your charge with the other agency. So that's helpful to know.

Now, why do we have this agency and why do you need to know about it if you have that type of claim? And the reason is very simple. If you intend to pursue a claim of discrimination or retaliation, you can't simply go straight to court with that type of claim. Instead, you're actually required to file that type of claim with the EEOC or with a state counterpart agency prior to taking that claim to court. If you don't take that step and go to the administrative agency, then you won't be able to file a lawsuit based on those claims. So it's very important that you do so.

What?

So what do you file when you go to the EEOC? Well, you file a document that the agency calls a charge, a charge of discrimination. That's a very specific form that the federal government has printed. Texas Workforce Commission has a form that looks very, very similar to it, although it's a little bit different. And on that form is several required pieces of information regarding you and regarding the employer about which you are reporting or complaining. And then it also requires a small amount of factual information regarding the nature of your claim.

How?

Okay, so that's the what. Now, how do you file a charge of discrimination? Well, there's a couple of different ways that you can do it. And, in fact, you don't have to have a lawyer to file a charge of discrimination. You can file the charge on your own. How do you do that? Well, you go to eeoc.gov, that's the agency's website, and there are forms that you can fill out on the website where you provide the agency with certain required pieces of information. Now, unfortunately, the agency is very overbooked. And so after you fill out that information, you can plan to wait for a number of weeks or even months before you'll have an appointment with an EEOC investigator to discuss your case. Then once you've had that appointment with the EEOC investigator, they will actually prepare the formal charge document for you. And they will provide that to you for you to electronically sign. And then at that point, your charge is filed and their investigation will begin. That does take some time. The other way that you can file it is by retaining an attorney to help you out with that process. So you could go to a qualified employment lawyer near you, and if you retain that lawyer, they can help you file that charge. Because an employment attorney has access to the forms on their own and also access to ways to file those charge documents directly with the agency, typically, an employment attorney will be able to help you fill out your charge documents and file them much quicker than if you file through the EEOC yourself. They can also make sure that you've dotted all the Is, crossed all the Ts, and gotten all the necessary information in the charge document, which can be important because down the road, your lawsuit that you might choose to file against a former employer will actually be limited by what was in the charge. So if you didn't adequately described your situation in the charge document that you file with the EEOC, you may not be able to bring a claim in court based on your complaint. So it is very important that your charge document be completed properly. So that is another possible reason to speak with an employment lawyer and retain their services. But you're not required to. You can go straight to the EEOC and file it on your own if you wish.

When?

Now, let's talk about when you should file your EEOC charge. And this is very important. The short answer is, as soon as possible, file your EEOC charge. State and federal law have different timelines and deadlines for when you must file a charge in order to preserve your claim against your former employer. Here in Texas, if you're filing under federal law, you have up to 300 days from whatever it is that you're complaining about regarding your former employer. Typically, a termination that you believe to be wrongful, let's say. So you have 300 days from the date of your termination to file that charge. If you wanna file under state law with the Texas Workforce Commission, you only have 180 days to file a charge with that agency or to cross-file your charge with the EEOC and with the TWC in order to preserve those state law claims. 180 days is not much. That's six months. So it's very easy to accidentally allow six months to go by from a termination date and not get that charge on file. So if you do think that you have a potential claim of discrimination or retaliation against an employer, move swiftly, you need to get that charge on file just as soon as you can.

Why?

Now, you might be asking the question, "Well, why would it matter if the dates are shorter in state under the TWC than they are with the EEOC? Why don't I just go under the federal law? Because I have more time that way." And that's true, although state law and federal law differ, they're not exactly the same with regard to all employment types of claims. So if you're claiming a type of discrimination, age discrimination in federal court versus in state court, there may be certain advantages or types of damages that are only available to you in one and not the other. It can get a little complicated. That's another reason why you might wanna talk to an employment lawyer about it. But the bottom line is, if you move quickly and file your charge within 180 days of whatever the event is that you're challenging, then you will have done everything you can to preserve all of your options down the road should you later retain counsel and wanna file a lawsuit on the matter.

Conclusion

So that's the who, what, where, when, why, and how of filing an EEOC charge. Upcoming, in an upcoming video, we will talk about what happens after you file the EEOC charge, what is the process that the agency goes through to actually investigate your claim, and sometimes to try to resolve your claim on your behalf. I hope this video was helpful. If it was, consider down below liking or subscribing the video as that does help our information get out and helps other people find us. So until next time, we'll see you later. Bye-bye.

Is Workplace Bullying Illegal?

Texas employment law attorney Chris McKinney discusses bullying at work in today's video. When does workplace bullying cross the line into illegal harassment? We discuss that and related issues.

Transcript

- 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. Let me explain. 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 harassed sexually, sexually harassed, or if you're being harassed because you're a male or because you're a female, so the reason is sex, even if the harassment doesn't have a particular sexual component to it, then that might be illegal harassment. You see this very often in workplaces in which the workers in the office 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, such as your race, or your religion, or your national origin. Maybe you're Hispanic and you're in an all-white workforce, or you're white and you're in a Hispanic workforce and you're being harassed because of that, that might be illegal. Or for your membership in a religion or a disability. Those are all EEO categories that if you're being harassed or bullied because of your membership in that category, 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 he's nasty to everybody or nasty to you, 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, what you may wanna do is reach out to a qualified employment lawyer, which you can find by contacting our website, www.themckinneylawfirm.com. We talk to people every day about questions involving employment law and their rights in the workplace. We have a contact page on that website and we'd be happy to hear from you. Additionally, there's a lot of additional information, videos, articles, and other informational material on our website. So feel free to go there and do your own research about your situation at work. If you found this video helpful, we'd love it if you'd like the video down below, or if you would subscribe to this channel. Both of those help other people find the video on YouTube, which is useful. And also if you subscribe to the channel, then whenever we produce a new video and put that out, you'll be notified by it right away. Our website information is down below. Feel free to click on that and come to our website. And we look forward to hearing from you. Take care. We'll see you next time.

Can My Employer Dock My Pay If I Am A Salaried Employee?

Texas employment law attorney Chris McKinney discusses employers docking pay. As a general rule under the Fair Labor Standards Act ("FLSA") exempt employees are paid a salary and don’t have to be paid overtime no matter how many hours they work. But there are other rules that come with exempt status. One important one that employers often ignore is the rule against docking pay. So what happens if the employer breaks this rule and docks pay? We talk about that in today's video.

Do I Have A Claim For Age Discrimination?

Texas employment law attorney Chris McKinney discusses age discrimination in today's video. The Age Discrimination in Employment Act (ADEA) exists to protect individuals who are 40 years of age or older from employment discrimination based on age. The ADEA's protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment -- including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. But how do you know if you have been wrongfully terminated due to your age. We talk about that in today's video.

What is Employment At Will?

Texas employment law attorney Chris McKinney discusses employment at will and wrongful termination in today's video.

Today’s Topic: What is employment at will and how will it affect my wrongful termination claim?

Transcript:

- What is employment at will and how will it affect my wrongful termination claim? Hi everyone, I'm Chris McKinney, Texas employment rights attorney. And today we're going to talk a little bit about the concept of employment at will and how that interplays with the idea of being wrongfully terminated from your job. So what his employment at will? Well, very simply employment at will is the legal concept that's 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've been wrongfully terminated or you feel you've been unfairly fired? Well, in fact, 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 that the law can do to prevent an employer from terminating an employee for that reason. So what types of reasons are illegal? Well, those are generally, things that have been set up by statute, by our state and our federal legislatures. So in general, an employer under the idea of employment at will, can fire an employee for any reason that it wants, unless the reason that the employer is using has been statutorily prohibited by law. So some easy examples of those are anti-discrimination statutes. An employer is not allowed to terminate an employee for discriminatory reasons, such as those based on race or sex or age or pregnancy or disability or religion. Likewise, an employer would not be allowed to terminate an employee in retaliation for having made a report of discrimination for one of those reasons. And there are other reasons, too. There are certain types of what we call whistleblower statutes. And if an employee has made a report of certain types of illegal conduct then those terminations would be illegal as well. So if you've dealt with a termination that you think might've been wrongful, what do you need to do about it? We'll put very simply you do need to speak with a qualified employment lawyer as quickly as possible. And this isn't any joke, unfortunately, 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 short as 60 days from the time of the termination until a claim needs to be filed either with an administrative agency or with a court. And if the employee hasn't filed by that time then the claim can be lost forever. Now, not all statutes are that short, but many of them are shorter than you think, some are 60 days, some 180 days, some 300 days. But the bottom line is, if you truly believe that you have a legally actionable wrongful termination case it's not something to wait on. You should find a qualified employment lawyer near you and have a consultation and speak with them as soon as possible. If you have any more questions about wrongful termination or if you want to do some additional legal research on employment laws, visit my website at, themckinneylawfirm.com. Thanks, we'll see you next time.

Is my medical leave protected by the FMLA?

Today, Texas Employment Lawyer Chris McKinney discusses the Family and Medical Leave Act.

Today's Topic: Is my medical leave covered by the FMLA?

Transcript:

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? Well, in order to answer that question, we need to look at issues concerning the employee, the employer, and the reason that the medical leave is needed, so let's look at that. First, let's talk about the employer. The FMLA was designed primarily to apply to medium and larger size employers, therefore, an employer must have at least 50 or more employees that work at or near within 75 miles of the work site where the employee in question works, in order for that employer to be covered by the FMLA. Now, now turning to 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 employee for five years, if you're part-time and don't work at least 1,250 hours in the last 12 months, then you will not qualify for FMLA leave. Then lastly, we need to look at the reason for the medical leave. The FMLA provides for 12 weeks of unpaid medical leave for reasons related to healthcare or 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. And for the purposes of the FMLA, when we say, "Immediate family member," we mean a spouse, child, or a parent. There are some other types of leave or reasons for leave that may qualify for FMLA protection, but these are the most common. If you think that you qualify for FMLA leave and you need to take a medical leave, make sure you bring up the topic and 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, just so there's no question that you actually did make the request. The employer very possibly will ask you to fill out some forms and/or have your doctor fill out some medical forms as well. You should comply with those requests as quickly as possible, and get that information back to your employer.

Can an employer force an employee to take the COVID vaccine?

Texas Employment Law Attorney Chris McKinney helps employees with employment law questions all over the State of Texas, including in Austin, San Antonio, Dallas, and Houston.

Today's Topic: Can your employer fire you for refusing to take the COVID vaccine?

Transcript

Hi, I'm Chris McKinney, Texas labor and employment lawyer practicing in San Antonio, Texas. Today, we're talking about the COVID vaccine and whether or not employers will be allowed to force employees to take it. It seems every day in the news you see another report of yet another COVID vaccine being released or soon to be released and available to the American public for the dreaded COVID-19 virus. And while this is an excellent development, there is a question developing about whether or not employers can require employees to take the COVID vaccine. Well, so here's the answer, and like with many legal questions, the answer is yes and no. Generally, yes. Generally, employers are allowed to force employees to take a vaccine in order to remain employed. You see this a lot in the healthcare industry where employers for nurses, doctors, and others that work in hospitals and other healthcare facilities require employees to take a flu vaccine in order to work. And likely, the EEOC is going to provide similar guidance for the COVID vaccine. But of course, a lot of employers beyond the healthcare arena may require employees to take a COVID vaccine in order to come back to work in the workplace. Now, the law does provide for a couple of different exceptions to that general rule. One of those exceptions is under the Americans with Disabilities Act. If you have a healthcare condition that a doctor says might be exacerbated or might prove health-threatening to you if you take the COVID vaccine, then you may have an exception that would allow you to refuse to take it. Under Title VII of the Civil Rights Act of 1964, there's another potential exception, and that is for a bona fide religious belief that would be genuinely offended if required to take a COVID vaccine or any vaccine for that matter. Other than those two limited exceptions, the law seems generally clear that an employer can require an employee to take a COVID vaccine in order to return to work, and that's how that sums up.

How Do I Find An Employment Attorney?

Texas employment law attorney Chris McKinney discusses finding and hiring an employment lawyer. So you need to hire an employment lawyer but you don’t know how to get started? Then this video 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.