Archives for category: Employment law

Free Speech at Work

The NFL protests and our President’s reaction to them raise interesting issues about political speech and expression in the workplace.   In response to the President’s comments, many commentators seem to brush off the idea that someone can be fired for exercising their right to free speech.  But, are they right?  No doubt we are entitled to free speech under the First Amendment of the United States Constitution, but does that mean we are free to express our political views whenever or wherever we want, specifically where we work?  In Texas, the short answer is – probably not.

The vast majority of Texans work for private employers.  Generally, the United States Constitution protects Americans from government action.  Private employers are rarely government actors.  In one of his many dissenting opinions, Justice Scalia expressed this idea well when he wrote:  “This is a free country.  Every American has the right to express an opinion on issues of public significance.  In the private sector, of course, the exercise of that right may entail unpleasant consequences. Absent some contractual or statutory provision limiting its prerogatives, a private-sector employer may discipline or fire employees for speaking their minds.”

Like the United States Constitution, the Texas Constitution provides a free speech guarantee.  And, like the United States Constitution, courts have said that the protections of that free speech guarantee extend only to government actors.  The Texas Supreme Court has written that “the guarantees of the Texas Bill of Rights generally apply only against the government… Similar protections do not exist for action by private individuals.”

What does this mean for the average Texas employee? Can you engage in political protest during work events?  If your employer does not want you to engage in political speech, no you cannot.  Texas is an at-will employment state.  That means, unless you have a written agreement to the contrary, a private employer is free to terminate you for almost any reason or no reason at all.  The exceptions to this rule for medium size to large employers arise not out of the United States Constitution, but out of statutory protections such as Title VII of the Civil Right Act and similar enactments contained in the Texas Labor Code (Title VII and the mirroring Texas Labor Code provisions do not apply to small employers, i.e., those that employ 15 employees or less). Generally, these statutes protect employees from discrimination based on sex, religion, or national origin.  Employees cannot be discriminated against because of who they are or where they come from; they can be discriminated against for what they say.

In contrast to private employees, government employees do have some protections when they engage in political speech in the workplace.  If a government employee is terminated for exercising their right to free speech regarding political matters that decision must survive a balancing test that weighs the employee’s interest in commenting on matters of public concern against the employer’s interest in workplace efficiency and harmony.  Of course, the key distinguishing factor of between public and private employers is that the First Amendment applies to “government actors.”  While the private versus public employer distinction is usually easy to make, for private employers that contract with government entities, care should be taken to understand if their employment decisions can take on the character of government action and that the contracts entered into with the government entity do not extend free speech protections enjoyed by public employees to the private employer’s employees.

Interestingly, while most all political speech in the workplace is not protected, the Texas Elections Code does protect the ultimate expression of political speech  – the right to participate in certain political activities and, most importantly, the right to vote.  The following specific protections apply to the right to vote in Texas:

  1. An employer may not refuse to allow an employee to miss work to attend a political convention, or subject the employee to a penalty for attending.
  2. An employer may not refuse to allow an employee to miss work on Election Day to vote. However, if the polling times include two consecutive hours outside of the employee’s working hours, this provision does not apply.
  3. An employer cannot retaliate against an employee who has (1) voted a certain way or (2) refused to reveal how he or she voted. The employer cannot threaten or subject an employee to loss of wages, reduce their wages, or reduce any other benefit of employment.

Perhaps ironically, most Texans do not have the right to wear their political views on their sleeves at work, but they do enjoy the right to keep their politics to themselves. At least in Texas, the commentators who casually conclude political speech in the work place is protected should remember the wisdom of the Peanuts character Linus, “There are three things I have learned never to discuss with people [at work]…religion, politics, and the Great Pumpkin.”

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A couple of months ago I wrote an article on the risks posed to business owners by work related accidents.  This month the article will be addressing the broader topic of work place injuries.  Specifically, injuries suffered by employees while on the job.  Texas, like most states, creates strong incentives for businesses to provide their employee’s coverage for work-related injuries by purchasing workers’ compensation insurance.  Workers’ compensation is a state-regulated insurance program that helps people with work-related injuries and illnesses.  Although providing worker’s compensation insurance is not mandated by the State of Texas, most employers in labor intensive business, such as construction or manufacturing, purchase worker’s compensation insurance.  However, the Texas workers’ compensation insurance system has been criticized as both expensive and ineffective.  For this reason, some employers have opted not to provide workers’ compensation insurance, and take on what can be significant litigation risks that arise when employees are injured on the job.

When determining a business’ potential liability for work place injuries, the first question to be asked is whether the business has workers’ compensation coverage.  If the answer is yes, then the risk and exposure is very low and primarily related to a potential increase in workers’ compensation premiums.  This is because the Texas Labor Code makes the recovery of workers’  compensation benefits the exclusive remedy for an employee covered by workers’ compensation insurance.  This means that generally injured employees and their families cannot sue an employer for damages arising out of a work place injury if the employee is covered by workers’ compensation insurance.  There are only one exception.  If the employer’s gross negligence was a cause of the employee’s injuries, then the employee or his surviving family (if the employee was fatally injured) can recover exemplary damages in addition to workers’ compensation benefits.

For employees injured on the job, workers’ compensation insurance provides payment for medical care for the treatment of their injuries; and, depending on the type and severity of the injury, workers’ compensation may also provide payments to replace some of an injured employee’s lost income, up to time and dollar limits set by law; compensation for burial expenses for employees killed on the job; and death benefits for dependents of employees killed on the job.  Benefits for lost wages are based on a percentage of the employee’s income.  If the injury is severe but does not result in death, the employee’s additional benefits are determined based on a medical exam and the application of a formula to the doctor’s determination of percentage of impairment.  Death benefits are determined based on a formula that takes into account the employee’s current earnings and his age at the time of death.

Employee rights groups have criticized the workers’ compensation system  arguing that it limits employees’ access to the doctors of their choosing and the benefit payments do not adequately compensate employees.  Employer friendly groups have complained the insurance in some industries is cost prohibitive.  Both employer and employee groups have complained that they system fails to effectively treat injuries so that the employee can return to work as soon as possible.  An additional risk associated with carrying workers’ compensation insurance for the employer is the potential for liability arising from what is referred to as workers’ compensation retaliation.  Workers’ compensation retaliation claims can arise if an employee is terminated when they have filed or are going to file a claim for workers’ compensation benefits.  Generally, Texas law does not allow employers to terminate an employee for having filed a claim for worker’s compensation benefits.  Because of these problems and risks, some businesses have decided not to participate in the workers’ compensation system.  These businesses are commonly referred to as non-subscribers.

Non-Subscribers are required by the State of Texas to file an annual notice with the Department of Justice, post notices in their personnel offices and workplaces that they do not provide workers’ compensation insurance, and tell each new employee in writing that they don’t have workers’ compensation insurance.  From a liability standpoint, non-subscribers  have increased exposure to lawsuits by injured employees.  Injured employees can sue non-subscribers over workplace injuries.  If they’re sued, non-subscribers can’t argue in court that the injured employee’s negligence caused the injury; another employee’s negligence caused the injury; or the injured employee knew about the danger and voluntarily accepted it.  Generally, injured employees seek to recover damages for lost wages, medical care, and pain and suffering.

Some non-subscribers mitigate the risk of employee suits by providing occupational insurance coverage and/or by providing health insurance and short term and long term disability coverage.  For some employers, these coverages would  have been provided anyway and/or can be obtained for a lower cost than worker’s compensation coverage.  When these coverages are in place, then can discourage lawsuits because the employee’s healthcare needs will be insured and, in the event of a lengthy work absence, there will be some wage replacement.  When the right benefits are in place, insurance can also be a more efficient method of recovering losses for the employee as well.  This is so because most attorneys who file suits against non-subscribers receive a fee of one-third to forty percent of any recovery.

Texas is one of a minority of states that does not require employers to participate in a worker’s compensation insurance system.  Like all freedoms, this one involves a risk.  Therefore, a careful risk benefit analysis should be done by any employer who engages in a business where there are frequent or potentially catastrophic injuries.  If you need help weighing your options, more information about this topic is available on the Texas Department of Insurance webpage and from licensed agents who specialize in selling workers’ compensation insurance.

Employers can breathe a limited sigh of relief in the state of Texas.  Some employers claimed that they could not hire and retain otherwise qualified and productive adults who had criminal records, even though they had served their time and were rehabilitated, for fear of being sued for negligent hiring or negligent supervision.  HB 1188, and codified in Chapter 142 of the Texas Civil Practice & Remedies Code, was passed and enacted into law effective September 1, 2013, which now provides that a lawsuit may not be brought against an employer, general contractor, premises owner, or other third party solely for negligent hiring or failing to adequately supervise an employee, based on evidence that the employee has been convicted of an offense.  This was claimed to be an important stamp for employers because approximately 20 percent of Texas adults are reported to have a criminal record.  Of course, HB 1188 does not, amongst other things, preclude a lawsuit for negligent hiring or supervision if the employer, general contractor, premises owner, or other third party, knew or should have known of the person’s conviction and the offense that was included in a list of certain specified offenses, including a sexually violent offense under Article 62.001 of the Texas Code of Criminal Procedure.

Brian T. Cartwright is Board Certified in Personal Injury Trial Law and can be reached at bcartwright@dentonlaw.com and www.dentonlaw.com