Choosing a lawyer for any kind of case is an important decision, but it is especially important in employment-related matters. These claims can be very emotional and can take many months or occasionally even two or three years resolve, so it’s crucial that you are comfortable with and trust the person representing you. Furthermore, employment law is a very highly highly specialized area of the law, requiring lawyers to meet short deadlines and to make and respond to very technical legal arguments. You can’t afford to have someone handling your case that isn’t qualified.
You can generally fire your lawyer at any time, but it can be a complicated and stressful process that can severely damage your case. For these reasons, it’s best to “comparison shop” for your attorney, talking to at least two or three if possible before making your choice.
Here are some questions you might ask lawyers you are considering:
Do not expect any competent lawyer to tell you before the case even begins how the case will turn out. They may be able to provide you with some general opinions, but you should probably beware of “guarantees” or promises of recovering amounts that are many times your annual salary. Huge recoveries occur in employment discrimination cases, but they are not routine. When they happen, they usually result from evidence only uncovered through many months of litigation.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
The amount of time depends on the type of claim; however, the general rule with employment discrimination is that such claims must be raised very quickly, usually measured as a certain number of days rather than years.
Most claims brought under federal law must be raised within 300 days of the wrongful conduct, and most claims under state law must be brought within 180 days (less than six months). Some claims allow even less time (for example, 90 days).
It is very important that you check with a qualified employment lawyer about your specific situation as soon as possible to determine the deadlines that apply to your potential claims.
Some employees are allowed to take up to 12 weeks of unpaid leave in a 12-month period in connection with a medical emergency. Employees are generally eligible to take FMLA leave if they have worked for their employer for at least 12 months, have worked for at least 1,250 hours over the previous 12 months (an average of 24 hours per week), and work at a location where at least 50 employees are employed by the employer within 75 miles. FMLA leave can be taken to deal with an illness of the employee or certain family members. Qualifying family members include the employee’s spouse, children, and parents (but not parent “in laws”). An employer can be liable for damages where they fire an employee while on FMLA leave or refuse to reinstate the employee upon their return to work.
The employer is also prohibited from firing or otherwise retaliating against an employee for taking FMLA leave. You should be suspicious if the employer reprimands you, cuts your pay, changes your duties or work schedule, or fires you in the weeks following your request to take FMLA leave or your return to work from such leave.
Employees of nursing homes, convalescent homes, and other similar institutions cannot be fired or otherwise discriminated or retaliated against for reporting a violation of the law to the employee’s supervisor, the facility administrator, a state regulatory agency (such as the Texas Department of Aging and Disability Services, or “DADS”), or a law enforcement agency. Such employees are also protected against this kind of retaliation when they initiate or cooperate in an investigation by a governmental entity related to care, services, or conditions at the institution. These claims can be brought by nurses as well as other employees. Complaints leading to these types of claims often involve the neglect or abuse of residents or patients, such as allowing them to lie in wet beds, improperly restraining or sedating them, failing to properly safeguard the confidentiality of their medical information, or failing to provide them with proper medication or nutrition.
These claims must be raised very quickly or they are lost forever. Specifically, the employee must initiate legal action not later than the 90th day after the date their employment is suspended or terminated.
An employer cannot fire or otherwise discriminate against an employee who takes steps toward obtaining workers’ compensation benefits for a job-related injury. This protection applies even before a workers’ compensation claim is actually filed, so long as the employer is aware of the injury. Here are some of the kinds of evidence that are often important in proving a claim for workers’ compensation retaliation:
The physical limitations from a job-related injury (even when backed up by a doctor’s note) do not automatically excuse you from performing the essential functions of your job. The employer may be allowed to fire you legally if your medical restrictions prohibit you from performing any part of your job that is truly important over an extended period of time. However, the employer must make reasonable accommodations for such limitations (for example, by giving you “light duty”) to the same extent they would for an employee who was temporarily disabled for reasons other than a workplace injury (say, as the result of a car accident). The idea is that the employer can’t treat your restrictions more harshly just because they result from an on-the-job injury.
An employee has up to two years from the date of the retaliation to begin legal action.
Under certain circumstances, an employer must make reasonable accommodations (relaxing certain requirements of the job) to address an employee’s disability, and an employee may file a lawsuit if those accommodations are not made; however, this law has several burdensome requirements. For example, the employee must have a condition that qualifies as a disability under the law (often a tricky question), the employer must know about the disability, the employee must ask for specific accommodation he or she wants, the accommodation must be reasonable for that particular employer, the employee must be able to perform each and every essential function of the job if given the accommodation, and the employer must refuse to provide the reasonable accommodation. What qualifies as a “reasonable” accommodation depends on such factors as the company’s size and its financial resources, and the cost and inconvenience of making the accommodation requested. What is reasonable for a huge corporation is often different from what is reasonable for a small “mom and pop” business.
An employee can also bring a legal action where the employer “regards” or “perceives” the employee as disabled, even if the employee is not actually disabled. Such cases tend to arise with illnesses that carry a social stigma, such as cancer, heart disease, epilepsy, hepatitis, and the HIV virus. The employer can be legally liable for damages where it takes action based on that false perception, such as where an employer refuses to provide training to someone who had a heart attack out of a fear that the training would be wasted if another heart attack proves fatal, or where an employer fires someone who it discovers is HIV-positive out of fear of infection through casual contact.
An employer cannot discriminate against an employee because of their race or national origin. These cases most often involve employees who are African-American, Hispanic, Asian-American, or of Middle-Eastern descent; however, they can be brought by a person of any race or national origin (including White employees). Here are some of the kinds of evidence that are often important in proving discrimination based on race or national origin:
Comments related to race and national origin are generally most helpful when they are made by someone who supervises the employee who is bringing the legal claim, or when such a supervisor knows about them and doesn’t take action to make them stop.
An employer cannot discriminate against an employee for becoming pregnant. You may have reason to be suspicious if your employer reprimands you, cuts your pay, changes your duties or work schedule, or fires you in the weeks following the disclosure of your pregnancy, shortly before your maternity leave is about to begin, or shortly after you return from maternity leave. Important evidence of pregnancy discrimination often includes comments indicating that the employer is unhappy about the situation, such as that the employee’s maternity leave comes “at a bad time” and will cause hardship to the company or other employees, or that that getting pregnant was somehow “inconsiderate” or “unprofessional.”
The physical limitations of pregnancy (even when backed up by a doctor’s note) do not automatically excuse you from performing the essential functions of your job. The employer may be allowed to fire you legally if your medical restrictions prohibit you from performing any part of your job that is truly important over an extended period of time. However, the employer must make reasonable accommodations for such limitations (for example, by giving you “light duty”) to the same extent they would for an employee who was temporarily disabled for reasons other than pregnancy (say, as the result of a car accident or a work-related injury). The idea is that the employer can’t treat your restrictions more harshly just because they result from pregnancy.
An employer cannot discriminate against an employee because of their gender (male or female). Sexual harassment and pregnancy discrimination are two types of gender discrimination covered by separate questions on this website, but here are some of the kinds of evidence that are often important in proving gender discrimination:
Gender-related comments are generally most helpful when they are made by someone who supervises the employee in question, or when such a supervisor knows about them and doesn’t take action to make them stop.
An employer cannot discriminate against an employee for being over the age of 40. Employers are free to discriminate against employees for being young (under 40). Here are some of the kinds of evidence that are often important in proving age discrimination:
Age-related comments are generally most helpful when they are made by someone who supervises the older employee, or when such a supervisor knows about them and doesn’t take action to make them stop.