An employee can overcome the qualified privilege only be showing the publisher of the statement acted with actual malice.  Showing malice is a high burden. 

The normal principles of defamation law apply: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. 

Truth is always an absolute defense to defamation.

Even if the conduct is based on your sex, the law does not protect you from simple teasing or offhand comments.  It also doesn’t protect you from isolated incidents that are not extremely serious.  Instead,  the conduct must be so objectively offensive as to alter the conditions of the your employment (a fancy of way of saying that the conduct must make your job actually different from the one your thought you were hired to do).

What is Sexual Harassment?

Unwelcome verbal or physical conduct based on race, color, religion, sex (whether or not of a sexual nature and including same-gender harassment and gender identity harassment), national origin, age (40 and over), disability (mental or physical), sexual orientation, or retaliation (sometimes collectively referred to as “legally protected characteristics”) constitutes harassment when:

1.The conduct is sufficiently severe or pervasive to create a hostile work environment; or

2.A supervisor’s harassing conduct results in a tangible change in an employee’s employment status or benefits (for example, demotion, termination, failure to promote, etc.).

Hostile work environment harassment occurs when unwelcome comments or conduct based on sex, race or other legally protected characteristics unreasonably interferes with an employee’s work performance or creates an intimidating, hostile or offensive work environment. Anyone in the workplace might commit this type of harassment – a management official, co-worker, or non-employee, such as a contractor, vendor or guest. The victim can be anyone affected by the conduct, not just the individual at whom the offensive conduct is directed.

Examples of actions that may create sexual hostile environment harassment include

•  Leering, i.e., staring in a sexually suggestive manner
•  Making offensive remarks about looks, clothing, body parts
•  Touching in a way that may make an employee feel uncomfortable, such as patting, pinching or intentional brushing against another’s body
•  Telling sexual or lewd jokes, hanging sexual posters, making sexual gestures, etc.
•  Sending, forwarding or soliciting sexually suggestive letters, notes, emails, or images
Other actions which may result in hostile environment harassment, but are non-sexual in nature, include:

•  Use of racially derogatory words, phrases, epithets
•  Demonstrations of a racial or ethnic nature such as a use of gestures, pictures or drawings which would offend a particular racial or ethnic group
•  Comments about an individual’s skin color or other racial/ethnic characteristics
•  Making disparaging remarks about an individual’s gender that are not sexual in nature
•  Negative comments about an employee’s religious beliefs (or lack of religious beliefs)
•  Expressing negative stereotypes regarding an employee’s birthplace or ancestry
•  Negative comments regarding an employee’s age when referring to employees 40 and over
•  Derogatory or intimidating references to an employee’s mental or physical impairment
• 
Harassment that results in a tangible employment action occurs when a management official’s harassing conduct results in some significant change in an employee’s employment status (e.g., hiring, firing, promotion, failure to promote, demotion, formal discipline, such as suspension, undesirable reassignment, or a significant change in benefits, a compensation decision, or a work assignment). Only individuals with supervisory or managerial responsibility can commit this type of harassment.

A claim of harassment generally requires several elements, including

1.  The complaining party must be a member of a statutorily protected class;
2.  S/he was subjected to unwelcome verbal or physical conduct related to his or her membership in that protected class;
3.  The unwelcome conduct complained of was based on his or her membership in that protected class;
4.  The unwelcome conduct affected a term or condition of employment and/or had the purpose or effect of unreasonably interfering with his or her work performance and/or creating an intimidating, hostile or offensive work environment.

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.  Both victim and the harasser can be either a woman or a man, and the victim and harasser can be the same sex.

Harassment does not have to be of a sexual nature, however, and can include offensive remarks about a person’s sex. For example, it is illegal to harass a woman by making offensive comments about women in general.

Sources: FCC.gov; EEOC.gov

The (ADEA) does not protect workers under the age of 40, although some states do have laws that protect younger workers from age discrimination.

It is not illegal for an employer or other covered entity to favor an older worker over a younger one, even if both workers are age 40 or older.

Discrimination can occur when the victim and the person who inflicted the discrimination are both over 40.

Age Discrimination & Harassment

It is unlawful to harass a person because of his or her age.

Harassment can include, for example, offensive remarks about a person’s age. Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that aren’t very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted).

The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

There are some major exceptions to at-will employment in Texas: 
    1) Collective bargaining agreements almost always require some form of just cause for termination.
    2) Civil service employment usually requires some form of good cause for termination. 
    3) Individual employment agreements almost always require some form of good cause for
    termination.

Employee handbooks almost never require good cause for termination.  Most employers in Texas now know to include some provision in employee handbooks stating that the handbook is *not* a contract. 

The major exception to at-will employment is discrimination.  Texas has a state statute that tracks Title VII of the Civil Rights Act of 1964.  The state statute is known as the Texas Commission on Human Rights Act.  Title VII and the TCHRA prohibit discrimination based on race, color, national origin, religion, and sex.  The Age Discrimination in Employment Act and the TCHRA prohibit discrimination based on age.  The Americans with Disabilities Act and the TCHRA prohibit discrimination based on disability.

Texas has a few anti-retaliation statutes: 
    1) An employee is protected against being ordered to commit an illegal act.  This claim is known as
    a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733(Tex. 1985).  The refusal to commit
    an illegal act must be the sole cause of the termination. 
    2) An employee is also protected because he/she served on a jury.  Texas Civil Practice &
    Remedies Code Sec. 122,001.  An employee who believes he/she has suffered retaliation due to
    jury service has two years in which to bring such a claim.  The damages are limited, but still, this
    statute does offer some protection.
    3) Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a
    nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90
    days of the alleged reprisal. 
These are the few anti-retaliation statutes that have some teeth in Texas.

About the Editor

San Antonio Employment Lawyer
Thomas J. Crane
211 Babcock
San Antonio, Texas
P: 210-736-1110
www.sanantonioemploymentlawblog.com

Unlike many states, Texas has no statute or regulation addressing break periods in the work place.  So, in Texas we fall under the federal regulations.  Under 29 CFR Sec. 785.19, genuine meal periods are not work times.  The employee must be completely free from performing any duties during a genuine meal period.  For example, an employee required to eat at his desk is not truly relieved from his duties.  A meal time is not required.

Contrary to what some people say, there is nothing in the federal regulations requiring a break period (outside of the meal break).  For example, when I worked in a warehouse many years ago, I was told we were entitled to a 15 minute break twice a day.  There is no such requirement.  But, federal regulations do provide that many employers provide such a break, 5-20 minutes long, to promote efficiency.  Such breaks are considered paid time.  See 29 CFR Sec. 785.19. 

Final Paycheck

Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages.  A statute is a law passed by the state legislature.  TWC provides a summary of the Texas Payday Statute at: http://www.twc.state.tx.us/ui/lablaw/pdlsum.html.  Many employees want to know when must an employer pay the last paycheck?  Frequently,  many employers withhold the last paycheck until Joe Employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever. 
But, the employer cannot do these things.  An employer cannot hold the final paycheck until an employee turns in tools or whatever.  The employer must pay the last paycheck within six days of the last day.  Tex.L.C. Art. 61.014.  But, this law has no real teeth.  The employer can incur a criminal penalty for missing this deadline.  But, few District Attorney’s would have the time to prosecute what they see as a relatively minor crime. 

About the Editor

San Antonio Employment Lawyer
Thomas J. Crane
211 Babcock
San Antonio, Texas
P: 210-736-1110
www.sanantonioemploymentlawblog.com

Applying for unemployment benefits is a bit of a mystery.  Fortunately, Texas Workforce Commission provides a helpful website.  TWC processes all claims for unemployment benefits.  In general, you receive unemployment benefits if you lose a job through no fault of yours.  So, if you have committed some work infraction or ignored attempts to improve your work performance, then you will not receive benefits.  If an employer will claim you have performed poorly, it is important for the employer to document the alleged poor performance.  Many hearing officers will not credit a claim of work infractions or poor performance if the employer cannot document such issues with contemporary written warnings.  Even if the employer can document the alleged poor performance, the employer must be able to prove that the employee had knowledge of the alleged poor performance. 

Even if the employee can pass the alleged poor performance hurdle, s/he must still have wages with TWC payments for the prior two calendar quarters.  And, of course, in order to receive benefits, the employee must attest that s/he is applying for jobs every week.

Many issues in unemployment appeals involve requests for accommodation that were never answered; persons missing work due to illness; or issues regarding higher standards of work that were not communicated to the employee.  In one case, at the hearing, it turned out that the employer did not believe they had fired the employee!  Since it was not clear the employer had actually terminated the employee, the employee lost her appeal and her benefits. 

So, for those of you filing for unemployment or who think you will soon be filing for unemployment benefits, be sure to:

• Make certain you have actually been terminated;
• Find out the stated reason for your termination - get the reason(s) in writing as much as possible;
• Provide evidence to TWC (and to the employer), such as doctor’s notes prior to the hearing;
• Notify TWC regarding any key witnesses - provide a phone number for the witness to TWC f(and to the employer); and
• Review the TWC website - the employee and employer info.

Note this TWC page.  It is meant for employers, but much of it applies equally well to employees.  It has good information regarding do’s and don’t's at the hearing itself.

Hearings, these days, are almost always over the phone.  Most hearings do not emphasize the rules of evidence or rules of civil procedure.  So, an applicant for benefits does not necessarily need a lawyer.  But, if you are not sure if you need a lawyer, contact an employment lawyer to at least discuss your case before the hearing.

About the Editor

San Antonio Employment Lawyer
Thomas J. Crane
211 Babcock
San Antonio, Texas
P: 210-736-1110
www.sanantonioemploymentlawblog.com

Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission.

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.

Texas does recognize the tort of invasion of privacy.  But, there may be expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  If the employer searches that locker with the employee’s permission, then the employer has violated the employee’s right to privacy. 

About the Editor

San Antonio Employment Lawyer
Thomas J. Crane
211 Babcock
San Antonio, Texas
P: 210-736-1110
www.sanantonioemploymentlawblog.com