Other Types of Employment-Related Litigation

  1. breach of contract - see "fraud" below - an employer should never put anything into an agreement that it does not fully intend to carry out; depending upon individual state laws, this goes for both oral and written promises; the basics of this cause of action are found in Greater Fort Worth & Tarrant County Community Action Agency v. Mims, 627 S.W.2d 149, 151 (Tex. 1982). Even a unilateral, "illusory" promise can become enforceable by performance. In Vanegas v. American Energy Services, 302 S.W.3d 299 (Tex. 2009), the Texas Supreme Court considered a promise made by a company that it would pay five percent of the proceeds of a sale or merger to any employees remaining with the company until the time of a sale or merger. Several employees sued after the company refused to fulfill that promise. Brushing aside the company's argument that the promise was illusory because the employees were employed at will and could be terminated at any time, the Court held that the employees' acts of remaining with the company constituted specific performance that made the unilateral contract binding on the company.

  2. constructive discharge - an employee who resigns may satisfy the adverse employment element of a discrimination claim by proving that he or she was constructively discharged. Brown v. Bunge Corp., 207 F.3d 776, 782 (5th Cir. 2000). To prove constructive discharge, a plaintiff must prove that "working conditions were so intolerable that a reasonable employee would feel compelled to resign." Id. In establishing whether such a resignation was reasonable, "[t]he following factors are relevant: (1) demotion; (2) reduction in salary; (3) reduction in job responsibilities; (4) reassignment to menial or degrading work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation; or (7) offers of early retirement on terms that would make the employee worse off, whether accepted or not." Id.; Barrow v. New Orleans Steamship Ass'n, 10 F.3d 292, 297 (5th Cir.1994). By the time of Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 771-772 (5th Cir. 2001), the Fifth Circuit had removed "reassignment to a younger supervisor" from the list of relevant factors (see also Aryain v. Wal-Mart Stores Texas LP, 534 F.3d 473, 481 (5th Cir. 2008)). "Aggravating factors used to support constructive discharge include hostile working conditions or the employer's invidious intent to create or perpetuate the intolerable conditions compelling the resignation." (Keelan v. Majesco Software, Inc., 407 F.3d 332, 342 (5th Cir. 2005)).

  3. defamation - verbal or written publication of false information about a person with intent to harm the person's reputation or with reckless disregard for the consequences of the falsehood.

    1. this includes the so-called "doctrine of compelled self-publication", when an ex-employee who is given what amounts to a defamatory reason for discharge is forced, by virtue of needing to tell the truth, to repeat the defamation to prospective new employers (see, for example, Chasewood Construction Co. v. Rico Construction Co., 696 S.W.2d 439 (Tex. App.-San Antonio 1985, writ ref'd n.r.e.); for an alternative view, see Doe v. Smith Kline Beecham Corp., 855 S.W.2d 248 (Tex. App.-Austin 1993), modified, 903 S.W.2d 347 (Tex. 1995).). For this reason, the employer must be very sure of its facts before telling an employee that he or she is being discharged for a particular reason, and even if the employee is given a frank explanation of the reason, the explanation should be as matter-of-fact and non-inflammatory as possible.

  4. estoppel - "Estoppel is an equitable doctrine invoked to avoid injustice in particular cases." Heckler v. Community Health Servs., 467 U.S. 51, 59, 104 S.Ct. 2218, 81 L.Ed.2d 42 (1984).

    1. Equitable estoppel - elements: conduct or language amounting to a misrepresentation of material fact by a party that must have been aware of the true facts; that party must have had an intention that the representation be acted on, or the other party must have reasonably believed that the former's conduct was so intended; the party asserting estoppel must have been unaware of the true facts; and the party asserting estoppel must have justifiably relied on the representation to its detriment

    2. Promissory estoppel - elements: promise or offer of some kind; detrimental reliance on that promise; the reliance was reasonable under the circumstances; the employer should have known the offeree would rely on the promise; and some measure of damages other than mere disappointment

    3. Arbaugh v. Y & H Corporation, dba Moonlight Café, 546 U.S. 500, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) is technically not an estoppel case, but it served as a basis for the Minard and Thomas cases cited below. The U.S. Supreme Court ruled in Arbaugh that the employee numerosity requirement under Title VII of the Civil Rights Act of 1964 is not jurisdictional, and that the employer raised too late the objection that it had fewer than 15 employees. The 15-employee limit is simply one of the substantive elements of proof that must be pleaded and proven.

    4. Minard v. ITC Deltacom Communications, Inc., 447 F.3d 352 (5th Cir. 2006) - equitable estoppel applies to the 50-employee numerical threshold under FMLA. If a company leads an employee to believe they will be covered under the FMLA, and the conditions for equitable estoppel are satisfied, then it will not matter that an employer has fewer than 50 employees (in this case, the employer had 50 or more employees, but not 50 or more within a 75-mile radius of the claimant's work location). Following the Minard ruling, the 5th Circuit held that a typographical error in an FMLA-related letter to an employee did not extend the employee's FMLA entitlement, since there was no showing of harm to the employee (see Durose v. Grand Casino of Mississippi, Inc., 251 Fed.Appx. 886 (5th Cir. 2007)).

    5. Thomas v. Miller, et al, 489 F.3d 293 (6th Cir. 2007) - 20-employee threshold in COBRA cases is non-jurisdictional and subject to equitable estoppel, if the elements of that cause of action are shown.

    6. Lesson: know what laws apply to your company and its situations, and be careful what the company promises, because the rules of estoppel may require the company to deliver exactly what it promised.

  5. fraud - commonly tied together with a breach of contract claim; see The American Tobacco Co., Inc. v. Grinnell, 951 S.W. 2d 420 (Tex. 1997).

  6. intentional infliction of emotional distress - elements: (1) the employer acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the employer's actions caused the plaintiff emotional distress; and (4) the emotional distress that the plaintiff suffered was severe (City of Midland v. O'Bryant, 18 S.W.3d 209 (Tex. 2000)). Some states (not Texas) even recognize the tort of "negligent infliction of emotional distress" - Texas law recognizes only the tort of intentional infliction of emotional distress - this requires proof of some kind of "extreme and outrageous" conduct on the employer's part. Illustrative cases: MacArthur v. Univ. of Texas Health Center - Tyler, et al, 45 F.3d 890 (5th Cir. 1995); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605 (Tex. 1999).

  7. interference with an employment relationship - this commonly occurs when an outside party puts pressure on an employer to take some kind of adverse job action against an employee. An employer in such a situation should never act without the counsel of an attorney; such an action can be brought against both third parties and individual employees of an employer, depending upon the individual state's laws. A good discussion of this cause of action is found in Marathon Oil Co. v. Sterner, 745 S.W.2d 420 (Tex. App.-Houston [14th Dist.] 1988), aff'd in part, rev'd in part, 767 S.W.2d 686 (Tex. 1989).

  8. invasion of privacy - this is a real risk for companies that try to implement monitoring and surveillance procedures without first seeking the advice of an employment law attorney; see K-Mart v. Trotti, 677 S.W.2d 632, 636 (Tex. App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.).

  9. malicious prosecution - employees and ex-employees whose employers improperly cause criminal charges to be filed against them may have a cause of action for "malicious prosecution"; see Browning-Ferris Indus. v. Lieck, 881 S.W.2d 288 (Tex.1994). The key to avoiding liability under this cause of action is to simply make a good-faith, factual report of alleged wrongdoing to law enforcement, furnish relevant information, and let the chips fall where they may.

See also: Other Legal Issues Associated with Investigations

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