San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

All too often, someone who filed an EEOC charge comes to see me with their right-to-sue letter in hand seeking representation for a lawsuit.  Unable to accept their case, i discus the alternatives.  I review the deadline with the potential client: 90 days for federal court and 2 years for state court.  Looking more closely, I realize that the EEOC did not notarize the charge.  Oh, oh.  The EEOC famously, perhaps infamously, does not notarize changes of discrimination.  Without a notarized signature, the client cannot file suit in state court. 

The EEOC Notice of Dismissal (aka "right-to-sue" letter) form used by the EEOC has two signature blocks, one in which the affiant swears under penalty of perjury that the above complaint is correct and a second block which requires notary certification.  The EEOC uses the first block in which the affiant signs under penalty of perjury.  That first signature suffices for federal court, but not for state court.  The EEOC never asks the charging party to sign before a notary.  Stetson College of Law has posted a sample EEOC charge.  

Just about every private practice lawyer who represents employees asks the charging party to sign both signature blocks.  The notary certification is necessary for state court.  It only takes an extra minute or two to sign a second time before a notary.  I am told that way back when, the EEOC used to have charging parties sign both block.  But, they have long since discontinued that practice.  

So, now, in my office, I have to explain to a charging party why s/he cannot or should not file in state court.  It is way too late to file a new charge of discrimination.  As often happens, they came to see me about Day 88 of a 90 day deadline to file in federal court.  It is hard to find lawyers who represent employees in employment matters.  

So, once again, a client sees me well past the six month deadline for filing a charge of discrimination.  The 90 days to file in federal court is almost gone.  Since the charging party did not sign before a notary, s/he cannot now file in state court.  It is a maze which traps many well-meaning victims of discrimination.  All because the EEOC would not take an extra couple of minutes to have the charging party sign twice.......

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 In the legal business, lawsuits are governed by deadlines referred to as "statutes of limitation."  A lawsuit must be filed within the applicable statute of limitation.  A suit based on personal injury must be filed within two years of the act complained of.  If the last day of the two year period falls on a weekend or a holiday, then the statute of limitations period is extended until the next business day.  A lawsuit based on the state statute which prohibits discrimination must be filed within two years.  This statute is known as the Texas Commission on Human Rights Act. 

A suit based on defamation, libel or slander must be filed within one year of the act complained about.  A suit based on breach of an oral contract must be filed within two years of the alleged breach.  Suit on a written contract must be filed within four years of the alleged breach. 

Of course, there are many exceptions to these statutes of limitation.  If you have questions, you should speak with a qualified lawyer. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 Texas has a limited whistleblower protection.  Texas Government Code Sec. 554 protects public employees who report violations of law to the appropriate law enforcement agency.  See statute. The Texas Whistleblower Act provides for a 90 days deadline in which to file suit.  It also requires an employee to first file a grievance if the state or local agency provides for a grievance procedure.  If the employee files a grievance, then the duration of the grievance will toll the statute of limitations (ie, toll the deadline).  

The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. The report would need to be related to the reporting employee's official duties. 

There is no equivalent statute for private employees.  But, as I wrote earlier, a private employee would be protected if they were required to violate a criminal statute.   

So, if you are a private employer, report your employer for violating some criminal law and get fired, then you have no protection.  If you are a state or local government employee and are fired because you reported your employer for violating some law, then you can file suit.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link

 I wish I had a dollar for everytime this has happened here in San Antonio or especially across the country.  A person came to see me who did *not* receive his "right-to-sue letter" from the EEOC.  It was sent four months ago, but he just now found out about it.  He contacted the EEOC to get a status report and learned of his RTS letter.  Across the country, this happens many times, perhaps dozens, each year.  It has been a problem ever since some time in the 1970's when the EEOC stopped sending right-to-sue letters certified.  

Invariably, the Charging Party (the employee filing the complaint) responds to this problem by going to the EEOC and asking them to rescind the first RTS letter and issue a new one.  Most regional offices refuse. They point to their log that says they mailed the letter.  They offer nothing else.  The employee is stuck.

A right-to-sue letter is the street term for the Dismissal and Notice of Rights.  The EEOC sends these out as a conclusion to its supposed investigation.  The Notice notifies the Charging Party that s/he must file their lawsuit within 90 days.  If you miss the 90 days, your rights to file suit are waived forever.  Just a few days ago, I talked about how hard it can be to hire a lawyer for these cases.  It is a heck of a lot harder if your rights have already expired.....     

There may be ways around this.  That is, there are one or two other causes of action one may be able to file for particular types of discrimination.  But, darn, discrimination cases are difficult enough without having statute of limitation (deadline to file suit) issues floating around.  

• Email This
• Print
• Comments
• Trackbacks
• Share Link