Texas Workforce Commission Complaint
Discrimination, Harassment, and Retaliation Claims
The Texas Commission on Human Rights Act (TCHRA) prohibits various forms of employment discrimination, harassment, and retaliation. A job applicant or employee who wishes to assert claims under the TCHRA in a lawsuit against their employer must first “exhaust” their administrative remedies. To do so, the complaining applicant or employee must:
- file a written complaint with the Texas Workforce Commission (TWC) not later than the 180th day after the date the alleged unlawful employment practice occurred;
- wait to file a lawsuit until 180 days have passed from the date on which the complaint was filed with the TWC;
- file a lawsuit no later than two years after the date on which the complaint was filed with the TWC.
The following are common questions and answers that complainants have about the TWC claims process.
Should I File a Complaint with the Texas Workforce Commission or the EEOC?
A person who wishes to bring a claim against an employer under the TCHRA must file their complaint with the TWC. This can be accomplished in one of two ways. An employee may simply fill out and file the TWC’s “Employment Discrimination Complaint Form” directly with the TWC.
Alternatively, a complainant may “dual file” their complaint with both the EEOC and the TWC. A complainant can do this by checking the appropriate box on “EEOC Form 5: Charge of Discrimination” labeled “FEPA,” writing “Texas Workforce Commission” on the blank line labeled “State or local Agency,” and then filing their completed Charge with the EEOC. The EEOC should then forward a copy of their Charge to the TWC. Out of an abundance of caution, complainants who choose this option should contact the TWC’s Civil Rights Division to confirm that the TWC received a copy of their Charge from the EEOC.
Ultimately, the answer to this question depends on the unique circumstances surrounding your situation. You should seek advice from an employment lawyer regarding your specific situation.
Is There a Deadline for Filing My Complaint with the TWC?
Yes. Complaints must be filed with the Civil Rights Division of the TWC not later than the 180th day after the date the alleged unlawful employment practice occurred. If you fail to do so, your claim may be dismissed. It’s therefore imperative that you take prompt action after a violation has occurred.
What Information Should I Include in My TWC Complaint?
If you intend to file a Complaint with the TWC, you will be asked to provide the following information:
- whether you have previously filed your complaint with another governmental agency;
- your full name, address, phone number, and email address;
- whether you are represented by an attorney and, if so, your attorney’s contact information;
- whether you prefer to be contacted by phone or email (email is typically the better option so that you will have a written record of your communications with the TWC for future reference);
- the date you were hired, position held, and whether you are still employed there;
- the name of the human resources officer or highest ranking “officer” (manager) at your work site;
- the complete name of your employer (a company’s legal name may be found on your pay stub, employment contract, employee handbook, or on your employer’s website);
- your employer’s phone number and the address of the job site at which you physically worked;
- the phone number and address of your employer’s corporate headquarters or “company officer”;
- whether fifteen or more people work for your employer;
- whether your employer discriminated against you based on race, color, sex, religion, national origin, age, disability, and/or genetic information;
- whether your employer engaged in retaliation and, if so, the reason for such retaliation;
- the earliest and latest dates that discrimination or retaliation took place;
- whether the unlawful employment action is a “continuing action”;
- the type(s) of adverse employment action(s) or decision(s) taken against you;
- the name and job title of the person or people within your employer’s organization who did the harm;
- whether you complained of the discrimination or retaliation to your employer and, if so, the name and job title of the person(s) to whom you complained and the date or dates on which you complained; and
- whether there were other employees who were treated “more fairly than you” and, if so, their full names and job titles.
Additionally, the TWC’s Complaint Form includes a box where complainants are asked to explain why they believe the employment harm(s) and/or action(s) were discriminatory. Below that, the Form includes a box where complainants are asked to explain the reasons for their employer’s actions. Importantly, if you ultimately have to file a lawsuit, the court will only allow you to bring claims based on the specific allegations that you include in your TWC complaint and facts that the TWC’s investigation of your complaint might reasonably be expected to uncover. It’s therefore important that you be as thorough, detailed, and inclusive as possible when filling out your TWC complaint.
The following cases demonstrate how the details that you include in your TWC complaint can limit the scope of your claims in a lawsuit down the road:
- In Fine v. GAF Chem. Corp., a job applicant submitted a written application for a job opening with a company in February of 1990. 995 F.2d 576, 578–79 (5th Cir. 1993). The applicant believed she did not get the job because of her gender, so she filed a complaint with the EEOC (the federal equivalent of the TWC). Although the applicant’s EEOC complaint mentioned the employer’s denial of her application in February of 1990, the complaint did not mention any other instances of discrimination. The applicant later filed a lawsuit in which she asserted a gender-discrimination claim against the employer based on its decision to hire several males for job openings to which she had verbally applied in November of 1990 (one day before she filed her EEOC complaint). The court held that the applicant could not pursue a claim based on the November 1990 incident because her EEOC complaint made no mention of it. The complaint only mentioned the February 1990 decision not to hire her as the basis for her discrimination claim. The lesson here is that a complainant should make sure that their TWC or EEOC complaint includes the dates, times, places, people, and other details related to every single instance of discrimination.
- In Young v. City of Houston, the court held that the plaintiff could not pursue a claim for sex discrimination because her EEOC complaint only alleged race and age discrimination. 906 F.2d 177, 179-80 (5th Cir. 1990). The takeaway here is that it’s usually in your best interest to be over-inclusive when checking the boxes for the types of discrimination that you are complaining about. A court may not let you bring a claim for age discrimination in a lawsuit unless you checked the “age discrimination” box on your TWC or EEOC complaint and described the specific actions taken against you because of your age. If you have reason to believe that your employer discriminated against you based on multiple protected characteristics or you’re unsure which of your protected characteristics motivated by your employer’s discriminatory actions, you may check multiple boxes on the TWC or EEOC complaint form. For example, if you are unsure whether the discriminatory actions against you were based on your race, color, or national origin, you should consider checking each of those three boxes to preserve your potential claims and then allow your attorney to investigate the matter and then later narrow the scope of your complaint accordingly.
- The plaintiff in Woodman v. WWOR-TV, Inc. filed an EEOC complaint in which she alleged that her former employer fired her because she was too old. 293 F. Supp. 2d 381, 390 (S.D.N.Y. 2003). The plaintiff’s EEOC complaint included the following allegations: “all of my nine colleagues . . . who were fired, except two, were over the age of 40. On the other hand, my counterpart in Los Angeles, who is much younger, was not fired. It seems, therefore, that age was a motivating factor in my employment termination.” The plaintiff later complained in a lawsuit that her employer’s practices, although not intended to discriminate against older employees, nevertheless resulted in the employer’s firing of a disproportionate number of employees who were 40 years old or older. Judges and lawyers refer to this form of employment discrimination as “disparate-impact discrimination.” The court held that the plaintiff could not base her age discrimination claim on these disparate-impact allegations because her EEOC complaint only accused the employer of intentionally discriminating against her because of her age (known as “disparate-treatment discrimination”).
To preserve a claim for disparate-impact discrimination, your TWC complaint should identify and describe an employment policy, procedure, or practice that is neutral on its face, but nevertheless negatively affected you and a disproportionate number of other members in your protected class (race, gender, age, religion, etc.). For example, a job description that states that applicants must be at least 5’10” tall may be neutral toward female applicants on its face, it nevertheless disqualifies a disproportionate number of female applicants considering the average height of women in the U.S. is 5’4”. A female who is otherwise qualified for the job, but does not meet the employer’s minimum height requirement, may have a claim for gender-based disparate impact-discrimination against the employer.
If you are as thorough and descriptive as possible when filling out the TWC Form, you will may need more space than the Form provides to describe your harms, the unlawful actions taken against you, and the discriminatory reasons for your employer’s actions. If you run out of space on the TWC Form, you should finish writing your answer on an extra page, attach the extra page to the Form, make a note on the Form itself referencing the attached page(s), and then file your TWC Form with the extra page attached thereto.
What Happens After I Have Filed My TWC Complaint?
If you have timely filed a complaint with the TWC, the TWC will assign an investigator to your complaint and notify the employer of your complaint. As part of the TWC’s investigation of your complaint, the investigator may contact you, the employer, or any witnesses to obtain facts or additional details about your allegations.
When Can I File a Lawsuit Under the TCHRA?
A plaintiff may bring their TCHRA claim in a lawsuit once 180 have passed from the date on which they filed a timely, sworn, written complaint with the TWC. The plaintiff may, but is not required to, request in writing that the TWC close its investigation of their complaint and provide them with a “Notice of Right to Sue” letter. Within 60 days after receiving a Notice of Right to Sue letter, the plaintiff must file a civil action with the correct court. If you fail to file a lawsuit within the 60-day period, you may permanently lose your right to assert your TCHRA claim in a court of law.
Texas Payday Law
The TWC is responsible for administering the Texas Payday Law. Texas Payday Law covers all Texas business entities, regardless of size, except for public employers such as the federal government, the state or a political subdivision of the state. All persons who perform a service for compensation are considered employees under the Texas Payday Law, except for close relatives and independent contractors.
The Texas Payday Law imposes the following requirements upon employers:
- Employer Wage Withholdings and Deductions: An employer may not deduct or withhold wages from an employee unless (1) ordered to do so by a court of law; (2) authorized to do so by state or federal law (for example, payroll taxes); or (3) the employer has received written authorization from the employee to make the deduction or withholding, and then only for a lawful purpose (authorizations may not be too general or broad).
- Time Periods for Paying Absent, Separated, and Discharged Employees: Employees absent on payday are entitled to be paid upon request on a regular business day. If an employee quits or is otherwise separated from work for a reason other than discharge, the employer must pay them in full by the next regularly scheduled payday. Discharged employees must be paid in full not later than the sixth day after termination.
- Compensable Time at Work: The Texas Payday Law requires that employees be paid for all time worked. Although the Texas Payday Law does not define what qualifies as compensable “work” time, the United States Department of Labor and federal courts have defined compensable work time as all the time during which an employee is necessarily required to be on the employer’s premises, on duty or at a prescribed work place.
- Pay Periods: Employers must pay their employees at least once a month if the employee is not subject to the overtime provisions of the Fair Labor Standards Act. Employers must pay all other employees at least semi-monthly.
- Designated Paydays and Notice Requirement: Employers must designate paydays and must post those paydays in conspicuous areas of the workplace.
- Bonuses and Commissions: Wages paid on a commission basis or bonuses are due in a timely manner, according to the terms of agreement between employee and employer.
- Fringe Benefits: Employees may be entitled to unused fringe benefits (vacation, holiday, sick leave, parental leave, or severance pay) only if the employer provides for these benefits in a written policy or agreement.
The procedures and deadline for filing a claim for unpaid wages with the TWC are set forth on the TWC’s website here.
The Benefits to Hiring an Employment Lawyer to Help You with Your TWC Complaint
Properly completing and filing a TWC complaint can be challenging for someone who has never done so before. Having an experienced employment lawyer on your side may relieve stress and help you achieve the best outcome possible in your case. A knowledgeable and experienced employment lawyer may help you in a variety of ways, including advising you on your rights, helping you prepare your TWC complaint in a manner that preserves your rights, ensuring that your filing deadlines are met, gathering the evidence you will need to prove your claims, coordinating with the TWC after your complaint has been filed, helping the TWC investigate your allegations, and representing you in a subsequent lawsuit.
If you need help with, or have questions about, a TWC complaint, contact the Wagoner Law Firm today for a free case evaluation.