Chapter § 6-48 § 451.001. Discrimination Against Employees Prohibited

• Jurisdiction: United States

6-48 § 451.001. Discrimination Against Employees Prohibited

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers' compensation claim in good faith;
(2) hired a lawyer to represent the employee in a claim;
(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or
(4) testified or is about to testify in a proceeding under Subtitle A.

6-48:1 Commentary

• Martin v. Fasken Oil and Ranch Ltd., No. 11-18-00111-CV, 2020 WL 1624950 (Tex. App.—Eastland 2020) (summary judgment affirmed for employer; excellent deposition excerpts of plaintiff acknowledging lack of evidence of termination for filing a workers' compensation claim; court declined to infer animus from ambiguous statement by manager on employees paying for own medical care when they are at fault for an on the job injury).
• Ellis v. Dallas Area Rapid Transit, No. 05-18-00521-CV, 2019 WL 1146711 (Tex. App.—Dallas Mar. 13, 2019) (summary judgment affirmed because of governmental immunity).
• Tawil v. Cook Children's Healthcare System, 582 S.W.3d 669 (Tex. App.—Fort Worth 2019) (excellent discussion of factors a court can consider in granting or denying summary judgment; court declined to find that employer decision not to terminate at once for a policy violation is not evidence of animus but rather of the opposite; good discussion of appeals court split on pretext issue; a must-read for lawyers in area covered by Fort Worth Court of Appeals and excellent resource for employer lawyers throughout Texas).

6-48:1.1 Who Is Protected and Who Is Not

The threshold question for any anti-retaliation statute is straightforward: who is protected and who is not? Here, only employees whose employers are subscribers to the workers' compensation system may avail themselves of the protections of this provision.

• City of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995) ("[F]orbidding retaliation against an employee for seeking monetary benefits under the Workers' Compensation System presupposes that the employer is a subscriber.").
• Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998) (employers that do not subscribe to the Texas Workers' Compensation System are not subject to liability under Section 451.001).

6-48:1.2 Section 510 Claim

Nevertheless, employees of a non-subscriber who believe that the employer terminated them for seeking benefits under a non-subscriber benefit plan may bring a Section 510 claim under the Employee Retirement Security Act for retaliation.

• Bernal v. Randall's Food & Drugs, No. CA 3-96-CV-3464-R, 1998 U.S. Dist. LEXIS (N.D. Tex. Mar. 24, 1998).

If so, employers need to closely scrutinize any state court petition to determine if there are grounds for removal to federal court. If so, be sure to plead complete preemption (and not conflict preemption) in the removal notice.

• Meyers v. Tex. Health Res., No. 3:09-CV-1402-D, 2009 U.S. Dist. LEXIS 104609 (N.D. Tex. Nov. 9, 2009).

But the suit is not removable if the plaintiff is only seeking benefits from the plan.

• Hook v. Morrison Milling Co., 38 F.3d 776 (5th Cir. 1994).

6-48:1.3 Working for a Subscriber and a Non-Subscriber

What about the possibility of an employee working for a subscriber and a non-subscriber? Entity No. 1 is a non-subscriber and is affiliated with Entity No. 2, which is a subscriber. If an employee is terminated from Entity No. 1, may he bring suit under Section 451? One Texas case addressed this issue.

• Luna v. Gunther Honey, Inc., No. 09-05-207, 2005 Tex. App. LEXIS 10582 (Tex. App.—San Antonio Dec. 22, 2005) (plaintiff argues that subscriber and non-subscriber entities are an integrated employer, and thus he may bring a Section 451 claim even though he works for the non-subscriber; court rejects argument and seems to suggest that even if an integrated enterprise, a Section 451 suit would nevertheless be precluded).

Recently, the Fifth Circuit agreed with this view.

• Burton v. Freescale Semiconductor Inc., 798 F. 3d 222 (5th Cir. 2015) (noting that while the Texas Supreme Court has not yet decided this issue, it is more than likely that it would, based on United States Supreme Court precedent, hold that a non-subscriber is not amenable to a retaliation lawsuit).

In any event, a plaintiff must allege facts in support of the argument that Entity No. 1 and Entity No. 2 are a single enterprise, and name both entities as defendants. The failure to...