Discrimination Claims Under Labor Code Chapter 451

AuthorLaura M. Franze
Pages433-472
31-433
Chapter 31
DISCRIMINATION CLAIMS UNDER
LABOR CODE CHAPTER 451
By Laura M. Franze
31:1. INTRODUCTION
31:2. COVERED EMPLOYEES AND EMPLOYERS
A. Only “Employees” Are Protected Under Chapter 451
B. Employers Subject to Chapter 451 Claims
1. Current Law Exempts Non-Subscribers From Chapter 451 Claims
2. State and Local Government Entities as Employers Under Chapter 451
a. Waiver Under the State Applications Act
b. Chapter 501 of the Labor Code
c. Damages Against a State Agency
3. Individuals Are Not Employers Subject to Chapter 451
C. Multiple Employers for Purposes of Chapter 451
31:3. LITIGATING CHAPTER 451 CLAIMS—ELEMENTS OF CAUSE OF ACTION
A. Employee’s Prima Facie Case
1. Employee Engaged in Protected Activity
a. Filing or Instituting a Claim
b. Testifying in a Proceeding Under the Act
2. Employee Acted in Good Faith
3. Non-Discharge Discrimination Against Employee
4. Causal Link and Standard of Causation
a. Direct Evidence of Causation
b. Circumstantial Evidence of Causation
B. Burden Shifts to Employer to State Legitimate Reason for Discharge or Other Adverse Act
1. Neutral Enforcement of Leave Policy
2. Discharge Pursuant to Other Employer Policies
3. Discharge Based on Inability to Perform Job
Texas employmenT law 31-434
4. Replacing Employee Who Fails to Return to Work
5. Discharge for Economic Reasons
6. No Light Duty Jobs Available
31:4. AFFIRMATIVE DEFENSES TO CHAPTER 451 CLAIMS
A. Statute of Limitations
B. Waiver
C. Claims Must Be Compelled to Arbitration
D. Election of Remedies
E. Preemption and Collective Bargaining Agreements
F. Failure to Exhaust Administrative Remedies
G. After-Acquired Evidence
H. Sovereign Immunity
1. Municipalities
2. Agencies of the State
3. Counties
4. School Districts
5. Non-Subscribing Government Entities
I. Effects of Claimant’s Settlement on Related Disability Claim
31:5. REMEDIES
A. Overview
B. Reinstatement
C. Lost Wages and Benefits
1. Paid Lost Wages (Back Pay)
2. Future Lost Wages (Front Pay)
3. Fringe Benefits
D. Mental Anguish
E. Exemplary Damages
1. Elements of Proof Supporting an Exemplary Damage Claim
a. Plaintiff Must Show “Actual Malice”
b. Plaintiff May Introduce Evidence of Defendant’s Net Worth
2. Standard of Review on Appeal Is Elevated
31-435 DisCriminaTion Claims unDer labor CoDe ChapTer 451
3. Limits on Amount of Exemplary Damages
a. Statutory Caps
b. Common Law Limits on Punitive Damages
F. Prejudgment Interest
G. Attorneys’ Fees
H. Duty to Mitigate
31:6. PROCEDURAL AND RELATED ISSUES
A. Pleading Requirements
B. Removal of Chapter 451 to Federal Court Generally Not Permitted
1. Chapter 451 Claim Is Not Preempted by the LMRA
2. Can Courts Exercise Supplemental Jurisdiction Over Chapter 451 Claims?
C. Discovery Issues
D. Bifurcation of Trial
E. Jury Instructions
31:7. SPECIAL ISSUES RELEVANT TO NON-SUBSCRIBERS
A. Defenses to Personal Injury Claims
B. Waiver
C. Removal
31:8. TIPS FOR EMPLOYERS ON COMPLIANCE WITH CHAPTER 451
A. The Need for Leave of Absence Policies
B. Contents of a Good Leave Policy
C. Restricted Duty Policies
D. Other Helpful Policies and Documentation
E. Training of Supervisors in Handling of Workplace Injuries
F. Conclusion

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