Does employee who does book-keeping have a fiduciary duty?

  
EXISTENCE OF FIDUCIARY DUTY AS ELEMENT OF BREACH OF FIDUCIARY DUTY CLAIM
  

A fiduciary duty is an extraordinary duty which will not be lightly created. Gillum v. Republic Health Corp., 778 S.W.2d 558, 567 (Tex. App.-Dallas 1989, no writ). Fiduciary duties arise as a matter of law in certain formal relationships, including attorney-client, partnership, and trustee relationships. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998).

 

Appellees do not argue that there was a formal fiduciary relationship between the parties; rather, they argue an informal, confidential relationship existed between appellant and Woube and appellant and S-W Transportation.

   

In some circumstances, informal relationships may also give rise to a fiduciary duty. See Crim Truck & Tractor v. Navistar Int'l Transp. Corp., 823 S.W.2d 591, 594 (Tex. 1992). These informal relationships, termed “confidential relationships,” may arise “where one person trusts in and relies upon another, whether the relation is a moral, social, domestic, or merely personal one.” Id. A confidential relationship exists in those cases in which “influence has been acquired and abused, in which confidence has been reposed and betrayed.” Id. (quoting Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 507 (Tex. 1980)).

  

A person is justified in placing confidence in the belief that another party will act in his best interest only where he is accustomed to being guided by the other party's judgment and advice and there exists a long association in a business relationship as well as a personal friendship. Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 304 (Tex. App.-Dallas 2009, no pet.). “The existence of the fiduciary relationship is to be determined by the actualities of the relationship between the persons involved.” Id. (quoting Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1963)). Although we recognize the existence of a confidential relationship is ordinarily a question of fact, when the issue is one of no evidence, it becomes a question of law. Crim Truck, 823 S.W.2d at 594.

  

SOURCE: DALLAS COURT OF APPEALS - 05-10-01119-CV – 4/19/12 (finding no fiduciary duty and reversing judgment for plaintiff)   

  

Employment Discrimination claims under state law (Texas Labor Code, formerly TCHRA): Complaint must be timely filed with TWC

   
Deadline for filing administrative charge against employer with the Texas Workforce Commission’s Civil Rights Division is rather unforgiving. Missed deadline generally precludes law suit, i.e. will typically result in dismissal if the complaining employee goes ahead and files a lawsuit anyhow. 

    

EMPLOYMENT DISCRIMINATION CLAIM UNDER STATE LAW - ADMINISTRATIVE PROCEDURE  

  

Under Chapter 21 of the Texas LaborCode, a person must file a complaint with the TWC [Texas Workforce Commission] no later than the 180th day after the allegedly unlawful employment practice took place. See TEX. LAB. CODE ANN. § 21.202 (West 2006). If the complaint is untimely, the commission must dismiss it. Id.

   

When does the 180-day period start to run?

   
Furthermore, ―[t]he limitations period begins when the employee is informed of the allegedly discriminatory employment decision, not when that decision comes to fruition.‖ Specialty Retailers, Inc. v. DeMoranville, 933 S.W.2d 490, 493 (Tex. 1996). During the claims process, the TWC investigates allegations and determines whether there is ―reasonable cause to believe the employer violated the Texas anti-discrimination law,‖ in order to promote resolution. City of Waco v. Lopez, 259 S.W.3d 147, 154 (Tex. 2008).

  
These detailed administrative procedures are mandatory pre-requisites for a plaintiff to bring a chapter 21 action to court. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804–05 (Tex. 2010) (noting that administrative remedies and procedures must be exhaustedprior to litigation of statutory employment claims); see also Lueck v. State, 325 S.W.3d 752, 762 (Tex. App.—Austin 2010, pet. filed). If a complainant fails to comply with these administrative procedures, the courts are deprived ofsubject-matter jurisdiction. Lopez, 259 S.W.3d at 154.

   
SOURCE: CORPUS CHRISTI - EDINBURG COURT OF APPEALS - 13-10-00379-CV – 12/8/11

WBA: Good-faith report to what whistleblower believed to be appropriate law-enforcement agency or regulator

     
TEXAS WHISTLEBLOWER ACT: WHAT IS PROTECTED?
  

The Texas Whistleblower Act is contained in chapter 554 of the Texas Government Code. See Tex. Gov't Code Ann. §§ 554.001-.010. Section 554.002 of the Whistleblower Act provides

 
(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority. 
 
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
 
(1) regulate under or enforce the law alleged to be violated in the report; or         
(2) investigate or prosecute a violation of criminal law. 

Id. § 554.002.

Pursuant to section 554.0035 of the act, “[s]overeign immunity is waived and abolished to the extent of liability for the relief allowed under this chapter for a violation of this chapter.” Id. § 554.0035.        
   
Under section 554.002, a conclusion that a governmental entity to whom a report is made is not authorized to regulate under, enforce, investigate, or prosecute the law at issue is not determinative as to whether a whistleblower action can be maintained. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002).
 

A party may obtain Whistleblower Act protection if he in good faith believed such governmental entity was an appropriate law enforcement authority as the statute defines the term. Id. In the context of section 554.002(b), “good faith” means (1) the employee believed the governmental entity was authorized to regulate under or enforce the law alleged to be violated in the report, or investigate or prosecute a violation of criminal law; and (2) the employee's belief was reasonable in light of the employee's training and experience. Id. at 321.

  

SOURCE: DALLAS COURT OF APPEALS - 05-11-00480-CV  - 11/3/11 

What is Constructive Discharge in employment law?

 
TERMINATION OF EMPLOYMENT: CONSTRUCTIVE DISCHARGE 
   How does it differ from an ordinary firing?

 

A constructive discharge occurs when an employer makes conditions so intolerable that an employee reasonably feels compelled to resign. See Baylor University v. Coley, 221 S.W.3d 599, 604-05 (Tex. 2007), citing Pennsylvania State Police v. Suders, 542 U.S. 129, 141, 124 S.Ct. 2342, 2351, 159 L.Ed.2d 204 (2004); Hammond v. Katy Independent School District, 821 S.W.2d 174, 177 (Tex.App.--Houston [14th Dist.] 1991, no writ).

Many factors are relevant to the issue, including evidence of badgering, harassment, or humiliation by the employer calculated to encourage the employee's resignation. Davis v. City of Grapevine, 188 S.W.3d 748, 766 (Tex.App.--Fort Worth 2006, pet. denied).

SOURCE: El Paso Court of Appeals - 08-09-00007-CV - 7/6/11 

RELATED LEGAL TERMS: employment disputes, wrongful termination, whistleblower claims, discrimination, retaliation by employer