When considering whether to sue a former employee in Texas, you need to think about the the Texas Citizen’s Participation Act (“TCPA”), the state’s anti-SLAPP statute. Litigants are utilizing the 2011 law with increasing frequency to challenge many common employment-related claims.

The intent of anti-SLAPP statutes are to discourage lawsuits filed to chill constitutionally protected rights. Indeed, the Texas law’s stated purpose is to “safeguard constitutional rights of persons to petition, speak freely, associate freely, and otherwise associate in government.” Under the TCPA, a plaintiff’s claims will be dismissed and the plaintiff can get “slapped” with a bill for attorneys’ fees if: (1) the claims relate to the movant’s exercise of its rights of petition, association, or free speech; and (2) in turn, the plaintiff can’t show “clear and specific” evidence for each essential element of his claims, as set forth in the pleadings.

Although the TCPA was intended to provide a narrow off-ramp early in the litigation process for frivolous claims targeting constitutional rights, everything’s bigger in Texas — including the scope of these protected rights. As drafted (and as interpreted recently by some courts), the statute has the potential to be applied broadly. Of note:

  • The right of “free speech” is implicated by a communication “in connection with a matter of public concern.” “Public concern,” in turn, is defined to include, among other things, communications about “health or safety,” “environmental, economic, or community well-being,” or any “good, product or service in the marketplace.”
  • The right of “association” defined in the statute requires only a communication “between individuals who join together to collectively express, promote, pursue, or defend common interests.”

Some employers have turned this broad language to their advantage. Late last year, the Southern District of Texas applied the TCPA to dismiss state law discrimination claims brought by a doctor against her former employer after her termination. Her employer filed a TCPA motion to dismiss on the grounds that the suit was related to the employer’s “communications” regarding the doctor’s “competence” (n.b: the exercise of the right of free speech). Since this case involved a doctor, the court determined that the communications at issue involved a matter of public concern in “health or safety,” and it dismissed the implicated claims since the plaintiff’s pleadings alone did not establish each element of her claims.

But because the work done by almost any company, including the work performed by its employees, relates to matters of health, safety, the environment or to a “good, product or service in the marketplace,” employers should be equally aware that when they sue a former employee, they may face the same anti-SLAPP defense motion. In this legal climate, the best way to defend against a SLAPP is to assume you’ll be SLAPP’ed and prepare for it: marshal your evidence before filing suit, and make sure that evidence is reflected in your initial pleadings.