Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work.  That raises the question of what equal work means.  The statute itself helps with this question a little bit.  The text of the statute states that work is considered equal if the performance of both jobs requires “equal skill, effort, and responsibility” in addition to both jobs being “performed under similar working conditions.”  But still, what does that actually mean in the real world?

Freyd v. University of Oregon, a recent 9th Circuit case involving a University Professor, addresses that question head on.  In that case, Professor Freyd, a female, was one of fourteen full professors in the Psychology Department at the University of Oregon.  She has been working at the University since 1987.  In 2014, Professor Freyd discovered that she was making between $14,000 and $42,000 less than four of her male colleagues in the same department.  Additionally, in Spring 2016, the Psychology Department did a mandatory annual self-study, which revealed that the average difference in salary between male and female professors was $25,000 in favor of the male professors.  The study concluded that this pay difference was due to retention bonuses paid to male professors far more than female professors.  In March 2017, Professor Freyd sued under the Equal Pay Act.  

The University of Oregon defended the case, in part, by arguing that Professor Freyd did not perform equal work to the other male professors she argued were paid more than her.  Therefore, according to the University of Oregon, the Equal Pay Act did not apply.  So, what were these differences?  Well, all of the professors had different individual responsibilities, ran different programs and received different forms of funding:

[T]he district court arrived at its conclusion on this issue by contrasting the individual responsibilities of Freyd, Mayr, Hall, Fisher, and Allen, including the separate laboratories or projects they supervised. See, e.g., Freyd, 384 F. Supp. 3d at 1291 (analyzing Hall’s work at CoDaC); id. at 1292 (assessing Fisher’s responsibilities managing federal grants); id. at 1293 (commenting on Allen’s position as the director of the Center for Digital Mental Health).

Freyd v. Univ. of Oregon, — F.3d —, No. 19-35428, 2021 WL 958217 at *7 (9th Cir. March 15, 2021).  In other words, because Professor Freyd did not found and run the exact same centers or organizations and did not receive money from the same sources, the jobs were different.  

Can such granular differences, as a matter of law, really render the jobs of two full psychology professors different?

No.  

The 9th Circuit Court of Appeals rejected that argument from the University of Oregon and reversed the district court who had ruled in favor of the University.  The 9th Circuit said that the individual segments of a job were not the proper focus when assessing whether jobs were equal under the Equal Pay Act.  Instead, the Court held that it was the overall job that mattered and whether or not a jury could find that the two jobs had a common core of tasks.  It is worth quoting what the Court said at length:

A reasonable jury could find that Freyd, Fisher, Allen, and Hall share the same “overall job.”8 As full professors in the Psychology Department, Freyd and those three comparators all conduct research, teach classes, advise students, and “serve actively on departmental, college, and university committees and in other roles in service to the institution.” They also “contribute to the University’s goals regarding equity and inclusion” by participating in relevant associations and organizations. Although Freyd and her comparators all perform each of these functions, it is also true that they do not teach the same courses, or supervise the same doctoral students, or manage the same centers. In this respect, they are not identical. But we are unable as a matter of law to pronounce their responsibilities so unique that they cannot be compared for purposes of the Equal Pay Act.

Freyd, 2021 WL 958217, at *7.  This is an important decision from the 9th Circuit because it puts to rest this idea that small differences in a job or that high-level professional or academic jobs are not subject to the EPA.

If you believe that you are not paid the same as someone of the opposite sex, you should contact an employment law attorney to discuss your case.

The federal government is at a risk of fraud because of contracts it makes with and resources it provides to private companies. For example, the federal government contracts with private construction companies to work on federally funded development projects. Another example is money paid to private health care providers as a result of Medicare and Medicaid claims. Unfortunately, it can be difficult for the federal government to detect fraud. That is where the False Claims Act (FCA) comes into play. 

The FCA is a federal law that helps protect the federal government from fraud. In fact, according to the Department of Justice, in the fiscal year ending September 30, 2020, more than $2.2 billion in settlements and judgments were obtained as a result of civil cases brought under the FCA. The FCA allows private citizens to file lawsuits against those defrauding the government on behalf of the government. These are called qui tam lawsuits. 

The FCA is structured the way it is because those who are the most likely to learn about potential fraud against the government are the employees of the companies that are receiving the federal funds. For example, an administrative assistant at a healthcare clinic may learn of false claims being submitted to Medicare, or a payroll specialist may learn of improper payment of required prevailing wage on federally funded construction projects. 

To establish a winning qui tam action, there must be: (1) a false statement or fraudulent course of conduct, (2) made knowingly, (3) that was material, and (4) caused the government to pay out money or to forfeit moneys due. See United States ex rel King v. Solvay Pharm., Inc., 871 F.3d 318, 323-24 (5th Cir. 2017) (citing United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009)). To simplify, a successful qui tam action requires intentional, successful fraud on the government. 

This is a high burden. Accordingly, an employee who suspects fraud may want to investigate first before taking any further action. Indeed, it makes sense for the government to encourage such investigation prior to filing. If an employee determines on their own no fraud is occurring, it will save the government time, energy, and effort it would otherwise have to expend to investigate after an action is filed. 

The question remains, would an employee who decides to investigate potential fraud prior to filing be protected from retaliation if their employer discovers the employee was looking into potential fraud? The answer is yes. Again, it makes sense that the law would encourage employees to investigate on their own. And to encourage such action, the employees must be protected from retaliation regardless of whether fraud is actually occurring. If the law did not provide such protection, why would an employee risk investigating? Likely, they would not.

Courts have made clear that employees are not required to establish an underlying violation of the FCA in order to succeed on a retaliation claim. See Hutchins v. Wilentz, Godman & Spitzer, 253 F.3d 176, 187 (3rd Cir. 2001). A successful underlying qui tam action is not necessary to a FCA retaliation claim. See id. 

Determining what activities constitute “protected conduct” is a fact specific inquiry. But the case law indicates that “the protected conduct element . . . does not require the plaintiff to have developed a winning qui tam action. . . . It only requires that the plaintiff engage in ‘acts . . . in furtherance of an action under [the False Claims Act].’”

Id. (citing United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 739 (D.C. Cir. 1998) (quoting 31 U.S.C. § 3730(h)).).

If you have faced retaliation for investigating or reporting your employer’s potential fraudulent actions against the federal government, you should consult with an employment attorney to explore your options. 

Also, to learn more about qui tam actions, check out my Dallas colleague Deontae Wherry’s blog on the subject: 

https://www.dallasemploymentlawyer.com/the-false-claims-act-suing-your-employer-on-behalf-of-the-government/

After nearly a year of darkness, there is finally a light. We are all on the verge of receiving the Covid-19 vaccine and finally (and responsibly) breaking out of our year-long quarantine. But, what if the worst happens? What if, as you wait for your approaching vaccine appointment, you feel a tingle in your throat; you lose your sense of smell and/or taste; you start to develop a fever; and you realize that, chances are, you have come down with Covid. At this point, along with informing your family and friends, you must inform your employer as well. That is at least two weeks of your life that you will have to spend in isolation, without work. Although the pandemic may be coming to an end, that does not necessarily mean that you are out of luck. The Families First Coronavirus Care Act (“FFRCA”) still has some life in it and may prevent you from missing out on your bills.

The FFRCA was first enacted by Congress in April of 2020 to combat the economic impacts of Covid-19. If your employer has fewer than 500 employees, then they must allow you to take emergency paid sick leave as well as paid family medical leave. Generally, if you are a full-time employee, you may take up to 80 hours of emergency paid sick leave, while a part-time employee may take up to the amount of hours they typically work within a two-week period. You may use the paid sick leave if you are quarantined, if your doctor advises it, or if you have Covid-19 symptoms and are waiting for a diagnosis. Your pay must be at your regular rate, up to a maximum of $511 per day or $5,110 total. Additionally, you may also use emergency paid sick leave if you are caring for an individual under quarantine or if you must care for your child because their school or place of care has been closed due to Covid. In this instance, your employer must pay you at least 2/3 of your regular rate of pay or up to a maximum of $200 per day. In either instance, your employer cannot require you to find a replacement worker to cover your shift. Furthermore, your employer cannot require you to deduct other paid vacation, paid personal leave, or paid sick leave prior to taking your emergency paid sick leave.

Continue Reading The Beginning of the End: The Current Status of the Families First Coronavirus Care Act and Your Rights Under It

In order to make a viable retaliation claim, a plaintiff must generally have evidence of each element of a what is called a prima facie case.  The phrase prima facie simply means “on first impression.”  In the employment law context, a prima facie case means the basic elements of a claim that, if true, give rise to an inference of discrimination or retaliation.  So for a retaliation claim, a plaintiff must usually show the following elements (1) that the plaintiff engaged in protected activity, (2) that the plaintiff suffered a materially adverse action, and (3) that a causal link exists between the protected activity and the adverse action.  If facts establish each of those elements, then under the law, an inference of retaliation arises, which the defendant must then rebut by producing a legitimate, non-retaliatory reason for the adverse action.  The purpose of this post is to briefly discuss what is necessary to show that third all-important causal link element under Fifth Circuit law.

The first thing that needs to be made clear is what level of causation is necessary to show the causal link.  The causal link standard is very low.  According to the Fifth Circuit, all a plaintiff must show to establish a prima facie causal link is that the protected activity and the adverse action are “not wholly unrelated.”  See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).  So how do you do that?

Continue Reading How do you show a causal link between an adverse action and protected activity in retaliation claims?

Hospital workers and employees of other patient care facilities have some of the most difficult jobs out there. The enormous amount of stress, pressure, and difficulty in performing these vital jobs has only been made worse this past year by the global pandemic that has swept across this nation. Given the huge amount of responsibility and the sheer importance of the jobs carried out by hospital workers, it is now more important than ever that COVID-19 safety procedures be followed. This is only possible if workers are allowed to freely report violations of COVID-19 safety procedures. Luckily, Texas law agrees. In this article I will discuss the very basics of the Texas Health and Safety Code and how it may be able to help you create a safer working environment. 

Under the Texas Health and Safety Code, employees of hospitals, mental health facilities, and treatment facilities are protected from retaliation by their employers if they make a report of a violation of law, which includes a violation of the code itself, a rule adopted by the code, or a rule of another agency. Moreover, if a time gap of less than 60 days is between when the report is made and an adverse action, which can be a termination, suspension, or a demotion, takes place, the law states that there is a rebuttable presumption that the adverse action took place because of the report.

Continue Reading The Texas Health and Safety Code: An Often Forgotten Tool in Helping Texas Workers

Black History Month is a time to remember sacrifices and a time to celebrate advancements and achievements that paved the way for others. Certainly, the education and celebration of Black Americans should not be confined to one month. However, the month of February offers an opportunity to commemorate the past and look toward the future.  

When looking to the past, there is no denying that the United States was a country built without wages, a country built on slave labor.  Africans were ripped from their homes, brought to America, then sold and bought to work for nothing.  

There was no ownership in what they built.  There was no reaping benefits of what they sowed. There was merely endless labor for no wages, no rewards.  Everything they did and made was for the profit and benefit of others – monetized by others to build a nation.

In this day and age, no one in the U.S. could imagine a scenario where they would work without pay and be chained and whipped into submission.

Continue Reading Black History Month – Celebrating the Path

The world has been watching the past few weeks as GameStop stock caused chaos in the financial market, resulting in incredibly wealthy institutional investors losing billions. What media outlets have described as a modern-day David vs. Goliath story has captivated many, including me. This story of individual traders uniting and working together to take on the wealthy elite who tend to control the markets is a perfect illustration of the power of the masses to make change. Perhaps this story will inspire the many to work together in other contexts as well, such as in the workplace. 

What happened with GameStop

First off, I do not claim to be any sort of expert on financial markets, and if you really want to get a thorough understanding of what exactly went down with GameStop there are a lot of good resources out there. That being said, the simple, non-technical version is that some individual traders realized how many hedge funds and other institutional investors were shorting GameStop stock and decided to use it to their advantage by rallying the masses primarily via a Reddit forum. 

Continue Reading If You’ve Enjoyed a Bunch of Reddit Users Working Together Against Institutional Investors, You Should Consider Organizing a Union

With the new year brings new changes to the Texas Rules of Civil Procedure. Some of those changes, those to TRCP Rule 169 which creates and governs the process for expedited actions in Texas, are quite significant and could potentially result in an increased number of lawsuits being filed under the Rule. 

Expedited actions under TRCP Rule 169 are essentially lawsuits that meet certain criteria and have special procedures and limitations. These procedures and limitations in turn allow for expedited actins to be fast-tracked to trial, hence the name. Indeed, expedited actions exist to “promote the prompt, efficient, and cost-effective resolution” of lawsuits that do not exceed a certain monetary value and do not seek any non-monetary relief. The key change to Rule 169 is what that monetary value is and, accordingly, what lawsuits can be brought as expedited actions. 

Continue Reading Changes to the Texas Rules of Civil Procedure Allow for More Expedited Actions

In 2019, the attorneys at Wiley Walsh, P.C. acted as lead counsel in two federal jury trials and one arbitration.  With help by attorneys from Wiley Wheeler, P.C. on the jury trials and help by attorneys from Rob Wiley, P.C., our clients prevailed in all three proceedings.  We also co-counseled with the EEOC in a case that resulted in a cutting-edge consent decree against a major airline involving online sexual harassment.  

In 2020, despite a pandemic, shelter-at-home-orders, and the closing of the courts to in person proceedings, we did even better.  Although, there were no trials, our appellate docket was very successful.  

And it started right away.  First, on January 7, the Administrative Review Board reversed summary judgment against one of our clients asserting retaliation under the Surface Transportation Assistance Act.  We alleged that our client was retaliated against by a trucking company for reporting safety issues.  The Administrative Review Board held that our client was entitled to a full hearing on the merits.  That hearing is currently scheduled for April 2021.

Continue Reading 2020 was a very good year for our clients and Wiley Walsh, P.C.

The idea of someone taking our hard-earned wages strikes at the core of the average American. After all, we worked for and earned our paychecks. It should therefore come as no surprise that your employer cannot steal any of your wages. But many corporations and companies have become creative. They have found unique and clever ways to shortchange their workers and steal the wages left over. Nowhere is this more prevalent than in the restaurant industry. Restaurants have consistently targeted waiters and tricked them into illegally handing over their tips. And the worst part is, many of those affected do not even realize it. This article will examine common ways through which restaurants shortchange their workers and examine waiters’ rights under the Fair Labor Standards Act (“FLSA”).

The FLSA was passed to ensure that each and every worker receive the minimum wage as well as overtime pay when employees work for more than 40 hours a week. The only exceptions to this law, however, are restaurants. Although restaurants are required to pay their workers the minimum wage, they are allowed by law to take a “tip credit.” The tip credit allows a restaurant to pay its tipped workers $2.13 an hour rather than the standard $7.25 an hour, the idea being that the wages received plus the tips gained would provide waiters with the minimum wage. Nonetheless, restaurants have found illegal ways to try to circumvent the FLSA and shortchange their workers from the tips they are owed. The following are the most common ways through which restaurants shortchange their workers.

Continue Reading Shortchanged: Wage Theft and Your Rights Under the FLSA