Jury trials and the lawyers and firms who do them are increasingly rare. But it is well worth seeking one out if you have an employment dispute even if you don’t want to go to trial. That is because Jury trial experience informs every decision made in a case and may drive up settlement value leading to better, more informed representation.

A short time ago, at the federal courthouse, I was talking to a named partner from a prominent employment defense firm in Austin, Texas. During a break in his jury trial that I happened to be watching, he told me that the last time he tried a case to a jury was almost four years ago when we were on opposite sides of a state court retaliation claim. At the time of the conversation, I had already done one jury trial that year and would do another in about two months. Moreover, I had done two jury trials the previous year. During the trial we did together almost four years ago, he had remarked to me that although he had represented that particular client for 10 years, this was only the second jury trial he had done for them.

That attorney is far from alone and I could provide several more similar stories about attorneys on both sides of the V . Indeed, according to a 2010 nationwide survey of attorneys who identified themselves as litigators, three out of ten litigators have never tried a case to a jury. See Tracy Walters McCormack and Christopher Bodnar, Honesty is the Best Policy: It’s Time to Disclose Lack of Jury Trial Experience, Voir Dire (Spring 2011). Only 30% of those with five years’ experience had tried a case to a jury. More surprisingly, only 36% of litigators with ten years of experience had tried two or more cases to a jury.

From having done many jury trials, I can tell you that such experience informs every aspect of the cases I work on beginning with the consult. Knowing what facts a jury wants to see, how they want to see them presented, and what might distract them or even what they might ignore, enables me to ask the right questions and provide a candid assessment of the merits of a case. For example, in retaliation cases, juries want to know the timeline of the retaliation. In the two jury trials we won last year, my counsel and I spent much time putting together a clear and concise timeline to show the jury just what happened and when. In both cases, the jury asked to see the timeline during deliberations. Jury trial experience can also reveal things that are counterintuitive. For example, in one sex discrimination and retaliation case, our client had sent an angry, profanity-laced email to her supervisor regarding an event that happened. The defendants hammered the tone of that email as justification for the actions it took against her. But she wasn’t fired because of the admittedly abrasive tone of the email and the jury was not distracted by it. Knowing these things enables me to present my client’s cases in the best possible way. And there is just no substitute for jury trial experience.

Even if you don’t want to go to trial, an attorney with jury trial experience is worth it because it can drive up settlement values. Trials and litigation can be expensive. Having an attorney who is not afraid to go to trial and who has won at trial can make the employer nervous. That is especially true in employment law cases where over three-fourths of lawsuits filed get kicked out by the judge prior to a jury trial. Employers and defense attorneys have more to fear from attorneys who not only have gotten to trial, but have also won major verdicts. When those plaintiff’s attorneys appear in a case, the value of the case goes up because the risk to the employer of losing goes up. In 2016 and 2019, my firm obtained on behalf of our clients, two of the top 100 jury verdicts in the state of Texas according to TopVerdict.com. If you look just at employment law cases on those lists, those verdicts are in the top ten and the top five, respectively. Those accomplishments can help us negotiate better settlements for clients because no employer wants to be dinged with one of the highest verdicts in the state.

If you think you have been discriminated or retaliated against, please contact our office to set up an initial consultation.

When an employee’s addiction is no longer a secret at work, they may be concerned with the possibility of supervisors critiquing their work more harshly and suddenly making frequent performance complaints, or even upper management and human resources making them feel unsupported at work. When this happens, they are sure to have questions.

Can I be fired because of my addiction?

If you are wondering what the answer is to this question, the answer is – it depends. Different facts and circumstances will yield different answers.

Because there is no hard and fast rule, it is important to speak with an experienced employment attorney as soon as possible.

As mentioned in Part 1, the sooner an employee struggling with alcoholism or drug addiction speaks with an employment attorney, they can begin to learn about their rights – whether it’s leave under the Family and Medical Leave Act to seek treatment or accommodations under the Americans with Disabilities Act. Knowing their rights early and taking immediate action may provide an employee with protections they may not have later.

What if my addiction is alcohol?

America is filled with social drinkers. And, an employee drinking on their own time and away from work typically has no bearing on their employment, and it shouldn’t.

Unfortunately, if alcohol abuse leads to performance issues such as decreased productivity, tardiness or absenteeism, or irritability and disputes with coworkers, regardless of whether the consumption was at home the night before, an employee may still be disciplined and or terminated under company policies.

Yes, alcoholism is a disability under the ADA and it is unlawful for an employer to make employment decision based on the fact that an employee is an alcoholic. However, the ADA does not insulate an employee. An employer can still hold an employee to the same performance standards as all other employees.

“But what if my employer holds me to different standards? Joe has been absent three times in the last month. But my supervisor fired me the first time I missed work after he found out I’m an alcoholic. They never do that.” If the employer fails to follow company practices and policies as they relate to an employee simply because they know he or she is an alcoholic, the employer may have legal trouble. Employees with alcohol abuse problems are entitled to the same treatment as any other employee, just like any other employee with a disability they can’t be singled out simply because of their disability. That’s discrimination.

What if I have a drug addiction?

Unfortunately, in some respects, the law does treat alcohol and drug addiction differently in the protections provided to employees. It is unfortunate, because addiction is addiction, and everyone deserves an opportunity to get help and live a normal life in recovery.

Under the ADA, an employee that is currently engaging in the illegal use of drugs is excluded from the definition of an “individual with a disability.” When an employee is excluded from this definition, this means they don’t enjoy the same protections under the law. Sadly, this means that an employer can take adverse employment actions against an employee on the basis of their current illegal drug use.

However, if an employee is in recovery based on past illegal drug use, or is currently receiving treatment, they are protected under the ADA as an “individual with a disability” and protected from discrimination based on that history. Furthermore, they may be entitled to reasonable accommodations if necessary to perform their job.

Reminder: Get Ahead of It

There are far too many nuances to the employment laws that apply to employees that struggle with the disability of alcoholism or drug addiction. The protections provided to an employee are very fact specific. Because the law requires special navigation it is very important to get ahead of your employer and contact our employment attorneys as the first sign of addiction.

In March 2020, Governor Abbott joined several other governors around the nation to formally declare COVID-19 to be a public health disaster. Subsequently, Governor Abbot issued several executive orders limiting commercial activities to only those that were considered “essential businesses.” This meant that many Texans were left without work and eligible to receive unemployment benefits to help them through these troubling times. As we enter the gradual re-opening of businesses, a large swath of pressing questions presents itself to many workers that are worried about what could be seen as a premature action in light of the health risks. I will aim to shed light on two major questions that are frequently posed to us.

If I refuse to go back to work, am I still eligible for unemployment benefits?

If you are currently receiving unemployment benefits and your old employer offers you to return you to work (whether you were furloughed or laid-off) this may interfere with your unemployment benefits. Under the Texas Unemployment Compensation Act (“TUCA”), a worker is disqualified from receiving unemployment benefits when they refuse an offer of suitable work without good cause. The opening up of the economy will put many workers in the tough position of either accepting a job that will most likely pay them less than their unemployment benefits while simultaneously putting them at risk of contracting COVID-19 or losing their unemployment benefits and being left to fend for themselves. This is the unfortunate reality that many Texans will be facing.

While a counter argument can be asserted that due the considerable health risks that COVID-19 imposes on workers, a position offered that requires face-to-face interactions with multiple other people is not suitable work as contemplated in the act. This argument is supported by statutory language of the TUCA, which states that in determining whether work is considered suitable the degree of risk to an individual’s health, safety, and morals must be taken into consideration. However, since the reopening of many businesses comes as a result of Governor Abbott’s executive order, the TWC, an organ of the State of Texas, will most likely side with Governor Abbott in asserting that the work is suitable unless special circumstance exists.

If you find yourself in a situation where you are not sure if you are in one of those special circumstances it is best to talk to trained legal professional in assessing your situation so that you can make an informed decision.

I am an at-risk worker; can I continue working from home?

Even though COVID-19 has left much uncertainty in the workplace, the one thing that is still true is that you still have rights as a worker. For the workers that have been allowed to work from home due to COVID-19, the re-opening of the economy will most likely mean that your employer will request that you resume coming into the office. But what happens if you suffer from a serious medical condition that puts you as an individual with a high-risk for severe illness from COVID-19.

As mentioned above, COVID-19 has not abrogated your existing rights. This means that the American with Disabilities Act is still in full effect. The ADA forbids employers from retaliating or discriminating against employees that suffer from a disability. Further, employers are forbidden from retaliating against an employee for making a request for a reasonable accommodation based on their disabilities. In the case of individuals with medical conditions that puts them at a high risk of suffering from severe COVID-19 infections, they should feel free to ask their employers to continue working from home as a request for a reasonable accommodation for their disability.

It is important to note that there are moments when employers can reject the accommodations sought by their employees. But this should only be after a fact intensive inquiry into the facts surrounding the accommodation.

If you feel like your employer is ignoring the law or if you are seeking guidance on how to proceed, we recommend that you contact an experience employment attorney.

To conclude, these are only two questions of the myriad of issues that are arising as the economy is reopening. If you have other concerns about the reopening of businesses, we encourage you to call our office to make an appointment to talk to an employment attorney.

Unfortunately, we are living in a day and age when a lot of people are being laid off, furloughed, or terminated. According to an article in the Texas Tribune, more than 1.5 million workers in Texas filed for unemployment benefits with the Texas Workforce Commission (TWC) from mid-March to mid-April. This is a staggering number. Additionally, many people have had to quit their jobs because of COVID related issues. This post will generally describe who can apply for unemployment benefits, the process people go through after applying for benefits, the standards TWC relies on to decide if an individual applying for benefits will get them, and the appeal rights for workers who are denied benefits to which they believe they are entitled.

Who can apply for unemployment benefits?

Anyone can apply for unemployment benefits that has lost their job, quit, or had their hours cut. It does not mean that you will necessarily get them, but it does not hurt to try. Even the TWC agrees with this assessment and recently told the El Paso Times that the agency advises anyone who is out of work or working reduced hours due to coronavirus to apply and see if they are eligible. Indeed, this is good advice in times of coronavirus and beyond. Worst case scenario, you don’t get them. Best case scenario, you do.

What happens after you apply for benefits?

After you apply for unemployment benefits, which most people do online, you will be contacted by a TWC representative for additional information about why you are out of work. You need to make sure you get TWC the information it wants by the deadline it gives you. The TWC is also going to contact your former employer about why you are out of work. The TWC will also give your former employer a certain deadline to provide information by. After the TWC has received the information it needs, or if the deadline to provide that information has passed, it will make its decision on whether you will be awarded benefits. You will want to be watching carefully for that decision because if TWC denies your benefits, as will be discussed in more detail below, you will have 14 days from the date the decision is mailed to appeal.

How does TWC decide if you will be awarded benefits?

TWC has to take a number of things into account when determining whether you are eligible for benefits, like how long you worked for the employer and such. But, one of the key things it must decide is if the reason you are out of work is a qualifying reason. Specifically, the TWC has to determine whether the employee “was separated form the last work as a result of a discharge based on work-connected misconduct or a voluntary quit without work-connected good cause.” You’re probably thinking to yourself right about now, what on earth does that mean? Well, it basically means, did your former employer have a good reason to fire you because of something you did or did you quit your job for no good reason that was work related. If your employer fired you for “work-connected misconduct” the TWC will deny your benefits. If you quit “without work-connected good cause” the TWC will deny your benefits. If TWC denies you benefits because it decides you were fired for work-connected misconduct or you quit without work connected good cause, you should contact our office to schedule an initial consultation to discuss your appeal rights.

What appeal rights do you have if TWC denies your unemployment benefits?

If TWC denies your unemployment benefits, you have the right to appeal within 14 days of when the decision is mailed. This is important! It’s not 14 days from when you get it. It’s 14 days from when it is mailed. The decision will have the specific date on it which you must appeal by. Do NOT miss that appeal deadline. The appeal will get you a telephone hearing automatically and you can be represented by an attorney at that telephone hearing. If you have been denied unemployment benefits and want someone to represent you during your appeal hearing, you should contact our office right away to schedule an initial consultation. There are additional appeal rights if your benefits are denied after the telephone hearing. Those appeals also have very short deadlines and those deadlines must be met. If you have been denied your unemployment benefits after your telephone hearing, again, you can contact our office to schedule an initial consultation to discuss further options for appeal.

You saw your boss, coworker, or subordinate do something that you believe is illegal. Maybe they stole money from the company. Maybe they falsified or altered a report. Maybe they lied to shareholders. Maybe they asked you to do something that you believed was illegal. You want to report it, but you also want to know whether you can be fired for your whistleblower activity.

Under both Texas state law and federal law, the definitive answer is . . . maybe? Look, one of the first things most aspiring attorneys learn in law school is that the answer to almost any question is usually “it depends.” Also, note how many qualifiers I put in that sentence! I can’t help it. I’m a lawyer.

Anyway, here are some basic facts on employee whistleblower protection.

There is no general state or federal law that prohibits retaliation against employees who report what they believe to be violations of law.

Under both Texas state and federal law, there are situations where an employee can be explicitly fired for reporting illegal activity. Crazy, right? But not all hope is lost, just keep reading.

There are many employer specific, industry specific, and conduct specific laws that protect private employee whistleblowers.

This post is far too short to list even close to all of the various laws that protect private employee whistleblowers, but here are some of my favorites:

  • 41 U.S.C. § 4712, 10 U.S.C. § 2409 – These two statutes provide protection to employees of private companies that are federal government contractors, subcontractors, grantees, or subgrantees. These are currently my favorite whistleblower statutes.
  • Tex. Health & Safety Code § 161.134-135 – These two statutes protect both employees and non-employees who report violations of law at a hospital, mental health facility, or treatment facility. There is a similar law under the Texas Occupations Code for nurses at Tex. Occupations Code § 301.413(b).
  • Dodd-Frank and Sarbanes-Oxley – These statutes protect employees of publicly traded companies who report violations of securities laws.
  • Surface Transportation Assistance Act – This statute protects employees and drivers of companies that own or lease commercial motor vehicles, liking trucking companies.
  • Motor Vehicle Safety Whistleblower Act – This statute protects employees of car manufacturers, dealerships, or parts suppliers who report defects or other violations of law. I’m including this one because it is a good example of how specific these laws can be.

There are also several laws that protect public employee whistleblowers.

Again, this list is by no means exhaustive, but here are the main ones.

  • Texas Whistleblower Act – this state statute only protects state and local government whistleblower employees who report in good faith violations of law to an appropriate law enforcement authority. Note all of the qualifiers. This is a tricky law, and, generally, employees only have 90 days to bring suit under it.
  • U.S. and Texas Constitutions –. Generally, public employees may not be terminated for speaking out as a citizen on a matter of public concern as a matter of free speech and are also entitled to equal protection of the laws.

The above are just some of the ways whistleblowers are protected for their disclosures. There is a lot more out there and, as you might have already guessed, a lot of qualifications, maybes, possiblys, and “it depends” as to whether your particular situation is protected. The other thing is that statutes of limitations for the above claims vary wildly ranging from as short as 30 days up to 6 years. So really your best bet is to talk to an attorney about your specific case.

Nearly 19.7 million Americans have something in common. Of those millions, those in the workforce keep their pain a secret – the idea of their employers finding out fills them with fear.

Sadly, that fear is not misplaced.

For millions, the battle with alcoholism and drug addiction is a daily fight. And because of the stigmas attached to these disabilities, people suffer in silence.

But what happens when the silence is broken, and the secret is out?

When an employee realizes they need help, they don’t know what steps to take. But they should act early. This is especially true if the employee realizes their work attendance or performance is suffering, or pressures on the job are having a negative effect on them.

This article can in no way fully inform an employee. Because every employee will have their own special set of circumstances and people’s responses are always an unknown variable, know that we are here to help. Workers should know they have a right to:

Speak up and ask for leave under the Family and Medical Leave Act:

When it comes to alcoholism and drug addiction, one of the most difficult steps is, or will be, admitting there’s a problem. But, what next?

Having an alcohol or drug addiction is a disability, but this disability does not insulate an employee from discipline or termination. Employers may still hold all workers to the same work performance standards. So, it is up to the employee to take the necessary steps to get treatment, and the FMLA helps workers do just that.

Under the FMLA, substance abuse is considered a serious health condition for which the employee may be entitled to FMLA leave to receive treatment. Leave under the FMLA for substance abuse treatment is protected if it is provided by a health care provider or a provider of health care services.

If under the FMLA you are an eligible employee, you are entitled to 12 weeks of unpaid leave. If this leave is necessary to receive proper treatment, you have a right to speak up and use it.

Speak up and ask for accommodations under the Americans with Disabilities Act:

Beyond the FMLA, you may be entitled to request a reasonable accommodation from your employer under the ADA.

One of the key functions of the ADA is to create a duty for employers to provide reasonable accommodations to qualified individuals with disabilities.

An employee that suffers from alcoholism or is recovering from alcoholism is considered disabled under the ADA. Usage of illegal drugs is not protected under the ADA, but recovering addicts that are receiving treatment for drug addiction or who have been successfully rehabilitated are also protected.

Under the ADA, these workers may be entitled to reasonable accommodations. Accommodations may include a modified work schedule to attend Alcoholics or Narcotics Anonymous meetings or a leave of absence for treatment. It is imperative that an employee in need of help speak with their health care provider to determine what work accommodations might help them be successful in both their recovery and at work.

When the silence is broken, know your rights and exercise them. If you are not sure where to start, you can contact an attorney to help. If you don’t speak up for yourself no one else will.

We have all been there. You have gotten the job offer, and all that is left to do is sign the employment agreement. But before you sign that agreement, be sure to read it. In order to properly decide what is the best decision for you to make requires you to weigh all the available information. In this spirit, I’d like to touch upon two employment clauses that are gaining widespread attention. In doing so, I hope to highlight some of the dangers and pitfalls that come along when these clauses are ignored.

Non-Compete Clauses

Essentially a non-compete clause – also known as a covenant, not to compete or non-compete agreement – is a private agreement between an employer and an employee where the employee agrees not to go to work for a competing business for a certain amount of time. Many states have made the wise choice of outright banning non-compete clauses. Unfortunately, in Texas these troublesome clauses are alive and well.

Indeed, Texas Business Code Section 15.50 governs what is required of such clauses. In Texas, for a non-compete to be valid and enforceable it must be reasonable as to geographic scope, scope of activities, and time. The operative word here is “reasonable.” This boils down to a fact-intensive inquiry. For example, in some cases a three-year restraint on employment may be completely unreasonable, but in others, a court may find that it is warranted. The same fact intensive inquiry holds true for the other two elements outlined in the Texas Business Code.

The reason why one must take these clauses seriously is because it can potentially restrict one’s ability to find work. With the current state of affairs due to the Covid-19 pandemic, this cannot be ignored. By way of example, if you work in a niche area and your prospects of finding employment outside that niche area are grim, signing an agreement that could potentially put you out of work for a year could be disastrous.

Moreover, another danger behind these types of clauses is that they can be used to harass ex-employees even when the employer has drafted clearly unenforceable agreements. The reason why employers feel embolden is because while a non-compete may be invalid under the law as written, courts have the power to rewrite these clauses to make them valid. This incentivizes employers to broadly write their non-competes, because even if they lose, they can still get a court to do their dirty work.

Furthermore, to engage in litigation to fight a non-compete can take tens of thousands of dollars and significant time on your part. That is why investing in having a trained legal professional up front to analyze your employment agreement can save you time and money down the road.

Arbitration Clauses

The right to a jury trial is the cornerstone of our legal system, yet it can all be waived and thrown away with the stroke of a pen. At an alarmingly increasing rate, employers all over the country are forcing arbitration clauses onto their employees. This mostly overlooked clause can have several ramifications that cannot be seen until and unless you have been wronged.

As a brief overview, arbitration is when parties resolve their dispute through a private arbitrator that has been paid by your employer, not an impartial judge in a court of law. Moreover, unlike a court, arbitration is a mostly confidential process. This means that the misdeeds of the employer will never be heard by the public. This is not even taking into consideration all the procedural quicks that come from arbitration.

Simply put, by essentially paying for the judge, jury and executioner in its cases, employers assume that they will win. From our experience, employers who have arbitration clauses with their employees often value those cases lower and are much less likely to want to resolve the matter.

To conclude, these are only two examples of the myriad of clauses out there of which you need to be aware. Investing in having a trained professional consult on your agreement can save you grief, time, and money in the long run.

In the face of a global pandemic, workplaces as we know them have drastically changed. Working from home has become common place, jobs that were undervalued in our society are now seen as essential, and workplaces once seen as safe now have increasing health and safety risks. The circumstances in this essentially unprecedented time serve as an important reminder to why we fight for the rights of workers and why it is so important to continue advancing that fight. 

As employment lawyers, we meet folks everyday who have been subjected to harassment, discrimination, and retaliation in the workplace. We meet individuals who have been denied overtime pay or reasonable accommodations. We meet individuals who have been fired because they blew the whistle or engaged in protected activity to improve their working conditions or pay. These are the people we fight for. 

Unfortunately, in this time of workforce reductions and mass layoffs, these illegal practices oftentimes only increase. We have already seen this happening. Employers are denying reasonable accommodations to workers who suffer from underlying health conditions that put them at high risk. Employers are terminating workers who complain about health and safety concerns. Employers are denying leave to workers who need to care for themselves or a family member. Employers are conducting layoffs in a discriminatory manor, selecting workers based on their race, religion, national origin, sex, age, or other protected categories. 

Our Firm has been fighting against employers who engage in these types of illegal practices for 20 years. The circumstances may be unique, but the battle is the same. We remain dedicated to helping employees who have been denied the rights to which they are entitled under the law or to help them stand up and assert those rights. 

If your employer has denied you a reasonable accommodation or leave to which you are entitled, if your employer terminated you because you complained about health and safety concerns, if your employer conducted a layoff that affected you in a discriminatory manor, or if your employer retaliates against you for fighting for change, I hope you contact us. 

This situation will not last forever, but it will likely have substantial long-lasting implications. And, unfortunately, there is no guarantee it will not happen again. That is why we must not only fight for immediate individual results, but we must continue the fight for systematic change. We need strong laws to protect workers’ rights. We need universal paid sick leave and a living wage for all workers. We see workers all across the country standing together to demand change. Workers as varied as sanitation workers, grocery clerks, and those in the so-called gig economy are going on strike to demand safe working conditions. That is how true progress happens.

 

“Lopez responds that she suffered the following adverse employment actions as a result of her complaints: (1) she became the subject of actual sabotage in the workplace; (2) she was given a machine that usually had two operators, but she was supposed to operate it alone; (3) the men in the workplace were threatened not to help her; (4) her materials, weighing approximately 50 pounds were intentionally placed out of her reach, further reducing her production. In its reply, Sonic does not address whether the adverse actions on which Lopez relies in her response constitute “adverse employment actions” for purposes of her Title VII retaliation claim.” Lopez v. Sonic Components, LLC, 2015 WL 6549583 *5 (N.D. Tex, Oct. 28, 2015) (internal quotations omitted).

 

Lopez v. Sonic Components, LLC, 2015 WL 6549583, (N.D. Tex, Oct. 28, 2015).

“With regard to the letter, [Plaintiff]’s allegation is that he asked Chief Justice Jefferson to keep the letter confidential, not that Chief Justice Jefferson actually did so. In fact, [Defendant alleged that Chief Justice Jefferson did not answer the letter himself, establishing that the letter had not remained confidential. With regard to the disciplinary complaint, [Defendant] contends that Texas law requires the Commission on Judicial Conduct to keep such complaints confidential. But this misstates that law. . . . ‘[T]he commission may’— but is not required to—‘refuse to release the identity of a complainant” if such a request is made. Likewise, ‘the commission may’—but is not required to—‘keep the complainant’s identity confidential’ if the complainant so requests. At most, this establishes a process that the State Commission on Judicial Conduct is instructed to follow, not the process that it did follow. As with the letter, [Plaintiff] has not alleged that the State Commission on Judicial Conduct did, in fact, keep the complaint confidential.”
 Anderson, 2016 WL 6647759, at *4-*5 (footnotes omitted).