Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Employees with disabilities face many potential obstacles in the workplace. Having invisible disabilities adds another layer of unique challenges.

Invisible disabilities are conditions that are not immediately apparent to others, such as chronic pain, mental health conditions, or autoimmune disorders. For those with invisible disabilities, your supervisors and colleagues may have no idea that you even have a condition or may need accommodations.

In Texas, employees with invisible disabilities should be aware of their rights and take steps to protect themselves. This blog outlines essential strategies for employees with invisible disabilities to safeguard their rights and well-being at work.

Understanding Invisible Disabilities

Invisible disabilities encompass a wide range of conditions that are unlikely to be obvious to others but can significantly impact an individual’s daily life.

Examples may include:

– Chronic illnesses (e.g., fibromyalgia, Crohn’s disease, ulcerative colitis)

– Neurological conditions (e.g., epilepsy, multiple sclerosis)

– Learning disabilities (e.g., dyslexia, ADHD)

– Mental health conditions (e.g., depression, anxiety, PTSD)

– Psychiatric conditions (e.g., bipolar disorder)

Know Your Rights Under the Law

Employees with invisible disabilities in Texas are protected under federal and state laws. Key protections include:

·      Americans with Disabilities Act as Amended (ADAAA): The ADAAA prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to qualified employees. Note that the ADAAA’s protections do not apply to every employer or to every request for reasonable accommodations. Contact a Texas employment lawyer to learn more.  

·      Texas Labor Code: This state law mirrors the ADAAA’s protections, generally prohibiting disability discrimination and requiring reasonable accommodations.

Disclosing Your Disability

Unlike with more obvious disabilities, for those suffering with invisible disabilities, disclosure of at least some information will be necessary in order to assert your protected rights. Disclosure is key to ensuring that you are accommodated. Consider the following factors before disclosing:

·      Necessity for Accommodations: If you need reasonable accommodations to perform your job effectively, you will need to disclose your disability to your employer.

·      Privacy: Importantly, sharing all the specific details of your conditions with your teammates and supervisors is not necessary. Start by contacting someone at human resources and letting them know that you need to apply for a reasonable accommodation. Share the information necessary to support your accommodation request. Then, work with human resources to identify what, if any, supporting documentation you need to provide from your medical provider.

Requesting Reasonable Accommodations

Reasonable accommodations are adjustments or modifications that enable employees with disabilities to perform their job duties. Examples include flexible work schedules, remote work options, ergonomic workstations, and modified duties. To request accommodations:

·      With your medical provider, determine what potential accommodations will help you perform your job effectively.

·      Communicate your request to your employer and provide them with relevant medical documentation if necessary.

·      Work collaboratively with your employer to identify and implement suitable accommodations. If the employer requests, discuss alternative accommodations as well.

Protecting Yourself from Discrimination

Despite legal protections, discrimination can occur. Some tips for protecting yourself include:

Documenting Everything: Keep records of all communications with your employer regarding your disability and accommodations. Also ensure that you have or obtain medical records to support your invisible disability diagnosis in the event you need to request an accommodation.

Reporting Discrimination: If you experience discrimination, do write in a report of discrimination to your employer. Also feel free to contact one of our employment lawyers to obtain guidance on next steps.

Conclusion

Employees with disabilities, visible or not, have rights to federal and state protections. By understanding your rights, you will feel more empowered to assert your rights and obtain support in the workplace. Remember—you are not alone. Resources are available to help you navigate these employment concerns and thrive in your career.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Amended Sexual Harassment Laws in Texas

Prior to 2021, sexual harassment claims against employers in Texas were quite limited. Newly enacted laws in 2021 expanded protections for employees asserting sexual harassment claims. Almost all employers may now face liability for these types of claims, including employers with only one employee. Specifically, under the 2021Texas Commission on Human Rights Act (TCHRA) amendments, an “employer” is “a person who employs one or more employees or acts directly in the interests of an employer in relation to an employee.” Section 21.141 Texas Labor Code.

Acts of Sexual Harassment as Defined in TCHRA

Sexual harassment can take form in many ways. Generally, sexual harassment is unwelcome behavior rooted in a sexual nature. As defined in Section 21.141(2), this unwanted behavior is a sexual advance or request for a sexual favor, or other acts whether verbal or physical of sexual nature which affect the terms, conditions, or privileges of an employee’s employment. Whether explicitly or implicitly, sexual harassment can be found in numerous forms. This is true even where an employee has submitted to or rejected the sexual advance, request, or favor.

Staffing Agency Liability

Well, what does this mean for staffing agencies and how does liability attach? The inquiry to assess staffing agency liability for sexual harassment claims is whether the staffing agency is an employer for TCHRA purposes. The answer lies within chapters 21 and 91 of the Texas Labor Code. A staffing agency may qualify as a professional employment organization (PEO).  As a PEO, a staffing agency can also qualify as a co-employer where the staffing agency is a “party to a co-employment relationship.” Section 91.001(3-a) Texas Labor Code.

There is a recent state court case which casts light on the distinction. In Harbor America Central, Inc. v. Armand, the court held that a “professional employer organization” (PEO), can be an “employer” appropriately named in an action under the TCHRA (which is Chapter 21 specifically of the Texas Labor Code). Harbor America Central, Inc. v. Armand, ___ S.W.3d ___, 2024 WL 1289596 (Tex. App.—San Antonio March 27, 2024). However, the inquiry does not end here.  To be liable as an employer under Chapter 21, the staffing agency/PEO must still satisfy the definition of an employer under Chapter 21 and be an employer of the claimant. In this case, there was no dispute that the PEO qualified as an employer under Chapter 21 because it was engaged in commerce and had more than 15 employees.

However, to be an employer liable to a claimant under Chapter 21 the employer must have an employment relationship with the claimant. In this sexual harassment case, the defendant staffing service’s contract with the client employer included multiple provisions suggesting the staffing service was a joint employer of the claimant-employee. This is where the joint employment liability theory lies present.

However, the court of appeals found that the district court erred in finding as a matter of law that the staffing service was the claimant’s employer. There were issues of fact regarding the staffing service’s control over the claimant and the economic realities of their relationship. As a result, the court of appeals remanded the case for additional proceedings.

In sum, staffing agencies may be held liable for sexual harassment claims. In order to be held liable, a claimant must prove that the staffing agency is considered an employer for purposes of the Texas Labor Code. The 2021 amendments to Chapter 21 of the Texas Labor Code, TCHRA, affords greater protections for employees. In the years to come, it’ll be interesting to see what other avenues of recourse employees may have against a non-traditional employer. While the 2021 amendments were a great step in the right direction, Texas laws are still generally employer friendly.

Was your employer made aware of your sexual harassment claim?  An employer is liable for sexual harassment if it knows or should have known about the harassment and failed to act. Employers must take immediate and appropriate corrective action. Don’t hesitate to book a consultation with our firm to discuss your potential employment law claim.

Areyana N. Johnson is a Trial Attorney located in our Houston office of Wiley Wheeler, P.C. Additional employment law blogs from Ms. Johnson can be accessed here.

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

The recent decision by Judge Ada Brown of the U.S. District Court for the Northern District of Texas in Ryan, LLC v. Federal Trade Commission, No. 3:24-CV-00986-E (N.D. Tex. 2024), has significant implications for employees, particularly those bound by non-compete agreements. As a plaintiff’s employment attorney in Texas, I often see the unfair, predatory and restrictive effect of these agreements on employees’ ability to work freely and earn a fair wage. This decision is a major setback in the FTC’s attempt to fix this problem for American workers.

Background of the Case

The central issue in Ryan, LLC v. Federal Trade Commission revolves around the FTC’s newly introduced “Non-Compete Rule,” encapsulated in 16 C.F.R. § 910.1-.6. This rule aims to make most non-compete agreements unenforceable, allowing employees to work where, when and how they choose. The plaintiffs, comprising Ryan, LLC and several business organizations including the Chamber of Commerce of the United States of America and the Texas Association of Business, challenged the FTC’s authority to enforce this rule. Judge Brown, who was appointed to her position by President Trump in 2019, found that the Rule is likely unlawful and should be halted pending further evaluation.

Key Points of the Court’s Decision

1. Judge Finds that FTC Lacks Substantive Rulemaking Authority:

            Judge Brown’s decision primarily hinges on the interpretation of the Federal Trade Commission Act (FTC Act). She found that the FTC lacks the substantive rulemaking authority under Section 6(g) of the FTC Act to regulate unfair methods of competition through this Non-Compete Rule, despite the Statute explicitly providing the FTC the power to “make rules and regulations for the purpose of carrying out the provisions of this subchapter.”. 15 U.S.C. § 46(g). Judge Brown held that this language in the FTC Act only empowers the FTC to prevent unfair methods of competition through case-by-case adjudication, not rulemaking.

2. Judge Finds the FTC’s Decision to Make the Ban was Arbitrary and Capricious:

            Although the FTC has been studying non-compete agreements and the potential effects of banning them since 2018, Judge Brown also found that the FTC’s decision to ban non-compete agreements was an arbitrary or capricious decision – essentially, that there was no good reasoning to ban non-compete agreements in this way. The FTC held public hearings, workshops, and reviewed both academic studies and public comments on non-compete agreements for approximately 5 years before proposing its first draft of the non-compete ban. Judge Brown, however, found these efforts were not enough to make a reasoned decision on whether or not to ban non-compete agreements because “it is unreasonably overbroad without a reasonable explanation.” Specifically, Judge Brown found the FTC’s studies of States’ non-compete regulations to be “completely inapposite” to the FTC’s ban, because the States’ regulations were not as broad and were based on “specifical factual situation(s).”

3. Impact on Employees:

The preliminary injunction granted by the court postpones the effective date of the FTC’s Non-Compete Rule as applied to the plaintiffs. For now, Judge Brown’s decision means non-competition agreements are not banned by the FTC Rule. This decision leaves employees in a state of uncertainty, as the enforceability of their non-compete agreements remains in limbo.

The Unfairness of Non-Compete Agreements for Employees

Non-compete agreements have long been criticized for their restrictive nature and the unfair burden they place on employees. These agreements often limit workers’ ability to seek better job opportunities, negotiate higher wages, and fully utilize their skills and expertise. In Texas, while non-compete agreements must be reasonable in scope, duration, and geographic reach, they still pose significant challenges for many employees.

For instance, an employee bound by a non-compete agreement might find it difficult to switch jobs within the same industry, even if their new role does not directly compete with their former employer. This restriction can stifle career growth and perpetuate wage stagnation, particularly for mid-level and entry-level employees who lack the bargaining power to negotiate more favorable terms.

Implications for Employees

Employees should be aware that while Judge Brown’s decision halts the immediate implementation of the FTC’s rule, it does not resolve the broader debate over the enforceability of non-compete agreements. The court’s decision leaves many employees in a state of uncertainty. Those who were hopeful that the FTC’s rule would provide them with newfound job mobility must now wait for further legal developments. In the meantime, employees should document any potential abuses of non-compete agreements by their employers and be prepared to challenge overly restrictive covenants.

Looking Ahead

The court has indicated that it intends to rule on the ultimate merits of the case by August 30, 2024. This forthcoming decision will likely provide further clarity on the FTC’s authority and the future of non-compete agreements. Employees should stay informed about developments in this case and be prepared for potential changes.

Conclusion

The Ryan, LLC v. Federal Trade Commission decision represents a significant moment in the ongoing debate over non-compete agreements and the FTC’s regulatory authority. While the court’s decision offers a temporary pause, the broader implications for non-compete agreements and employment law will continue to unfold in the coming months.

In the meantime, employees should continue to operate within the existing state laws governing non-compete agreements, ensuring that their rights are protected and that they are not unfairly restricted from pursuing new employment opportunities. This case highlights the dynamic nature of employment law and the need for vigilance and adaptability in navigating its complexities.

If you would like to speak with an attorney regarding your non-compete agreement, please reach out to Rob Wiley, P.C. at (512) 271-5527 or https://www.wileylawyers.com/.

Areyana Johnson
Austin/Houston Employment
Trial Lawyer Areyana Johnson

On May 31, 2024, the Occupational Safety and Health Administration (“OSHA”) Final Walkaround Rule went into effect. Initially published on April 1, 2024, the new rule amends 29 C.F.R. 1903.8(c). This rule sets forth the guidelines on who is permitted to be present for an OSHA inspection.

What is 29 C.F.R. 1903.8(c)?

29 C.F.R. 1903.8(c) is an OSHA regulation which protects an employee’s right to select and authorize a representative to accompany the OSHA Compliance Officer conducting an inspection of the employee’s workplace. Previously, an employee was limited in selection of a representative. Specifically, an employee could only designate an employee of the employer as the representative or a third party deemed “reasonably necessary”.  A reasonably necessary third party is an individual who possesses credentials and expertise in the health and safety sector.

Well, those limitations are no longer in effect. An employee is no longer limited to a third party who is deemed reasonably necessary. In other words, an employee may authorize a representative who is a third party not in possession of formal credentials. The only caveat to this is where a representative who is not an employee of the employer nor a reasonably necessary third party, an OSHA Compliance Officer retains discretion to determine the validity of the third party’s presence. Good cause of the third party’s presence is required to effectuate an efficient and effective inspection of the employee’s workplace. So, while the employee is somewhat free to pick an individual to accompany the OSHA Compliance Officer on the inspection, the compliance officer has the final say on whether the presence surpasses muster.

How Will the OSHA Compliance Officer Determine Good Cause for a Non-Reasonably Necessary Third Party?

The OSHA Compliance Officer may pose a series of questions to the third party. These questions will pertain to the third party’s knowledge, skills, or experience in dealing with hazardous materials or conditions in the workplace, similarly situated workplaces, or relevant communication skills when assessing the effectiveness and efficiency of the third party’s presence. So, while the amended rule virtually covers any individual to be selected for the inspection, it is a best practice for an employee to select an individual who satisfies at least one of the criteria above-mentioned to withstand the potential limiting discretion of an OSHA Compliance Officer.

What If My Employer Refuses to Permit My Representative Access to the Workplace?

It appears there are only a few instances where an employer can ultimately prevent a representative from accessing the workplace. An employer may still limit entry of employee authorized representatives where the protection of trade secrets is threatened. Additionally, employers may attempt to thwart access to a third party, but this is not permanent. If you find yourself in a situation where the employer is preventing access by a third party, an avenue of relief is to seek a warrant before conducting the inspection. This is a tool utilized by OSHA. It is important to note that even after the warrant is obtained, the OSHA Compliance Officer may still order the third-party representative to abide by the employer’s policies and procedures similar to an employee of the employer.

In sum, the Final Walkaround Rule is broader than its predecessor.  The amended rule has several practical implications. Employees are now permitted to designate almost any individual to be present for the OSHA workplace inspection even where the representative possesses zero relevant experience or knowledge about the workplace. Currently employees are also not regulated as to when or how they may authorize their inspection representatives. Ultimately, where a representative is a third party, the OSHA Compliance Officer has the discretion to determine whether the third party is reasonably necessary to conduct an effective and efficient walkthrough inspection.

For more information on the OSHA Final Walkaround Rule, please see here.

Areyana Johnson is an Employment Law Trial Attorney located in the Houston office of Wiley Wheeler, P.C. For more info on Ms. Johnson, see more details here.

I love movies and have so many fond memories of Alamo Drafthouse in Dallas. I have a season pass, but I’m not sure when I can use it again.  The last movie I saw was a special showing of Hitman.  I was shocked and disheartened when all five Alamo Theaters suddenly closed in Dallas. What I loved about Alamo Drafthouse was its quirkiness and amazing employees.  It was a unique place of joy that enhanced the movie-going experience.

As an employment lawyer, I know that sudden closures often viloate the federal WARN Act. The Worker Adjustment and Retraining Notification (WARN) Act is a federal law designed to protect employees by requiring large employers to provide a 60-day notice in advance of major layoffs or plant closures. The goal is to give workers time to prepare for the loss of their jobs, allowing them to seek new employment or undergo retraining.  

Even if a company goes bankrupt, they still have to comply with the WARN Act.  And a company with assets – like a bunch of movie theaters and real estate – often has assets to pay its fired employees.  Becasue Alamo Drafthouse failed to provide the required notice, they are obligated to pay 60 days of pay and benefits to affected employees!  It’s black and white.  We sometimes call these laws “strict liability” statutes.

I’m a board certified Texas labor and employment lawyer, this is my analysis of why I believe that Alamo Drafthouse (or at least it’s franchisee) broke the law:

First, the WARN Act only applies to employers with 100 or more full-time workers. But according to WFAA news, there are 600 employees effected in this layoff.  So clearly there were more than 100 workers at the five locations.

Second, the WARN Act requires a mass layoff affecting 50 or more employees.  Again, more than 50 employees were laid off.

Third, Alamo Drafthouse doesn’t fall under an exemption – like a natural disaster or unforseeable circumstance.  These theaters had been losing money.  This is what makes me really mad.  The owners saw this coming, and they could have prepared, but they didn’t.

Finally, Alamo Drafthouse failed to give the federally required sixty day notice.  There’s no doubt about this.  It seems to me that Alamo Drafthouse (or at least it’s franchisee) is guilty.

The main remedy of the WARN Act is 60 days pay. Bankruptcy is not a defense against the WARN Act and unpaid wage claims usually take priority over other claims. It’s possibly that the individual owners themselves may be liable under the Texas Fraudlent Transfer Act or if the owners weren’t following the formal rules that govern companies.

I regularly file lawsuits in federal court representing workers.  I would love to represent workers of Alamo Drafthouse and Two is One, One is None, LLC who were screwed over in this layoff.  My law firm allows potential clients to schedule an initial consultation by calling 214-528-6500.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

After signing a severance agreement, employees are understandably eager to be paid the funds they are owed. That’s why many employees are often frustrated to hear that they will not be paid immediately signing a severance. For workers over 40, there’s a very specific legal reason for this.

The Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act (ADEA) are two significant pieces of legislation in the United States aimed at protecting older workers from discrimination in the workplace. When it comes to severance agreements, both laws have specific requirements that employers must adhere to that mean a delay in payments:

OWBPA Requirements:

The OWBPA applies specifically to waivers of age discrimination claims in severance agreements.

When thinking of the OWBPA, it’s important to consider two magic numbers: 21 and 7. Employees over the age of 40 must be given at least 21 days to consider the agreement. These 21 days start ticking from the receipt of the original agreement and does not reset with every edit. However, you do have the option to sign before those 21 days are over.

The OWBPA also requires that the employee over 40 have an additional seven days to revoke their acceptance after signing. These seven days must lapse and cannot be waived. This means that the agreement is not effective until eight days after signing. So, if the severance says that the company has 20 days after the effective date to pay you, that means that they have 28 days from the day of signing because those seven days must first lapse to give you the option to revoke before going into effect. Still confusing? Let’s use an example.

Sally is 46 years old. Sally is presented with a severance from her former employer on January 1. The agreement says that Sally has 21 days to consider the agreement, 7 days to revoke, and that the severance will be paid 20 days from the effective date. Sally signs on January 3. The agreement becomes effective on January 11, eight days after signing. The company then has until January 31 to pay Sally. If they fail to pay her by then, she will be able to sue them for breach of contract.

Also to be valid under the OWBPA, the agreement must be written in a manner that is understandable to the average employee. Additionally, it must provide consideration (usually in the form of additional benefits or monetary compensation) beyond what the employee is already entitled to receive. At the federal level and in Texas, a very pro-employer state, employers are not legally required to give terminated employees a severance. What the employee may already be legally required to receive are unpaid wages or vested benefits.

ADEA Requirements

That brings us to the ADEA. The ADEA prohibits age discrimination against employees who are 40 years of age or older. Under the ADEA, waivers of age discrimination claims in severance agreements must comply with the requirements outlined in the OWBPA, as discussed above.

Additionally, the ADEA requires that the individual knowingly and voluntarily waives their rights to sue for age discrimination. Courts should scrutinize ADEA waivers closely to ensure that they are not overly broad and that employees understand what rights they are giving up.

Employers who fail to meet these requirements risk having the waiver declared unenforceable, meaning that the person may still sue them for age discrimination. So, you’ll often see clauses in these severance agreements affirmatively agreeing that agreement complies with the ADEA and OWBPA. But it still might not! That’s why it’s crucial to consult with an attorney before signing a severance, especially if you are over the age of 40.

Do you feel you’ve been subjected to age discrimination at your job in Texas? Contact me today to schedule a consultation to discuss your potential claim, or a document review to discuss a severance you have been offered.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

Employment is a really unique area of law. In Texas and federally, you cannot go straight to filing a lawsuit against your employer after they have violated your rights. This is how employment law seriously differs from, say, personal injury, where you could file a lawsuit pretty immediately.

In most employment law claims in Texas and in the federal court system, you must first exhaust administrative remedies and receive permission to sue your employer. When people think of employment law, they think mainly of discrimination and retaliation of protected categories of people (such as race, gender, sexuality, age, and disability). For these kinds of claims, the agencies that you would file with in Texas would be:

·      Equal Employment Opportunity Commission (EEOC) – For federal discrimination and retaliation claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA)

·      Texas Workforce Commission (TWC) – For Texas Labor Code discrimination and retaliation claims)

There are some claims, however, where there’s no requirement to exhaust administrative remedies. For example, for a claim under the Family Medical Leave Act, you can go straight to filing suit.

Even trickier, there are some claims where the government is the only entity to file a claim and there is no right to file an actual lawsuit. Examples of this would be union or labor disputes reported to the National Labor Relations Board (NLRB) under the National Labor Relations Act (which protects union activity and protects you against retaliation for things like discussing wages and attempting to unionize, even if a union isn’t ever formed), or whistleblower claims to OSHA under the Occupational Safety and Health Act.  

So, for claims where administrative remedies must be exhausted, the

  1. Filing a Charge: The first step in exhausting administrative remedies is to file a charge of discrimination or other employment violation with the EEOC or TWC. This charge must be filed within a specific time frame—typically 180 days from the date of the alleged discriminatory act. In some cases, this period may extend to 300 days if the charge is also covered by state or local laws.
  2. Agency Investigation: Once a charge is filed, the agency will notify the employer and conduct an investigation. The investigation depends on the agency. For example, at the EEOC, the investigation will primarily include the employer submitting its response to the allegations in the employee’s charge. The employee will have a chance to submit a rebuttal to this position statement. An NLRB investigation involves an NLRB investigator calling the employee, interviewing them, and taking a detailed statement.
  3. Agency Determination: After completing its investigation, the agency will make a determination. However, most people receive a “neutral” finding where there is no affirmative finding of discrimination one way or another. The EEOC only issues cause findings (findings where they affirmatively say discrimination occurred) in less than 5% of claims. This does not mean that only 5% of claims are meritorious, though. The EEOC oftentimes cannot conclude an investigation in what it deems a reasonable amount of time and instead issues the employee a right to sue.
  4. Right to Sue: Receiving a “Right to Sue” letter is a critical step in exhausting administrative remedies. It signifies that the employee has fulfilled their obligation to attempt resolution through the administrative agency and can now file a lawsuit in court. A right to sue from the EEOC expires in 90 days. A right to sue from the TWC expires in 60 days. This means that employees must move quickly to file a lawsuit after exhausting administrative remedies.

 As you can tell, this is a complicated process that presents many roadblocks for employees. That’s why it’s so important to hire an attorney to guide you through it. Call me today or one of my colleagues in Austin or Houston for help.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Yes, it’s true. You have a duty to engage in the interactive process after submitting an accommodation request to your employer. The inquiry does not end after submission of your request. This blog will dive deeper into what is required by the employee during the interactive process.

Interactive Process

An accommodation request triggers the obligation of the employer to do one of two actions: (1) provide the requested accommodation or (2) seek information to evaluate the employee’s needs. Option two is more common as sometimes a reasonable accommodation is not obvious. Thus, in order to determine what accommodations can be implemented, the employer and employee engage in the interactive process. The interactive process places dual obligations on the employee and the employer to determine whether and which reasonable accommodations can be made for the employee.  This good faith interaction consists of back-and-forth information sharing to ideally achieve a mutual solution. At the heart of this process is the consideration of factors such as the limitation and capabilities of the employee, the needs and constraints of the employer so as to not cause an undue hardship, and the range of possibilities to reach the mutual agreed solution. For more details on the interactive process, click here.

Employee’s Duty

Well, what is my duty as an employee? As mentioned above, you as an employee are obligated to participate following the submission of an accommodation request. Typically the employer will request more information from you and your health provider. This request for information is what’s known as a medical certification which identifies your work restrictions. It is your duty to provide this form to your health provider and ensure that your employer has received it. A common misconception about this form is the disclosure of all medical related information being disclosed to your employer. Fear not, that is not what’s being required. Employers are only entitled to what is reasonably necessary.

Furthermore, once the necessary medical documentation has been submitted, the selection of available accommodations is next. It is up to you to inform the employer of any suggested accommodation which may be ineffective. Ineffective accommodations may be deemed as a failure to engage in an interactive process. In fact, although not legally required, it is highly recommended that employers choose the accommodation the employee prefers. During implementation of the accommodation, it is important to monitor the progress. Ask yourself is this accommodation working for me? Have circumstances caused a modification in the accommodation whether it’s a new limitation or change in the workplace? Monitoring the accommodation after implementation is a forgotten step but it’s important to continue communication with your employer regarding any necessary changes or modifications.

To that end, courts have opined on the employee’s duty to engage in the interactive process. For example, in Texas Workforce Commission v. Seymore, No. 02-23-00036-CV 2024 WL 283688 (Tex. App.—Fort Worth Jan. 25,2024) the appellate court provided a descriptive framework of the dual duty of both employees and employers in the interactive process. Involving a reasonable accommodation for a disability, the employee failed to satisfy her duty by dropping the ball on her interactive process. Here, the employee halted further accommodation discussions and resigned. Seymore, 2024 WL 283688 at *6.  While the inquiry into the failed duty ends here, the framework from this case serves as a helpful guide into what the interactive process would have looked like had the employee not resigned. Id. at *6.

 From the court’s holding, we know that an employer’s offer to place the employee in another position with a $7 pay reduction is not in bad faith because it is possible the employer would have raised its offer had the employee not pulled the plug on accommodation discussions by resigning. Id. at *7.  A second takeaway from the holding is that an employer’s rejection of an employee’s preferred accommodation is also not in bad faith where the existence of several possible accommodations is present. Id.  As mentioned previously, an employee is not entitled to her preferred accommodation request if there are other available accommodations an employer could adopt that would satisfy the employee’s limitations.

In sum, the duties underlying the interactive process are shared by the employee and the employer. If you find yourself in this situation or your employer is failing to engage in the interactive process, please don’t hesitate to give our office a call to discuss your avenues of relief. https://www.texasemploymentlawyer.com/author/anjohnson/

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

As a plaintiff’s employment lawyer in Austin, TX, I often encounter clients who have been affected by mass layoffs. Understanding your rights and the requirements employers must follow can be crucial during these challenging times. Here’s a guide to help you navigate the complexities of mass layoffs under the law.

 What Constitutes a Mass Layoff?

A mass layoff refers to the termination of a significant number of employees by an employer within a short period. The criteria for what constitutes a mass layoff can vary depending on the legal framework applied, but typically, it involves:

The Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. § 2101, et seq.: This federal law passed into law in 1988 requires employers with 100 or more employees to provide 60 days’ notice in advance of plant closings or mass layoffs. A mass layoff under the WARN Act is defined as a reduction in force that:

  – Affects 50 or more employees at a single employment site; or

  – Involves at least one-third of the workforce at the site, provided at least 50 employees are affected.

Key Requirements Under the WARN Act

1. Notice Period: Employers must give affected employees 60 days’ written notice before the layoff occurs. This notice should include:

   – The expected date of the layoff and whether it will be permanent or temporary.

   – Information on any available assistance or benefits.

   – Contact information for a company representative who can provide further details.

2. Exceptions to the Notice Requirement:

   – Faltering Company: If the employer is actively seeking capital or business to avoid the layoff and believes that giving notice would jeopardize those efforts.

   – Unforeseeable Business Circumstances: If the layoff is caused by sudden, unexpected conditions outside the employer’s control (e.g., natural disasters, sudden market downturns).

   – Natural Disasters: If the layoff is a direct result of a natural disaster.

3. Penalties for Non-Compliance:

   – Employers who fail to provide the required notice may be liable for back pay and benefits for the period of the violation, up to 60 days. They may also face civil penalties of up to $500 per day.

What Should Affected Employees Do?

1. Review the Notice: Carefully review any layoff notice provided by your employer to understand the specifics, including the timeline and available resources.

2. Seek Legal Advice: If you believe your employer did not comply with the WARN Act requirements, reach out to Rob Wiley P.C. to consult with an employment lawyer to explore your options. You may be entitled to compensation for the lack of proper notice.

3. Document Everything: Keep records of all communications, notices, and other relevant documentation related to the layoff. This information can be critical if you need to pursue legal action.

4. Explore Assistance Programs: Look into state and federal assistance programs, such as unemployment benefits and retraining opportunities, to help ease the transition.

Conclusion

Mass layoffs can be devastating, but knowing your rights under the law can help you take the necessary steps to protect yourself and your family. If you find yourself facing a mass layoff in Austin or elsewhere in Texas, don’t hesitate to reach out for legal assistance. Our office is dedicated to helping employees understand their rights and obtain the justice they deserve.

For more information or to schedule a consultation, contact us today. We’re here to help you navigate this challenging time with the support and expertise you need.

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Introduction

In nursing, anti-retaliation laws can play a pivotal role in shaping professional conduct, ensuring patient safety, protecting nurses, and maintaining the integrity of the nursing profession. One critical provision is the Texas Occupations Code § 301. This chapter, called the Nursing Practice Act, enumerates legal protections for nurses when reporting violations of professional standards. This blog delves into the specifics of these protections and the important implications they may have for nurses.

Overview of Tex. Occ. Code Chapter 301, the Nursing Practice Act

Texas Occupations Code § 301.4025(b) provides:

A nurse may report to the nurse’s employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.

Notably, Texas Occupations Code § 301.4025(c) further states:

A person may not suspend or terminate the employment of, or otherwise discipline, discriminate against, or retaliate against, a person who: (1) reports in good faith under this section; or (2) advises a nurse of the nurse’s right to report under this section.

Finally, § 301.413(e) provides that if a nurse is “suspended, terminated, or otherwise disciplined, discriminated against, or retaliated against within 60 days after the date the report, refusal, or request was made or the advice was given,” the nurse has a rebuttable presumption that the employer’s action was retaliatory.  

Key Takeaways

1.     Good Faith Reports: When a nurse makes a 301.4025(b) report, so long as he believes that the report was required or authorized and there was a reasonable factual or legal basis for the belief, his report will be deemed a good faith report.

2.     Enhanced Patient Safety: This Act is crucial in fostering a culture of transparency and accountability in medical environments. Nurses should feel empowered to advocate for their patients’ safety and well-being, without fear of legal repercussions. Nurses are often the first to notice potential risks of harm as they monitor their patients’ conditions. Allowing them to speak up creates a far safer environment for those most vulnerable.

3.     Professional Accountability: This Act reminds all medical providers to adhere to the minimum standards of acceptable and prevailing professional practice. Encouraging nurses to speak up fosters accountability and trust in medical settings. Nurses should be able to report anyone without fear of retaliation, even if that person is a supervising physician or nurse practitioner.

4.     Retaliation Comes in Many Forms: Nurses can experience retaliation in myriad forms. These include suspensions, terminations, arbitrary investigations, and other forms of discipline. Nurses should be vigilant of any such adverse actions, as they may be unlawful forms of retaliation.

Challenges and Considerations

While the intent of § 301.4025(b) is clear, its implementation can be challenging. Nurses might fear retaliation or damaging workplace relationships, which could deter them from reporting. Hospitals may find pretextual reasons to punish nurses as well. Medical institutions must create supportive environments where nurses feel safe and encouraged to report concerns, no matter what. Educating nurses on their rights and the importance of this Act can mitigate some of these challenges.

Conclusion

Tex. Occ. Code § 301 plays a crucial role in upholding medical standards and protecting workers in Texas. Nurses, healthcare institutions, and administrative bodies within must work collaboratively to ensure that this provision is effectively implemented, ultimately enhancing the quality of care and safety for patients across the state.

If you think that you have been retaliated against for making a protected report in Dallas, do contact our firm for a consultation.