Colin Walsh
Austin Employment Lawyer Colin Walsh

Human Resources has called you into a meeting.  At first, you are nervous.  You wonder if someone caught you taking Carl’s lunch from the fridge or if all of those pens you accidentally put in your pocket are going to come back to haunt you.  But then you quickly realize, it is not about you.  HR is investigating a complaint of unlawful discrimination made against your supervisor.  During the interview, HR asks, “Have you ever been discriminated against by your supervisor because of your race/sex/religion/disability/age/national origin/color/sexual orientation?”  You answer truthfully, telling the investigator that you have been discriminated against based on a protected characteristic.  You’ve seen this supervisor do that to others as well.  You provide several examples of both things.  When your supervisor finds about the interview and what you said, your supervisor fires you.

Or how about this: You have noticed that you are not being treated the same as many of your coworkers, who are of a different race/sex/religion/disability/age/national origin/color/sexual orientation.  Perhaps you are not getting as much pay, getting less desirable work assignments, or not getting approval for PTO or sick leave.  Maybe your supervisor uses a nickname you told the supervisor you don’t like.  He doesn’t use belittling nicknames with other employees.  Maybe, unlike other employees, the supervisor micromanages or over-scrutinizes your work, giving you a bad performance evaluation.  One day, you go to HR or even maybe your supervisor.  You ask your supervisor, “Am I being treated differently because of my race/sex/religion/disability/age/national origin/color/sexual orientation?”  The supervisor says no, but a week later you’re fired.

Have you engaged in protected activity by merely answering questions by the company or asking if you have been unlawfully discriminated against?

YES! That is considered protected activity, but it took courts a surprisingly long time to say that.  For example, regarding whether or not reporting discrimination during a company’s internal investigation is protected activity had to be litigated all the way up to the Supreme Court.  And that didn’t happen until 2009.  Here is what the Supreme Court said about that:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty, Tenn., 555 U.S. 271, 277-78 (2009).

The second scenario, where the report of unlawful conduct takes the form of a question, was not decided by Texas state courts until 2005 in a Texas Whistleblower Act case.  In that case, the Third Court of Appeals in Austin held that a whistleblower is protected for reporting a violation of law even if it is “in the form of a query.”  Tex. Dep’t of Assistive & Rehab. Srvcs. v. Howard, 182 S.W.3d 393, 400 (Tex. App.—Austin 2005, pet. denied).  The federal appellate courts didn’t decide this issue until 2009.  In 2009, the Seventh Circuit held that asking whether something was disability discrimination constituted protected activity.  See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009).  The issue has not been directly addressed in the Fifth Circuit, which is the federal appellate court for Texas, but the reasoning of both Crawford and Casna apply.  In fact, the Fifth Circuit has even cited Casna for the proposition that informal complaints constitute protected activity.  See Amanduran v. American Airlines, 416 Fed. App’x 421, 424 (5th Cir. 2011).

One caveat must be mentioned though.  While both of the above examples would be considered protected activity, it is important to note that in both examples, the employee specifically stated which type of discrimination they experienced or asked about experiencing.  If the employee had just said that they were being treated differently or asked if they were being treated differently, it is unlikely that either one would be considered protected activity.  

So, if you think you have been discriminated against and are going to raise the issue with your employer, be specific and state explicitly what type of discrimination you believe you have experienced.  You should also consider contacting an employment lawyer who can help you navigate these issues and talk to you about whether you have a case and what options there are.

Julie St. John
Texas Employment Lawyer Julie St. John

First and foremost, climate change is real. Temperatures are more extreme and extreme weather events are more common. As a result, workers who work outside are at a greater risk of illness, injury, and even death from heat exposure than ever before. Still, the Occupational Safety and Health Administration (OSHA) has failed to adopt a national heat standard to protect workers from heat exposure. Now is the time for OSHA to act. 

OSHA has guidance available to employers on precautions that should be taken to protect workers from excessive heat.1 However, it is only guidance, not law. Such guidance does not set specific requirements for what employers must do to keep outside workers safe from the heat. It only provides recommendations, which employers may obviously choose to ignore. OSHA should do more to protect outside workers. It should enact specific regulations that it can enforce to keep workers safe. 

As OSHA has yet to adopt a national heat standard or pass specific heat-related regulations for the workplace, workers must rely on the “General Duty Clause” of the OSH Act to fight for protections against unsafe working conditions based on excessive heat. The “General Duty Clause” requires employers to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). Clearly, excessive heat should qualify as such a recognized hazard from which workers are entitled to protection.  

Importantly, workers who complain about an unsafe work environment due to heat should also be entitled to protection from retaliation for making complaints about heat-related safety issues. For example, if an outside worker were to complain about not being able to take breaks or an employer’s failure to provide drinking water, that worker should be protected from retaliation for complaining about an unsafe work environment. But protection for making such complaints would be more secure if the employer was subject to specific regulations as opposed to only the “General Duty Clause.” 

In addition to enacting a national heat standard and passing regulations that would set specific, enforceable requirements for what employers must do to protect outdoor workers from heat, taking action to help curb climate change is a second necessary component to the equation. Last month, the Union of Concerned Scientists published a report titled “Too Hot to Work” which analyzed and discussed how climate change is affecting outdoor workers, who are disproportionately Black and Latino workers.2  

“Our analysis finds that by midcentury, given slow or no action to reduce global heat-trapping emissions, the increased intensity, frequency, and geographic extent of extreme heat would cause a three- to fourfold increase in the exposure of outdoor workers to days with a heat index—or ‘feels like’ temperature—above 100°F, the point at which the CDC recommends that work hours begin to be reduced.”

It is entirely unacceptable to do nothing in the face of such findings. Moreover, according to a joint investigation by Columbia Journalism Investigations, National Public Radio, and The Texas Newsroom, from 2010 to 2021, 53 workers died in Texas alone because of working in excessive heat.3 Clearly, OSHA guidance is not enough to keep outdoor workers safe – specific regulations are necessary. 

If your employer is making you work in excessive heat without proper protections, you should consult with an employment attorney right away. Also, if your employer has retaliated against you for complaining about an unsafe work environment, you should not delay in seeking legal advice. The deadline to file a workplace safety retaliation complaint is very short, most often only 30 days from when the retaliation took place. 

 1) https://www.osha.gov/heat/heat-index

 2) https://ucsusa.org/sites/default/files/2021-08/Too%20Hot%20to%20Work_8-13.pdf

 3) https://www.houstonpublicmedia.org/articles/news/in-depth/2021/09/07/407895/texas-workers-are-dying-in-the-summer-heat-and-companies-arent-being-held-accountable/

Julie St. John
Texas Employment Lawyer Julie St. John

Your employer has just fired you for an illegal reason. What do you do next? Your next step is probably contacting an employment lawyer. Indeed, it probably should be. Then let’s say you hire an employment lawyer who tells you you have a really strong case against your previous employer. What next? Is it time to sit back and wait for your big payday? No! It’s not. 

Why not? Because employees who have been fired for an illegal reason have a duty to mitigate their damages. 

There are different types of damages (i.e. losses), but one of the big ones in employment law cases is backpay. Simply put, backpay is the money the employee would have earned if the employer would not have fired the employee for an illegal reason. Put another way, it is the wages and benefits an employee loses out on by no longer having a job—a job they would still have if the employer did not fire them for an illegal reason.

To attempt to mitigate (i.e. lessen, reduce, minimize) those damages, an employee must diligently search for a new job. Obviously, getting a new job would decrease, or even possibly eliminate entirely, the lost wages and benefits. This might make some folks inclined to not look for a new job to try to keep their losses, and accordingly their potential settlement value or judgment, high. But it does not work that way.  

If an employee who has been fired for an illegal reason has not made a diligent effort to find a new job, the law provides the employer with a failure to mitigate defense. Now this is something the employer has the burden to prove; it is what is called an affirmative defense. But, if the employer can prove there were substantially equivalent jobs out there and the employee failed to use reasonable diligence to get one of those jobs, then a court can reduce a damages award. The court can take away money from a judgment based on the amount the employee could have potentially earned if he or she had gotten one of the substantially equivalent jobs. 

Now, this does not mean the wrongfully terminated employee needs to apply for just any job or accept whatever comes along. The work has to be “substantially equivalent.” This means the job has to be very similar in terms of job responsibilities, working conditions, status, pay, benefits, and promotion opportunities. In other words, the employee does not have to accept a demotion. Nevertheless, the employee MUST look for jobs that would meet the necessary requirements. And, the employee must keep looking. If the employee stops looking after a certain amount of time, the court may reduce damages to only the amount of time the employee was actually diligently searching. See West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 1990). 

If you have been fired for an illegal reason, it is extremely important for you to keep detailed records of your diligent efforts to find another job. Those records should include all the positions you applied for (including the name, address, and phone number of the potential new employers), cover letters you send out, different versions of your resume, anyone you talk to about potential job opportunities like recruiters, career consultants, or job search agencies, networking events or job fairs you attend, any response you receive from potential new employers, whether you were interviewed for any position to which you apply (including details of the interview like when it occurred and who you met with), and any offers you receive (including details of the position, pay, benefits, hours, and start date). Additionally, if you are offered a job that you turn down, you should keep an explanation of why you turned it down. You need to have a really good reason for turning it down, and you should talk to your employment lawyer before you turn it down. 

Overall, if you have been fired for an illegal reason, you should start your search for a new job and consult with an employment attorney right away. You need to make absolutely sure you are doing everything you need to do to find a new job so your previous employer cannot use your lack of effort against you.  

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Her story: “I work at a small convenient store outside of town.  I don’t know what to do.  I can’t quit my job; it took me forever to find a job that works with my schedule.  I am a single mother, and I have to take care of my child and I’m trying to finish school.  I need this job, but ever since I started working, the owner has been making inappropriate sexual comments and gestures.  It makes me uncomfortable and I’ve asked him to stop, but he won’t.  Every day it seems to be getting worse.  How do I stop him from doing this to me? I can’t take this.  It isn’t fair.  I just want to go to work and do my job and go home.”

The protections afforded under most of the anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act only apply if the employer in question has the requisite number of employees. For example, for employees to have protections under Title VII or the ADA, an employer must employ 15 people.  For claims under the ADEA, there must be 20 employees.  For an employee to be able to pursue claims under the FMLA, an employer must have 50 employees within a 75-mile radius of the location where the employee worked.  The same is true for the counterparts of these laws found in the Texas Labor Code. Thus, whenever an attorney hears “small convenient store” or any other indication of a small employer, the typical follow up inquiry is figuring out how many employees are employed by the employer. 

The requirement that these minimum thresholds be met before an employer can be held liable for illegal conduct leaves many employees powerless.  For the most part, Texas specific laws are still modeled after federal laws. However, when it comes to sexual harassment in the workplace, which falls under Title VII protections as they relate to sex, the Texas Labor Code no longer looks like federal law.

Until recently, the woman making the above complaint may have been left with no options for seeking legal recourse for the sexual harassment she experiences.  Thankfully, this will no longer be the case in Texas. Texas has now taken a bold step to protect employees from sexual harassment.  

Employers in Texas will no longer be able to hide behind the defense of, “I only have 10 employees” for claims involving sexual harassment.

When it comes to sexual harassment in Texas, on September 1, 2021, under the Texas Labor Code, all employees will be protected from sexual harassment.  For the purposes of sexual harassment claims, “employer” will now be defined as “a person who employs one or more employees.”  But wait, that’s not the only change in the law as it relates to the definition of employer.  Supervisor, managers, and human resources personnel beware.  When reports of sexual harassment are made, the named Defendant may include you.  The definition of “employer” also includes “a person who acts directly in the interests of an employer in relation to an employee.” Indeed, after September 1, 2021, supervisors, managers, human resources personnel, and other third parties acting directly in the interest of the employer may find themselves being held personally liable for damages.

Aside from expanding the definition of employer, the timeline for filing complaints of sexual harassment under Texas law will be expanded from 180 days to 300 days, which will put it in line with similar types of claims pursued under federal law.  

Lastly, Texas law seems to be changing what is required of employers in the way of responding to complaints of sexual harassment.  In the past, employers have been required to take “prompt remedial action.”  The new law will require employer’s take “immediate and appropriate corrective action.” Courts will still need to interpret this standard. Yet, the departure from the old requirement, indicates that Texas lawmakers are intending to take a stronger stand against sexual harassment and are requiring employers to take real action in response to these very serious complaints.

These changes stand for a much-welcomed change that is needed in the legal landscape of Texas.  Often times, these legal loopholes leave many of the most vulnerable employees without any protections. If you are experiencing sexual harassment at work and would like to know your rights, don’t hesitate to contact an experienced employment lawyer.  Contact our office, we are available to discuss your circumstances and a plan of action.    

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

We have been in the midst of one of the most ambitious vaccine distributions the world has ever experienced, and it has finally brought us within sight of the end of the Covid-19 pandemic. And yet, despite the end being within reach, it seems to constantly allude our grasp. Infection rates are skyrocketing, mask mandates are once again being considered, and normalcy is being tossed to the wind.  The problem is that reaching the end depends almost entirely on the amount of people willing to get the vaccine. As such, several private companies have presented employees with an ultimatum: either employees get the vaccine or face termination.  Microsoft, United Airlines, and Google are just a few of the many companies who have boarded this growing trend. 

At first glance, it seems inherently wrong for our employers to dictate what we can and cannot do with our bodies. But this raises an important question: where do the rights to our bodies end and our duty to the common good begin? Surprisingly, this would not be the first time the United States has grappled with this question and experienced the conflict between the rights to our own bodies and our duty to others. This article will examine this struggle and the history underlying vaccination mandates.

Our tale begins with one man: a pastor by the name of Henning Jacobson. Jacobson was a prominent figure in Cambridge, Massachusetts during the early twentieth century. He was an outspoken community organizer and founded the Swedish Lutheran Church.  During Jacobson’s time, the United States was experiencing a smallpox epidemic. Smallpox is a particularly nasty disease that causes severe fever and oozing sores to cover one’s face and body. This disease would go on to kill over 300 million people.  In order to combat this epidemic, the city of Cambridge made smallpox vaccinations mandatory. Officials would go door-to-door demanding that citizens be vaccinated lest they be levied a fine. The city official tasked with enforcing this order eventually arrived at the door of Henning Jacobson. Jacobson, however, refused. 

Jacobson refused because he thought it was his right to refuse. Why should the government decide what he does with his own body? Eventually, Jacobson did what any other person striving for change inevitably must do: he filed a lawsuit. Jacobson v. Massachusetts was the first case where the Supreme Court addressed the issue of sovereignty over one’s body within a medical context. The question was whether Jacobson could be fined by the state for refusing the vaccination. 

In a 7-2 decision, under an opinion authored by Justice John Marshall Harlan, the Court ruled that Jacobson must pay the fine. The Court reasoned that the vaccine mandate was a legitimate exercise of the state’s police power. The rationale was that if a state may raise a militia of civilians to prevent a military invasion and therefore compel citizens to take up arms, then it may demand individuals to receive a vaccine to combat a deadly disease. To the Court, this was simply a different form of invasion. Personal liberty ended up taking a backseat to public safety. 

Jacobson v. Massachusetts was a delphic case that paved the way for governments to require vaccinations in schools. It also demonstrated the importance of sacrificing one’s personal liberty for the common good. The result of this sacrifice was that smallpox became the first human disease to be completely eradicated due to a vaccine. This was due, in no small part, to the populace’s willingness to receive the vaccine. And if it could be done once, it can certainly be done again.

There is a certain, understandable fear to receiving the Covid-19 vaccine. Like Jacobson, some individuals feel that it is an infringement of their personal liberty to be ordered to inject something into their body and fear what the vaccine may do to them as well. These individuals do not want to be forced to put a part of the virus into their bodies. Thus, like Jacobson, they refuse to accept the vaccine out of fear for their autonomy and wellbeing. It is worth noting, however, that to truly conquer one’s fears, one should not run away from them. The solution is often to go to the root of the fear itself and face up to it. Sometimes, all it takes to overcome the poison is a small sip.

Colin Walsh
Texas Employer Lawyer Colin Walsh

On December 18, 2020, I published a blog all about 42 U.S.C. § 1981 (“§ 1981” or “Section 1981”) claims.  I’m sure you remember it.  It was pretty great, if I do say so myself.  

But just in case, very briefly, § 1981 prohibits race discrimination and retaliation in contracting, which includes employment contracts.  Further Section 1981 applies to at-will employment.  That is significant because it means that if employers or companies are not subject to Title VII of the Civil Rights Act of 1964 because they are either too small or do not have employees, an aggrieved person can bring a claim under § 1981.  Section 1981 claims can even be brought against local governmental entities through another statue located at 42 U.S.C. § 1983.

All of the above was discussed in my December 2020 blog.  So why the follow up?  Well, the second half of my blog is no longer accurate in the Fifth Circuit.  You see, in the second half of my blog, I stated that third-party interference in contracts based on race was also prohibited by § 1981 even in the Fifth Circuit.  The rest of the blog then detailed though citation to Supreme Court and Fifth Circuit precedent the basis for my belief.  The analysis was based on a brief I had filed that was currently pending at the Fifth Circuit.

Well, as the saying goes, “time makes fools of us all.”  Since that blog, the Fifth Circuit has ruled.  And . . . I was wrong.  Currently, in the Fifth Circuit, § 1981 only covers third-party interference in very limited circumstances.  Specifically, the Fifth Circuit put it this way:

Since we decided Faraca, however, we have clarified the reason for the Director’s liability. The Director “was only nominally a third party,” we have explained. Id. Because the Director was acting on behalf of the State of Georgia when he instructed a subordinate not to hire Dr. Faraca, the Director and the State “were essentially one and the same.” Accordingly, we do not read Faraca to recognize, as Dr. Perry contends, a true third-party-interference theory of § 1981 liability. Rather, we read Faraca to allow § 1981 liability where the “third party” and the contracting party are “essentially one and the same.” No evidence suggests that VHS and PICCS are “essentially one and the same.” follows that Dr. Perry cannot recover against VHS under § 1981 on the theory initially articulated in Faraca and clarified in Bellows. 

Perry v. VHS San Antonio Partners, LLC, dba North Central Baptist Hospital, 990 F.3d 918, 932-33 (5th Cir. 2021).  In other words, essentially, a third-party interference claim can only be brought under § 1981 if the third-party is an employee, agent, or officer of the party with a contractual relationship.

So how am I going to get out of this with my credibility intact and on a positive, hopeful note for a broad view of § 1981 even in the Fifth Circuit?  Well, how about this!

The Fifth Circuit’s reading conflicts with established law in eight other courts of appeals.  In fact, the Fifth Circuit is the only court of appeals to read § 1981 so narrowly.  The eight other courts of appeals that have addressed this issue have all found that § 1981 prohibits third-party interference in contracts based on race.  Another way to put it would be that if Dr. Perry in the case quoted above had filed his lawsuit in the First, Second, Fourth, Sixth, Seventh, Ninth, Tenth, or Eleventh Circuits, he would have had a cause of action.

Because of this clear circuit conflict, Professor Eric Schnapper from the University of Washington School of Law, and I have just filed a petition for certiorari with the United States Supreme Court asking them to resolve this conflict.  The Case is Melvin G. Perry v. VHS San Antonio Partners, LLC, dba North Central Baptist Hospital, No. 21-172.

Stay tuned because maybe my December 2020 blog will actually turn out to be correct . . . even in the Fifth Circuit! 

“The man who represents himself has a fool for a client.”

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Abraham Lincoln, often credited for authoring the epigraph for this paper, was a lawyer before he ever became the sixteenth President of the United States. The late President’s pithy statement is directed at those who choose to represent themselves in a court of law, and his message to such individuals is quite simple: do not do that. But why not? After all, hiring a lawyer is often expensive and time consuming. Moreover, it seems highly implausible that a complete stranger could tell your own, personal story better than you could. The reality of the situation, however, is that going to court is often an overwhelming experience. Not only must you navigate your way through the bureaucratic labyrinth that is the American legal system, but you must also abide by the various, minute rules and regulations that each courthouse has. That is why the first step an individual should take when they are setting out to go to court is to find a lawyer. However, this matter proves to be much more easier said than done. How do you go about finding the “right” lawyer? This article will venture to answer this question.

If there is one thing the United States is not lacking, it is lawyers. An Internet search of law offices in your area will most likely produce hundreds of results that range from large law firms to solo practitioners. This, I believe, is quite often why seeking a lawyer can be such a daunting task for some. The first step you should take in narrowing your search is to identify the type of lawyer you need. There is a type of lawyer for just about every aspect of life. Are you experiencing mistreatment and / or discrimination in the workplace? Then seek an employment lawyer. Are you worried about potentially going to prison for something questionable you (allegedly) did? Then seek a criminal lawyer. Are you frightened that your treacherous ex-business partner is going to copy the inventions / designs that you painstakingly came up with? Seek an intellectual property lawyer. It is important for you to take a step back, identify your issue, and then find a type of lawyer that deals in such issues.

The next step in narrowing your search is location. Let us suppose that you identify your issue and then come across a lawyer with extensive experience (and an impressive record) in handling matters similar to yours. You then notice that this paragon of law resides in New York, while you live in Texas. Should you hire her? This answer varies, but more often leans towards the negative. Ideally, assuming you live in Texas, you would want a lawyer who practices in Texas. There are various reasons underlying this: a Texas lawyer is licensed to practice in Texas; she may know the judge assigned to your case and how they operate; and, perhaps most importantly, she knows Texas law. The New York lawyer, more than likely, does not know Texas law. This means that you will have to pay for all of the research this New York lawyer engages in learning Texas law. In other words, hiring a Texas lawyer would save you a significant amount in expenses.

Once you’ve narrowed your search to type and location, the last step is to identify a firm and set up a consult. Consults vary in price from firm to firm, but they allow you to get a sense of the attorney. This is important because you will be working with this individual for months or, potentially, years. Consults allow you to gauge your potential relationship with this attorney and determine whether this is the person that you want telling your story.

Finding the right attorney ultimately comes down to identifying a lawyer who handles the type of issue you are dealing with, who is located within your state, and who you feel you could have a working relationship with. This, I believe, is the key to finding the right attorney. The process may be time consuming and, at times, daunting, but well worth it given the intricacies of the modern courthouse. And to those wishing to go against the grain and brave the courthouse steps on their own, I have but one message for you: Best of luck.

Kalandra Wheeler
Kalandra Wheeler

For some workers, the application for unemployment compensation filed with the Texas Workforce Commission is an easy and seamless process.  They submit their application, they are granted benefits, and all is well.  Unfortunately, that is not the case for all employees seeking unemployment benefits. Many employees will find themselves being denied benefits and fighting with their former employers trying to convince TWC that they should be awarded benefits. 

After the application for unemployment benefits is filed and the initial determination by TWC is made, if the employee is denied unemployment benefits, they have the right to appeal that decision.  Similarly, employers have the right to appeal TWC decisions that grant employees their benefits.  

When either party appeals the initial benefits determination, the TWC appeals process begins with a hearing before the Appeal Tribunal. Under the Texas Unemployment Compensation Act, the Appeal Tribunal is the name given to Hearing Officers that conduct unemployment hearings.  

Before the hearing is the point where it is best for an employee to decide whether they want to hire a lawyer.  This is not to say that an attorney is unable to help in later stages of the appeals process – a request for reconsideration or a request to reopen a hearing for consideration of new evidence – but with each additional appeal step it becomes much more difficult for an employee to get benefits they have been wrongfully denied.

During an appeal hearing, testimony and evidence will be presented.  The Hearing Officer will swear in witnesses and take testimony, review documents submitted as evidence, and make decisions on the information provided at that hearing.   If there is later a motion for reconsideration, the matter goes to the Commission who will review the very same testimony and evidence. This is one reason why it is extremely important to make sure your testimony and evidence is presented at the actual hearing.

Employees seeking benefits will read on the Texas Workforce Commission’s website: “The appeal process is structured so that you do not need an attorney. You may choose to have an attorney or other person represent you at your own expense.”  

Warning:  take precautions when heeding the advice found on the TWC website.

As attorneys, we hear many stories about what people have experienced during their TWC hearings.  There is no way to know whether the presence of a lawyer would have resulted in a different outcome.  However, it is common for employees to say the following after their hearing: “I was nervous,” “I didn’t know what to say,”  “they never asked me about that,” “my employer had an attorney,” or “I submitted my documents before the hearing, but they never looked at them.”    

What is said or presented as evidence at the hearing cannot be undone.  Likewise, if something is forgotten it may be difficult or impossible to later have TWC consider what could have been very important evidence. 

An attorney may be able to give advice and guidance that helps the employee be prepared by knowing what to expect, which helps them remain calm.  An attorney may know what additional questions need to be asked when witnesses are providing testimony.  An attorney may be able to guide in having evidence properly admitted for consideration.  

Each employee must decide if retaining a lawyer to assist them at their hearing will be useful or make them feel more at ease.  It is better to ask, “do I need a lawyer” rather than “did I need a lawyer?”

The best opportunity for an employee to obtain benefits is during the hearing conducted by the Appeal Tribunal.  If you would like to discuss your upcoming TWC appeal hearing with one of our attorneys, please contact our office.  We are available and ready to help employees.  

 

 

  

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

As the Texas Workforce Commission (TWC) begins moving through the backlog of unemployment appeals and through the sheer glut of unemployment claims, many claimants that were originally awarded unemployment claims are finding themselves being asked to repay that money. Often times through no fault of their own. Often times based on erroneous reasonings that are contrary to the TWC’s own established precedent. To make matters worse, since it is extremely difficult to contact a representative of the TWC over the phone, gaining an insight into the reasoning of its decision or even how to engage the appeal process is arduous task. My aim is to hopefully shed some light into the basic structure on what appeals are available in the unemployment appeal process. 

In short there are approximately three different levels of review within the TWC itself in which a decision to either grant or deny someone unemployment benefits occurs. The first stage is the initial application stage in which the decision to either grant or deny benefits is undertaken by an investigator. The investigator’s job is to call the claimant and the employer to collect evidence in making their decision. This is by far the most well known stage since it is initiated with each and every application for benefits. Once the investigator has rendered their decision, a party that wishes to overturn the decision must file an appeal within 14 days of when the decision was mailed. It is imperative to note that the clock starts ticking not when the actual notice of benefits is received, but it begins when it is sent by the TWC office. This often means that claimants that were denied benefits will have less than 14 days to make the appeal.

The second level of review is initiated with an appeal of the investigator’s decision. This level of review is comprised of a hearing that is adjudicated by a hearing officers that is, for a lack of better terms, the judge, jury, and executioner in the matter. An appeal packet will be sent to both the claimant and the employer that will have a hearing date and time, all the documents associated with the case submitted to the TWC up to that point, and some general information about the process. Here, one is allowed to submit documents, retain witnesses, and retain an attorney. It is important to be as through as possible in preparation for the hearing since generally only documents that were submitted before the hearing will be considered. At the time of the hearing, both parties will be put under oath, and the hearing officer will take the testimony of all the witnesses. Importantly, if you retain an attorney they will also have an opportunity to ask  the witnesses questions. After the hearing, the hearing officer will issue their formal written decision. Here, much like in the previous stage, a party may appeal this decision within 14 days after the decision is mailed, not received. 

The third and last internal appeal is to the TWC’s Commissioners. It is a written appeal in which one must point out how the hearing officer’s decision does not comply with the applicable TWC precedent. It is also at this stage that the importance of submitting all relevant documents before the hearing truly shows. This is because, absent good cause, the only facts that one may rely on at this stage are documents and evidence that were presented during the hearing. 

After the Commissioners have rendered their judgment there is one more step, but it involves appealing the decision to the courts. As such, that is a topic for discussion for another article. 

As can be seen above, the TWC appeal process can often times require a quick turnaround, specialized knowledge, and an experienced advocate. That is why it is imperative to seek out an attorney that has the knowledge to be a zealous advocate. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that this type of cases demand. 

After more than a year since the Covid-19 pandemic struck, many of us are finding that as we return to work, things are slightly off from what they once were. Several employers are requiring facemasks, social distancing, and heightened sanitation, to name just a few. And all for good cause as well. Employers want their employees returning to work, but presumably want to prevent the spread of the virus as well. In light of this, several employers are now requiring that their employees receive the vaccination. Employers are approaching vaccination requirements by several means, the most common being the consequential approach (i.e., unvaccinated employees will suffer unpaid leave, suspension, termination, etc.) and the incentivization approach (i.e., vaccinated employees do not need to wear masks or social distance). These new requirements all raise an important question: can your employer require you to get a vaccine? The short answer: Yes, they certainly may.

At first glance, this issue can be quite unsettling. How can it be just for employers to dictate your medical decisions? However, employers have a significant amount of discretion in setting up the workplace environment. This is largely due to the fact that Texas is an at-will state. In other words, under Texas law, your employer has plenty of leeway in making workplace policy. For example, should your employer decide that, starting next week, everyone in the office is required to wear pink dress-shirts with electric blue ties, then you better show up on Monday wearing a pink dress shirt and an electric blue tie. Otherwise, your employer will have grounds to terminate you. As absurd as this sounds, this pink-shirt policy is completely valid under Texas law. Similarly, employers have discretion to require that employees receive vaccinations, particularly the Covid-19 vaccine. 

We should, however, dispel a popular rumor underlying vaccination requirements. This rumor being that employers cannot require the vaccine because it is not “FDA approved.” Legally, this simply does not matter. The FDA authorized the use of these vaccines, therefore employers are allowed to require it. The fact that the vaccine has not been FDA approved is irrelevant (to those skeptical of this claim, it should be noted that Pfizer did apply for full FDA approval roughly a month ago).

Furthermore, the Equal Employment Opportunity Commission (“EEOC”) released guidance this previous week asserting that companies can require employees to be vaccinated. The EEOC further posited that companies may offer incentives to workers as long as they are not coercive. The EEOC, however, did not elaborate on what would constitute a “coercive” incentive. The only caveat to the EEOC’s guidance is that the employer may require the vaccination so long as they are in accordance with the reasonable accommodations provision of the Americans with Disabilities Act. In other words, your employer cannot make you receive a vaccination if it would in some way be detrimental to your health. For example, suppose you suffer from a serious auto-immune disease and your doctor recommends, for the sake of your health, that you do not get the vaccine. In this instance, you should notify your employer of your ailment, provide them with the necessary paperwork, and request that they accommodate your disability so that you do not need to obtain the vaccine and jeopardize your health. Again, the burden is on you to show your employer that the vaccine is detrimental to your health.

This news should not come as a surprise as this would not be the first time vaccinations are mandated. In fact, several establishments typically require vaccinations. For example, public and private universities in Texas typically require students to show records that they have received their meningitis shots prior to registering for classes. As counter-intuitive as it may seem to some, refusing a vaccination, outside of valid medical grounds, is not protected activity. In other words, you will not be protected by the law should you refuse.

For those concerned about the possibility that their employer may require them to get the vaccine, there is not too much cause to worry. It has been found that a significant majority of companies in the United States are not even considering requiring the vaccine. Chances are, you most likely will not be required by your employer to receive the vaccine. For health purposes, however, you may want to consider the option nonetheless. We are living in the new normal, and these circumstances demand that we contain the spread of the virus. So what happens when your employer requires you to receive the vaccine? You either bite the bullet and get it or risk a fight that is all but lost.