Remember, You Hired a Lawyer for a Reason

Kalandra Wheeler
Kalandra Wheeler is a Board Certified Austin employment lawyer.

Hiring an attorney and then ignoring their legal advice is a bit like calling a mechanic, asking what’s wrong with your car, and then driving off a cliff because you had a better idea. Spoiler alert: it doesn’t end well.

It’s not just unwise, but potentially very costly to pay for legal expertise and then refuse to use it.

1. You’re Paying for Expertise — So Use It

Attorneys don’t just wake up one day knowing the law — they spend years in school, pass grueling exams, and then survive the daily chaos of legal practice to build the kind of experience you can’t Google. The law is a moving target, and good lawyers stay sharp so you don’t have to. So when you hire one, you’re getting way more than someone who can quote statutes — you’re getting a strategist who’s been around the block. Ignoring their advice? That’s like hiring a personal chef and then asking for the drive-thru menu. You’re not just wasting money — you’re missing the whole point of having an expert on your side.

2. Legal Strategy Is a Game of Chess, Not Checkers

Skilled attorneys don’t just focus on the immediate details of your case — they step back and see the entire board. They assess the risks, anticipate the other side’s strategy, and craft a plan that positions you for the best possible outcome. When you ignore that advice because you think you know how it’ll play out, you’re essentially playing checkers on a chessboard. And in the legal world, the stakes are far higher — and the consequences are very real.

3. The Players Can Tell When You’ve Gone Rogue

Refusing to follow legal advice often results in erratic or misguided behavior — making impulsive decisions, saying the wrong things, or acting in ways that undermine your position. And trust this: the other side will notice. When it becomes clear you’ve gone rogue and stopped listening to your attorney, opposing counsel will seize the opportunity you’ve handed them. You’re not just weakening your case — you’re giving your opponent a strategic edge.

4. You Can Undermine Your Own Case

Attorneys build carefully crafted arguments grounded in facts, the law, and your cooperation. When you ignore their advice, it’s like yanking bricks out of the foundation of your own case — and watching it collapse in real time. If your lawyer is forced to stand by while you self-destruct, it’s not just frustrating — it’s damaging, and frankly, embarrassing. Going against your attorney’s guidance can seriously derail your case, and once that damage is done, even the best lawyer may not be able to fix it.

5. You Could Burn Bridges

Attorneys are bound by professional ethics and a duty to work collaboratively with their clients. If that cooperation breaks down, they may have no choice but to withdraw from representing you. Ignoring their advice or treating them like a hired mouthpiece, rather than a trusted strategic partner, is a surefire way to push them toward the exit. And yes, they can fire you as a client. If an attorney withdraws because you’ve been uncooperative, future lawyers may hesitate to take on your case, wary of dealing with someone who isn’t willing to work with them.

6. The Law Is Not a Choose-Your-Own-Adventure Story

Sure, you can ignore your lawyer and do things your own way — plenty of people do. But the consequences can be severe: in civil cases, you might find yourself facing a hefty financial judgment; in criminal cases, you could end up behind bars. The legal system doesn’t care about bravado or gut feelings. It’s driven by preparation, strategy, and expertise — exactly what your lawyer is offering. Ignoring legal advice from an experienced professional is like trying to win a game without knowing the rules.

You Hired a Professional for a Reason

Hiring an attorney and then refusing to take their advice is more than just a waste of money — it’s a direct threat to the outcome you’re hoping for. People hire attorneys because the legal system is complicated, intimidating, and full of rules that don’t come with a user manual. Whether you’re facing a criminal charge, an employment dispute, a divorce, or even just drafting a contract, the stakes are high — and one misstep can have lasting consequences. No attorney can guarantee a specific result, but what they can offer is a strategic path based on their knowledge, training, and, most importantly, real-world experience. They went to law school and built careers navigating legal minefields so you wouldn’t have to. If you’d rather go it alone, that’s your choice — but don’t expect a seasoned attorney to stand by quietly and rubber-stamp decisions that could sink your case.

If you need an experienced employment lawyer to provide sound advice and advocate for your rights, our attorneys are here to help and available for consultation. We don’t just tell you what you want to hear — we provide the honest, straightforward guidance you need to protect your interests and make informed decisions for you and your family, based on the facts and the law.

Areyana Gilbert
Austin/Houston Employment Trial Lawyer Areyana Gilbert

Early on in representation, it is important to lay out the principles of the attorney-client relationship. One of the most important principles in representation is transparency.

That’s right—be transparent with your attorney. After all, you’ve hired him or her to handle your employment law matter and it is imperative that your attorney be keep abreast of material update sin your case. This blog takes a further into what suffices as material updates in your case.

            It is essential for clients involved in employment law matters to keep their attorneys informed of any updates or developments in their case, as this communication directly impacts the effectiveness and outcome of legal representation. Employment law cases, whether dealing with wrongful termination, workplace discrimination, harassment, wage disputes, or other issues, can be highly complex, with many moving parts that require close attention to detail. When clients fail to inform their attorneys of new information or changes in their circumstances, it can hinder the lawyer’s ability to craft the most effective legal strategy. For example, if a client receives a new offer of settlement, discovers crucial evidence, or experiences retaliatory actions after filing a claim, failing to notify their attorney promptly could lead to missed opportunities or the weakening of their legal position. 

The timing and details of these updates are often critical in ensuring that the case is handled correctly and that the client’s rights are fully protected. Furthermore, in some cases, an employer’s conduct may change, which could influence the trajectory of a claim. Employment law attorneys rely on accurate, timely updates from their clients to best advocate on their behalf, as this information allows them to adjust strategies, make necessary legal filings, and ensure that the client’s case remains as strong as possible. One key factor that clients should understand in the context of their employment law case is the concept of “elf resignation,” a term that refers to situations in which an employee feels compelled to resign due to intolerable working conditions, often a form of constructive dismissal. In these cases, it’s important for employees to inform their attorney if they are considering resignation or have already resigned, as the manner in which they leave their employment can significantly impact their ability to recover damages. For instance, if an employee resigns without documenting the reasons behind their decision, or without exhausting available internal remedies, they may limit their ability to seek compensation for damages related to wrongful termination or workplace harassment. 

On the other hand, if the resignation is clearly tied to unlawful actions by the employer, such as creating a hostile work environment, the employee may still be entitled to pursue legal action for damages, including back pay, lost benefits, or emotional distress. However, resigning without sufficient evidence or without consulting legal counsel beforehand may reduce the likelihood of a successful claim. It is also critical for clients to maintain confidentiality regarding the details of their case. Employment law matters are often sensitive, and leaking information about the case to individuals who are not involved in the legal process can undermine the client’s chances of achieving a favorable resolution. Discussing the case with friends, colleagues, or social media contacts can lead to unintended consequences, such as the spread of rumors, the potential for witnesses to be influenced, or even jeopardizing the legal process. Clients should limit sharing case details to those on a “need-to-know” basis, such as their attorney, other legal professionals involved in the case, tax professionals (who may need to understand the financial implications of a settlement or judgment), and immediate family members who provide personal support. This confidentiality is critical in maintaining the integrity of the case, as it prevents third parties from intervening or interfering with the legal proceedings. In some cases, disclosing information to unauthorized individuals can even harm the client’s case, as opposing counsel may use this information against them.

 By adhering to confidentiality, clients ensure that their attorneys can work without external distractions or concerns and that the legal process remains intact. Keeping an open, transparent line of communication with the attorney while adhering to confidentiality protocols is a fundamental part of building a successful employment law claim. Clients should understand that their attorneys are working in their best interests and that every piece of information—whether it’s a change in employment status, a resignation, or a new development—plays a critical role in securing the best possible outcome. 

In sum, when in doubt, err on the side of caution and notify your attorney promptly of any material changes in your case. If you have a potential employment law dispute, please schedule a consultation with us at Wiley Wheeler, P.C.

#Confidentiality #Clients #AttorneyClient

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

One key legal claim in Texas is called a “Sabine Pilot” claim. This doctrine protects employees from retaliatory terminations for refusing to engage in illegal activities. Let’s take a closer look at the rights employees have under Sabine Pilot.

What is a Sabine Pilot Claim?

The Sabine Pilot claim comes from the Texas Supreme Court case Sabine Pilot Service, Inc. v. Hauck, 687 S.W. 2d 733 (Tex. 1985). In this landmark case, the court ruled that an employee cannot be terminated for refusing to commit an illegal act at the request of their employer. 

This case established a narrow, but important, exception to the at-will employment doctrine, which otherwise generally allows employers to fire employees for any reason or no reason, so long as the termination does not violate other state and federal protections.

Key Elements of Sabine Pilot Claims

To bring a valid Sabine Pilot claim, there are specific elements that must be present.

  1. Refusal to Engage in Illegal Conduct: The employee must have both been asked to participate in illegal activity and refused to do so. 
  2. Termination: The employee must have been fired solely because of their refusal to engage in the illegal act. 
  3. Causal Connection: The employee must show that the employer’s decision to terminate was specifically tied to their objection to the unlawful conduct.

An Example 

Maria is a mid-level manager working at a logistics company that operates nationwide, including in areas with strict environmental regulations. One day, her boss, Mark, instructs her to oversee the illegal dumping of hazardous waste from the company’s warehouse into a nearby river to avoid the high costs of proper disposal. 

Mark tells Maria that the company has been doing this for months and that it’s the only way to maintain their profit margins. He further boasts that this is how he obtained his promotion to VP and insinuates that complying will help Maria’s future at the company. He assures her that nobody will find out and pressures her to go along with the plan.

Maria knows that dumping hazardous waste in this manner violates both state and federal environmental laws and that anyone involved could face criminal penalties, including heavy fines and imprisonment. 

Maria refuses to follow Mark’s orders, explaining that she cannot be part of a crime that jeopardizes public health and the environment. She tells Mark that she would rather lose her job than face criminal charges or potentially cause harm to others. Mark becomes furious, telling Maria that she is overreacting and that the company can’t afford employees who “refuse to get things done.” He fires her on the spot.

After her termination, Maria files what is likely to be a successful Sabine Pilot claim.

Remedies for Employees

If an employee successfully proves a Sabine Pilot claim, they may be entitled to various remedies, including: 

  • Back Pay
  • Front Pay
  • Compensatory Damages
  • Punitive Damages

Where Should You Start?

The Sabine Pilot rule provides vital protections for Texas employees. While the scope of this doctrine is limited, it remains an essential legal safeguard for those facing unlawful demands in the workplace. 

If you’ve been terminated for refusing to commit an illegal act, it is essential to seek the guidance of a Texas employment law attorney. A lawyer can help you evaluate whether your situation qualifies as a Sabine Pilot claim, gather the necessary evidence, and guide you through the legal process. 

Don’t hesitate to reach out to one of our attorneys to discuss your case in further detail. 

Madeline Garza
Austin/Houston Employment Trial Lawyer Madeline Garza

One of the cornerstones of administrative law in the United States is the Administrative Procedure Act (APA). The APA is a critical piece of legislation that helps regulate the process through which federal agencies create and enforce rules and regulations.
The APA plays an important role in a president’s executive orders. A president can set policy by issuing an executive action. This is done by directing a federal agency to execute that policy. For example, an executive order regarding environmental health risks would require the Environmental Protection Agency to carry it out. The APA was enacted in 1946 as a bipartisan measure to review and curb the executive branch’s growing influence. The APA applies to all Cabinet departments, such as the Defense Department, and independent agencies like the Security and Exchange Commission. The APA ensures administrative agencies in the executive branch act within their scope of authority, make decisions transparently, follow established procedures, allow for judicial review of agency decisions, and protect the rights of individuals affected by agency actions. Every president since 1946 has delt with APA challenges to their executive orders. Additionally, the APA plays a significant role in protecting the public’s right to challenge agency actions that may be unjust or exceed statutory authority. If an individual is harmed by an agency’s action, they can file a lawsuit stopping the agency from enforcing it, based on a violation of the standards in the Act. The most common standard of review used to challenge an agencies action is the “arbitrary and capricious” standard. This standard is largely fact-based and situation-specific. It requires an agency to demonstrate engagement in “reasoned decisionmaking” by showing an adequate explanation for its decision. This is done by providing the essential facts which the decision was based on while explaining what justifies the determination with actual evidence beyond a conclusory statement. The majority of lawsuits filed against the current Trump Administration include a violation of the APA. Some of these challenges include:
Executive orders on Immigration related actions on:
o Birthright Citizenship, punishment of sanctuary cities and states, expanding the use of expedited removal under the Immigration and Nationality Act (INA) to include noncitizens located anywhere in the U.S. who cannot prove they have been continuously present for more than two years?, the Department of Justice Executive Office for Immigration Review’s (EOIR) issuance a stop-work order halting funding for four programs providing legal resources to unrepresented people facing deportation, and the suspension of the US refugee admission program
Executive orders on a temporary pause of grants, loans, and assistance programs.
Executive orders and policy memos on Civil Liberties including:
o The housing of transgender inmates, a passport policy targeting transgender people, immigration enforcement against places of worship and schools, a ban on DEIA initiatives in the executive branch and by contractors, and on the removal of information from HHS websites under the executive order on Gender Ideology Extremism
There have also been APA challenges on orders impacting federal workers. These orders range from a large-scale reduction in force, forced deferred resignation offers, to termination of probationary employees that directs federal agencies to terminate tens of thousands of probationary employees en masse. Importantly, probationary employees are members of the competitive service in their first year of employment or of the excepted service in their first two years of employment and may include long-term federal workers who have recently been employed in a new position or new agency. Additionally, orders that authorize directors to reclassify thousands of members of their civil-service protections which allows them to be fired at will, the removal of independent agency leaders, and the stop work order dismantling the USAID have been challenged using the APA.
Importantly, challenges to the orders does not mean they are completely unenforceable or presumed to be a violate of a law. Instead, the challenges ensure that the actions follow the correct procedure. Currently, the challenges against Trump’s orders vary in results. Some challenges are still waiting to be heard in court, some have been ruled unenforceable temporarily while the judge considers the issue, and others have been dismissed on various grounds. While some of Trump’s executive actions have been blocked temporarily by the federal courts, it is not a final rule. The federal government has avenues to appeal it. Regardless of the outcomes, it is clear the APA haunted Trump during his first term, and is coming back for seconds.


https://crsreports.congress.gov/product/pdf/R/R41546
https://www.cbsnews.com/news/trump-lawsuits-apa-privacy-act-impoundment/
https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/
https://www.npr.org/2025/02/08/g-s1-47098/trump-arbitrary-lawsuits-gender-executive-actions
https://www.wiley-wheeler.com
https://www.wiley-wheeler.com/madeline-garza.html

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Arbitration agreements in the employment law context are very common. Arbitration is a form of alternative dispute resolution.  Arbitration agreements in the employment law context are significant because they establish a framework for resolving disputes between employers and employees outside of the courtroom. These agreements typically require both parties to settle disputes, such as issues related to discrimination, wage disputes, harassment, or wrongful termination, through arbitration rather than going through litigation in a public court system.  An arbitrator is a neutral third party who makes decisions based on the evidence presented. This can be more appealing than a trial where a jury or judge might be influenced by outside factors. Employers may view arbitration as less risky than a jury trial, where outcomes can be unpredictable.

However,  the implications of an arbitration agreement in place may pose a thorn for some and not so much for others. By way of example, one of the most common questions received in consultations regarding arbitration agreements is whether or not the agreement precludes an employee from engaging in the administrative process. The answer is no. So if you have an employment discrimination or retaliation claim, you are still permitted to seek engagement with the applicable governmental agency, specifically the Equal Employment Opportunity Commission or the Department of Labor where applicable. Additionally, there are other considerations of an arbitration agreement which employees should keep in mind.  Arbitration typically involves fewer procedural complexities than court trials, as it often lacks the formal rules of procedure and evidence that govern court cases. This can make the process easier to navigate, especially for employees without extensive legal knowledge. 

The enforceability of arbitration agreements has been subject to significant legal scrutiny. Courts, particularly in the U.S., have generally upheld the enforceability of arbitration clauses in employment contracts, but there have been some limits placed on these agreements. For example, some forms of arbitration clauses may not be enforceable if they are deemed to be too one-sided or unfair to the employee.  Arbitration agreements can limit employees’ access to the court system, which raises concerns about transparency and fairness. Critics argue that mandatory arbitration can take away the employee’s right to have their case heard in a public courtroom and to have access to a jury of their peers. In arbitration, employees may be limited in the types of remedies available, and the decisions made by the arbitrator are typically final and binding. This reduces the opportunity for appealing an unfavorable decision. Additionally, arbitrators may not have the same authority as a court to award large punitive damages or broad injunctive relief.

In conclusion, arbitration agreements in employment law are a double-edged sword, providing efficiency and privacy but also raising concerns about fairness, bias, and employee rights. The significance of these agreements largely depends on how they are structured and whether they balance the interests of both employees and employers.

If you are subject to an arbitration agreement and have questions, please contact an employment law attorney who will be able to guide you in addressing the pitfalls and obstacles. 

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

A big part of my day-to-day includes consulting employees regarding non-compete and non-solicitation agreements that they are considering signing or have already signed. (Note: Please always have a lawyer review such agreements before you sign them, not after. We usually can’t do anything about it if you ask us after!) 

What is the difference between a non-compete and a non-solicitation agreement? 

A non-compete and non-solicit are both what are called restrictive covenants. Put very simply, a non-compete restricts where you can work, and a non-solicit restricts who you can contact or recruit. They are different types of agreements, but both can exist as different clauses in the same document and often do. 

Wasn’t there something in the news that said non-competes were illegal?

            Not exactly. In April 2024, the Federal Trade Commission (FTC) issued a new rule that would ban most noncompetes, deeming existing and future noncompetes unenforceable. That rule also would have required employers to notify employees that their noncompete agreements are no longer valid. 

            However, as you can imagine, this was a very controversial move from the FTC. Litigation challenging the FTC noncompete ban was filed immediately. In Ryan LLC v. FTC, Judge Ada Brown sitting in the Northern District of Texas (which covers Dallas County) blocked the FTC rule. Similarly, a federal court in Florida also blocked the ban. However, a federal court in the Eastern District of Pennsylvania declined to enjoin the rule, stating that the FTC does indeed have competition-related rule making authority.

Are non-competes valid in Texas?

Yes. Texas is a very pro-employer state, and employers can legally propose non-compete agreements to employees. However, that doesn’t mean that there aren’t any limitations—there are.

Only four states have completely banned non-competes altogether: California, Oklahoma, Minnesota, and North Dakota. Other states have placed restrictions on them but don’t quite amount to a total ban, such as the income limits imposed on non-compete agreements in Colorado. 

            What limitations are there on non-competes in Texas?

            The Texas Covenants Not to Compete Act was enacted in 1989 and still governs Texas noncompete law. 

            For a non-compete to be enforceable in Texas, it must be:

1.     Ancillary to an otherwise enforceable agreement at the time the agreement is made. This means that there must be valid consideration in exchange for the employee’s covenant not to compete. This must go beyond continued employment or even a cash payment. Usually, the consideration given is the provision of the company’s “proprietary information,” but it could also be stock options or equity in the company, or even specialized training. 

2.     Reasonable in time. There is no bright line rule for what is a “reasonable” amount of time—this is a fact-specific inquiry for the court reviewing the noncompete. However, in general, Texas courts uphold non competes ranging from 1-4 years. 

3.     Reasonable in geographic scope. There is also no bright line rule for this element, and it is a fact-specific inquiry for the court reviewing the agreement. However, a lack of any geographic area mentioned in the agreement at all may very well make it suspect. 

4.     Reasonable in scope. A non compete cannot amount to an industry-wide ban on practice. For example, if you are a software engineer and you have an agreement that prohibits you from being a software engineer anywhere at all, period, that would likely be an invalid agreement. To be reasonable in scope, the restriction must bear some resemblance to the employee’s job and be limited to a particular segment of the industry. 

5.     Not impose a greater restraint than necessary. This is yet another fact-specific inquiry. However, agreements that appear merely to be punitive on the employee and intimidate them out of leaving the company are suspect. There must be a legitimate business interest that is being protected by the non compete. 

My employer wants me to sign a non-compete. What do I do?

Contact an attorney to review the document first so you know what you’re getting into. Schedule a document review with me in Dallas today or one of my talented colleagues in Houston or Austin, and we will be more than happy to walk you through the document, what it means, and what the law around the agreement is.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

President Donald Trump began his second term in office on January 20, 2025. Many speculated about what his first big move would be as president, but it seems that he quickly took many far-reaching actions. Of course, his immigration policies have been hard to ignore, as has his attempt to halt Medicaid, and his vows regarding impending tariffs. 

However, he has also launched a swift attack on worker’s rights. Immediately, President Trump instituted a hiring freeze at the federal level, which completely halted existing government employees’ abilities to receive promotions or transfers that were already in the works, plus resulted in the recission of pending job offers or interview processes for many. 

Perhaps even more shockingly, President Trump issued an executive order attacking DEI programs on the federal and private levels, halting certain federal DEI programs, ordering all federal DEI employees to be placed on leave, and targeting private companies with DEI programs. The President made it clear that he wishes “to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” However, his characterization of DEI as “illegal” is highly misguided. As my colleague Kalandra Wheeler pointed out, “equity levels the playing field. Being against equity means denying the fact that systemic discrimination exists and refusing to take meaningful steps to dismantle it. This denial reinforces privilege for some while sustaining barriers for others—effectively upholding discriminatory practices.” 

In response, major companies began to immediately rescind their DEI programs—such as Target, Facebook, and McDonalds. This is highly disappointing. DEI programs ensure that those without generational wealth or connections have the opportunity to sit at the table and share their skills that otherwise would go unnoticed and unappreciated. The absence of them means far less demographic diversity, but also diversity in skills, worldviews, and ideas—all things that make a workplace dynamic and worthwhile, and make businesses successful. 

Next, Trump dismissed key officials from the National Labor Relations Board, including General Counsel Jennifer Abruzzo, Deputy General Counsel Jessica Rutter, and Gwynne Willcox. Doing so left the Board without a quorum, deeming it unable to issue decisions and adjudicate complaints before it. Just this past Monday, however, he appointed William Cowen as acting NLRB General Counsel to fill that vacancy, but that still leaves the Board with a quorum. 

Then, President Trump removed two of the three Democratic commissioners on the EEOC. With them gone, there is no longer a left-leaning vote at the EEOC, and there are only two commissioners left. Trump also removed EEOC general counsel Karla Gilbride, who was nominated for that position by President Biden. Alongside these abrupt terminations, all mentions of sexual orientation and gender identity discrimination as illegal activity were stripped from government websites. Some have since been restored, but with a banner that reads, “The information on this webpage is being reviewed for compliance with the law and executive orders and will be revised.” On February 4, Andrew Rodgers was appointed by the President to serve as acting General Counsel. 

And perhaps most shockingly, federal employees were faced with the news that mass position eliminations are imminent. On January 28, 2025, most federal employees received an email presenting a deferred resignation offer, claiming that if they resign effective immediately, they could receive eight months severance. However, for those who elect not to resign, the government (via the Office of Personnel Management) went on to say, “we cannot give you full assurance regarding the certainty of your position or agency but should your position be eliminated you will be treated with dignity and will be afforded the protections in place for such positions.” However, outlets have reported that there have been acknowledgments that agencies don’t have guaranteed funding past March, so people may not even receive the eight months of severance—or even more than a full month. This is an unparalleled development, as reductions in force in the federal sector are heavily regulated, as is any ordinary termination. The last largescale reduction in force in the federal sector was under Reagan, and even then, it was not on the scale that the current administration proposes. 

Unsurprisingly, many legal challenges to this administration’s policies have already been filed. It will be many months—if not years—before the results of these challenges are known.

Yet again, we are living in unprecedented times. If you have been feeling uneasy, you are not alone. 

It can be exhausting and overwhelming, especially when it feels like drinking from a firehose. That’s why it is so important to have community. Get involved with a local organization that does work you believe in. Participate in a protest. Know that your voice still matters, even when it feels like it does not. And please, above all: remember to take care of yourself. Log off the internet for awhile if that’s what’s best for you, spend some time in nature, watch a movie. But wake up tomorrow ready to fight again, because the fight is far from over. 

And to be completely clear: workplace discrimination is still illegal. My colleague Cameron Hansen wrote a great blog about the current state of workplace discrimination laws that you can read here. 

Are you experiencing workplace discrimination or retaliation? Call me in Dallas today or one of my talented colleagues in Houston or Austin. 

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

The Fair Labor Standards Act (FLSA) provides specific guidelines regarding tipped employees and their compensation. Whether an employer pays the full minimum wage or claims a tip credit, it is essential to understand how these rules apply especially as some of the busiest restaurant days are ahead with Valentine’s Day falling on a Friday this year. The FLSA’s guidelines provide the minimum level of protection that can be supplemented with greater protections under state law. 

First, employees who qualify as a “tipped employee” are individuals that are engaged in an occupation where they customarily and regularly receive more than $30 per month in tips. As tipped employees, the FLSA permits employers to take a tip credit toward their minimum wage obligations. However, certain conditions must be met including:

  • • Employers must pay tipped employees a direct (cash) wage of at least $2.13 per hour.
  • • The employer can claim a tip credit equal to the difference between the cash wage and the federal minimum wage of $7.25 per hour, which currently amounts to a maximum of $5.12 per hour.
  • • Employees must receive enough in tips to ensure their total earnings meet or exceed the federal minimum wage of $7.25 per hour.
  • • If an employee’s total earnings fall below the minimum wage, the employer must make up the difference.

However, before taking a tip credit, employers must inform tipped employees of the following:

  1. 1. The cash wage the employer will pay (minimum $2.13 per hour).
  2. 2. The additional tip credit amount claimed by the employer (maximum $5.12 per hour).
  3. 3. That the tip credit cannot exceed the amount of tips actually received by the employee.
  4. 4. That all tips received by employees must be retained by them unless part of a valid tip pooling arrangement.
  5. 5. That the tip credit will not be applied unless the employee is informed of these provisions.

This notice can be given orally or in writing. Failure to provide notice means the employer cannot legally claim the tip credit.

Similar to the guidelines on how tips are supposed to be allocated or paid, there are specific restrictions on who is eligible to receive the tips. Regardless of whether an employer takes a tip credit, the FLSA prohibits employers from keeping any portion of employees’ tips for any purpose, whether directly or through a tip pool. Employers may not require employees to give their tips to the employer, a supervisor, or a manager, even if the employee is paid at least the federal minimum wage and no tip credit is taken. Only employees who customarily receive tips may participate in traditional tip pooling arrangements. However, if an employer pays the full minimum wage of $7.25 per hour, they may implement a nontraditional tip pool that includes non-tipped employees (e.g., cooks, dishwashers). Regardless of the type of tip pool, managers and supervisors may not receive tips unless they directly serve customers and receive tips for their service alone. To be clear, managers and supervisors are defined as individuals who:

  1. 1. Primarily manage the business or a recognized department or subdivision.
  2. 2. Regularly direct the work of at least two full-time employees or their equivalent.
  3. 3. Have the authority to hire or fire employees, or whose recommendations carry significant weight in such decisions.
  4. 4. Own at least a bona fide 20% equity interest in the business and are actively engaged in management.

Another example would be a restaurant manager who serves their own tables may keep tips received from those customers but cannot take tips from a tip pool or other employees.

Further, if an employee is working in dual jobs (e.g., a maintenance worker who also serves as a waiter) they can only receive tip credits for the hours spent in a tipped occupation. However, incidental tasks related to the tipped role (e.g., a server cleaning tables or preparing drinks) do not disqualify the employee from receiving tip credits.

In conclusion, understanding the ways that tips are handled under the FLSA is incredibly important for employees who want to make sure they are being compensated fairly. In addition to understanding tipping, the FLSA provides protections from retaliation for employees who speak up about compliance with the FLSA guidelines. If you think that there is something fishy going on with the tipping at your job, feel free to consult with a Houston Employment Attorney to discuss what can be done or what protections you may have under the law.

Madeline Garza
Austin/Houston Employment Trial Lawyer Madeline Garza

Every four years when the United States of America gets a new president, the first couple weeks after the inauguration are filled with numerous of Executive Orders to push forward their agenda. This year is no different, with President Trump signing dozens of executive orders in the first week of office. These orders affect nearly everything from immigration to oil to federal spending. 

The most common questions I hear are “Can he even do that?” and “what is an executive order?” The concept that a sitting president can sign an order and enforce it without a vote in congress can understandably raise alarm bells, especially when the orders impact our employment, our healthcare, and the broader economic system.

An executive order does not require the same requirements of legislation passed by Congress. Yet, executive orders carry the force of law and can be challenged in court when it violates the U.S. Constitution. While the power to issue executive orders is not explicitly stated in the Constitution, it is derived from the president’s role as the head of the executive branch. The two primary sources of presidential power related to executive orders are found in Article II, Section 1 and 3, of the U.S. Constitution, which outlines the powers of the President.

Despite the seemingly broad powers granted to the president, luckily, executive orders are not without limits. In 1952, the Supreme Court issued a landmark decision on presidential powers relating to executive orders in Youngstown Sheet & Tube Co. v. Sawyer, also known to many as the “Steel Seizure Case.” Justice Black wrote for the majority, stating “the President’s power to see that the laws be faithfully executed refutes the idea that he is to be a lawmaker.” In his concurrence, Justice Jackson stated a three-part test for analyzing conflicts between presidential and congressional powers, defining the limits of the president to issue executive orders. 

Under the test, the president’s powers are at their strongest when Congress has given the president authorization to act either directly or implied, basically providing the president a “permission slip” to execute an executive order.  When a president acts without permission or denial from congress, generally, they must rely solely upon the powers granted by the Constitution. However, as Justice Jackson stated, there is a “zone of twilight” where the President and Congress may have concurrent authority. In this case, any actual test of power will use the importance of the events at hand and factors that are difficult to estimate, instead of using abstract theories of law. Lastly, when the President takes measures that are incompatible with the expressed or implied will of Congress, his powers are at the lowest. Here, the President can only rely upon their constitutional powers minus congressional power over the matter in question. 

Outside of the zones of power, the checks and balances system plays an additional role, ensuring the orders are in compliance with the Constitution. For example, Congress has the authority to basically overrule an executive order by passing legislation that overrides or limits the effects of an executive order. Additionally, the courts have the authority to stay enforcement, which halts the implementation of an order, or overturn an order that is unconstitutional. 

There are already many legal challenges to Trump’s executive orders. As of January 29, 2025, there have been five cases filed in court, challenging the constitutionality of the executive order revoking birthright citizenship. In one of the cases, the judge issued a temporary restraining order against the executive order. Additionally, there have been numerous of challenges against the executive order establishing the “Department of Government Efficiency” (DOGE), arguing the order violates the Federal Advisory Committee Act. This Act bars the delegation of decision-making authority to private citizens without public access. Other executive orders have been challenged on violations of the First Amendment and the Fifth Amendment’s Due process clause. These include the orders that ban transgender individuals from serving in the military, the housing of transgender inmates, the punishment of sanctuary cities and states and other orders impacting our civil liberties. 

With the President’s executive order power expanding based on the zone it falls under, and the inconsistency of the current Supreme Court following established precedent and tests for constitutionality, it is becoming a gamble of knowing which orders will be ruled unconstitutional, even if there is a strong basis to do so. With this said, it is imperative to stay up to date with the current orders, especially due to impact they have on our livelihood. 

https://constitutioncenter.org/the-constitution/supreme-court-case-library/youngstown-sheet-tube-co-v-sawyer-steel-seizure-case

https://constitutioncenter.org/blog/defining-the-presidents-constitutional-powers-to-issue-executive-orders

https://www.wiley-wheeler.com/contact-us.html

https://www.wiley-wheeler.com/madeline-garza.html

Kalandra Wheeler
Kalandra Wheeler is a Board Certified Houston/Austin employment lawyer.

Diversity, Equity, and Inclusion (DEI) initiatives aim to foster environments where people of all backgrounds feel valued, have equal access to opportunities, and can thrive regardless of their race, gender, disabilities, religion, age, sexual orientation, class status, or military service status. The purpose of DEI initiatives is to create inclusive workplaces, schools, and communities. Yet, opposition to DEI efforts has grown and they are currently under attack from every direction.

Critics argue that such initiatives are unnecessary, divisive, or even unfair. To that I say, what world are you living in, because it is surely not this one. 

In an ideal world – excuse me, maybe I should say an unimpeachable world since what is ideal for some is certainly not ideal for others – we would all start at zero. Everyone could be judged on merit. Everyone would have equal access to resources and opportunities. In a world beyond reproach, bigots would not exist. Unconscious bias, or even outright hatred, would be no more.  However, this is not our world. If you claim it is, you are either woefully ignorant or being wholly disingenuous in your claims.

While debate is healthy in any society, it is essential to confront the core implications of being “anti-DEI.” Rejecting DEI initiative is not a neutral stance. Instead, it perpetuates systems of inequity and exclusion, making it, in effect, a position that supports and fosters discrimination. 

Diversity initiatives seek to rectify long-standing inequalities by creating spaces that reflect the world we live in. Historically, many institutions—corporations, universities, and governments—were structured to privilege certain groups while marginalizing others.

To oppose diversity efforts is to reject the idea of actively addressing these disparities. Without intentional action, the status quo of exclusion remains. This lack of action implicitly supports systems that benefit a few while disadvantaging many.

Equity ensures that everyone has access to the resources and opportunities they need to succeed, recognizing that some groups start at a disadvantage due to systemic barriers. Critics often misinterpret equity as unfairly favoring one group over another.

In reality, equity levels the playing field. Being against equity means denying the fact that systemic discrimination exists and refusing to take meaningful steps to dismantle it. This denial reinforces privilege for some while sustaining barriers for others—effectively upholding discriminatory practices.

Inclusion ensures that diverse voices are welcomed, heard, and respected. Without inclusion, marginalized individuals face isolation, underrepresentation, and bias.

Rejecting inclusion efforts sends a message that the voices and experiences of historically marginalized groups do not matter. It reinforces exclusionary norms that have long defined many workplaces, schools, and institutions. Choosing to oppose inclusion is choosing to tolerate—and perpetuate—exclusion.

Some argue that rejecting DEI efforts is about maintaining neutrality or avoiding “politics.” However, systems of inequality persist without deliberate efforts to challenge them. Neutrality in the face of injustice is not neutral; it is complicity.

Martin Luther King Jr. famously said, “Injustice anywhere is a threat to justice everywhere.” By opposing DEI, individuals signal that they are comfortable with – or indifferent to – systems of discrimination and inequality.

The absence of DEI efforts allows bias, prejudice, and discrimination to thrive unchecked. These systems are not self-correcting; they require intentional disruption. DEI is that disruption.

When someone opposes DEI, they are effectively saying they do not want to address disparities or create more inclusive spaces. This stance protects discriminatory practices by default, making “anti-DEI” synonymous with “pro-discrimination.”

Instead of dismantling DEI initiatives, we should strive to understand their importance and engage in meaningful conversations about how to create more equality. DEI is not about blame or division; it is about building stronger, more inclusive communities where everyone has the opportunity to succeed. 

Choosing to support DEI is choosing to reject discrimination and build a future rooted in fairness, respect, and equality. Opposing it, whether consciously or unconsciously, perpetuates the very injustices DEI seeks to combat. Many that opposed DEI initiatives truly don’t understand them or merely like the feeling of superiority created by making sure others are disadvantaged.

It’s time to move beyond debates over DEI’s necessity and focus on how we can collectively create a world where diversity is celebrated, equity is prioritized, and inclusion is the norm—not the exception.

By embracing DEI, we make a commitment to justice and equality. The alternative is to tacitly endorse systems that exclude, oppress, and discriminate. The choice is clear.