Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Since it is spooky season, today’s blog is about something that seems to intimidate folks from time to time—mediation. As an employee involved in an active employment dispute, you may hear your attorney advise you to consider mediation. While this may sound like a scary, daunting event, mediations are a highly valuable tool for those involved in workplace conflicts. 

Mediation is one of the most efficient methods of resolving a pre-litigation dispute in advance of court. Mediations allow for parties to discuss their dispute in a less adversarial environment. I’ll walk you through the pre-litigation mediation process, the benefits, and what to expect as a Texas worker.

What is Mediation?

Mediation is a voluntary process in which the parties engage a neutral third-party to support them in obtaining a mutually agreeable resolution. At our law firm, our clients are involved in anything from discrimination matters to workplace sexual harassment to whistleblower retaliation claims. We often advise our clients to consider mediation with their employer or former employer because of the benefits associated with efficient, early resolution. Our opponents are typically interested, too, for many of the same reasons.

The Road to Resolution 

1. Choosing a Mediator

The first step in the process is to discuss mediation with the employer or former employer. If the parties both have interest, the parties must then agree on which mediator to select. 

When going with a private mediator, we counsel our clients to consider mediators with expertise in conflict resolution and employment law disputes. It is essential to choose someone both parties feel comfortable with to ensure agreement and an effective mediation. 

The EEOC provides free mediators as well. These mediators are normally assigned to the parties at random, once both sides express interest in using an EEOC mediator. 

2. Initial Preparation

Prior to the mediation, you and your attorney will:

  • Gather & Review the Evidence: We review all the relevant information we have in your dispute, including all the documents and other materials you have that support your position. We then consider all the arguments available to both sides. We finally relay our thoughts on the case with our clients and discuss various perspectives and strategies for the mediation. 
  • Discuss Housekeeping: Before the mediation, you and your attorney will discuss general things like dress and demeanor. You’ll want to be very professional in both respects. We’ll also review how the selected mediator normally hosts his/her/zer mediation. Our employment attorneys know most of the mediators in the area and have some level of insight into how they host and manage their mediations. Different mediators have different styles and expectations for how it will go. We prepare our clients with each mediator’s style in mind whenever possible.
  • Clarify Objectives: We’ll review what you hope to achieve from mediation and discuss realistic expectations.

3. The Mediation Session

The mediation session itself usually follows a structured format.

  • Opening Statements: Some mediators have the parties meet in a room at the top of the mediation. In today’s technologically savvy world, many mediations happen via Zoom as well. For a Zoom mediation, the mediator will move the parties in and out of “Zoom Rooms.” If the parties are meeting together first, each party has the opportunity to present their side of the dispute and their view of the case. It is a chance to share perspectives and establish context. 
  • Private Caucus: The mediator then separates the parties into different rooms or Zoom Rooms. The mediator conducts a private session with each party. These discussions allow the mediator to provide guidance on each party’s perspectives and counteroffers. The private caucusing also allows each side to speak with the mediator about the strengths and weaknesses of their case. The mediator may use these sessions to explore potential compromises.
  • Negotiation: The mediator works to help both parties identify common ground and negotiate back and forth to a resolution. Mediators may offer more creative solutions for the parties to satisfy everyone’s objectives.

4. Reaching an Agreement

If the parties can reach a consensus, they then proceed to drafting and executing a settlement agreement. We review these documents carefully with our clients before execution to ensure that they understand the terms.

Benefits of Mediation

  • Cost Effective: Mediation is typically far less expensive than litigation—for both sides—as it involves far less in legal fees and associated costs. Private mediators do not mediate for free. However, their fees are likely much less than what it will cost both sides to retain counsel for litigation. Court filing fees alone can make up a good percentage of the cost of a private pre-litigation mediator. For those employees or former employees with pending Charges before the EEOC, EEOC mediators are free.
  • Efficient: Should a mediation result in settlement, as most do, you can avoid spending years on litigation and the stress that comes with fighting in court. Mediations are typically finished within a single day. The settlement paperwork doesn’t take too much time to review and execute either, assuming the terms are all reasonable and acceptable for both parties. Mediations are an effective tool for prompt resolution and closure. 
  • Confidentiality: Mediation sessions are confidential, protecting the parties from public exposure and potential reputational harm. Lawsuits, on the other hand, are not private for either side. 
  • Control Over Outcomes: Unlike in court, pre-litigation mediation allows the parties to have more control over the outcome. 

Conclusion

And there you have it! Mediations are not so spooky after all. They offer a constructive path for resolving employment disputes without the need for litigation. Stay open-minded, be willing to remain resilient during the back and forth, and press on to a mutually agreeable resolution.

If you need an experienced employment attorney to represent you in an employment dispute, give us a call.

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

Contracts are like relationship agreements for grown-ups—both parties promise to do their part, and if all goes well, nobody gets ghosted. Contracts (e.g., employment contracts or severance agreements) are meant to clearly outline each party’s rights, duties, and obligations. However, when one party suddenly vanishes or otherwise fails to fulfill their obligations, a breach occurs—like being stood up on date night. Cue the financial heartbreak and possible damages for the non-breaching party, who’s left wondering where it all went wrong. Enter detrimental reliance, the legal equivalent of “but you said you’d be there!”—a concept that can seriously change the outcome of a breach of contract claim. Understanding how breach of contract and detrimental reliance work together can help businesses and individuals avoid being ghosted in the legal world.

Breach of Contract AKA the Legal Version of a Bad Breakup: It’s like when someone promises to be there for you but ghosts you instead. A breach can hit in a few different ways:

  • • Material breach: A substantial failure to perform an essential element of the agreement that undermines the contract’s essence. This is like finding out they never loved you—it destroys the foundation of the relationship (or contract).
  • • Minor breach: A partial failure to perform where the core of the agreement remains intact, but some terms weren’t fulfilled. It’s like forgetting an anniversary but still showing up for date night. Annoying, but the relationship is still intact—mostly.
  • • Anticipatory breach: This occurs when one party indicates in advance that they won’t fulfill their obligations. It’s like them texting, “Yeah, we signed a lease, but I don’t think I’ll be moving in” before you even unpack. Harsh, right?

Detrimental reliance, pursued under the theory of promissory estoppel, is like when someone tells you, “I’m not like the others, I swear,” and you believe them—even if you never defined the relationship (executed a formal contract). Maybe you quit your job or made a big move because of their promise, only for them to bail. Now you’re left holding the emotional (and sometimes financial) baggage. In simple terms, detrimental reliance may be when you’ve rearranged your life based on sweet talk without nuptials.

For detrimental reliance to apply, these conditions must generally be met:

  • • A clear and definite promise: The party making the promise must express a clear commitment. Maybe it was, “I’ll never leave you,” or “I’m ready for something serious.” The key is that they made a solid promise—no vague “we’ll see” stuff.
  • • Reasonable reliance: The relying party must show that they reasonably believed and depended on the promise. You didn’t just fall for sweet words; you had every reason to believe them. Maybe you made future plans together—shopping for rings, meeting the family—so you weren’t being irrational. You had reason to trust them.
  • • Detriment: The reliance must result in some form of loss or harm. Maybe you passed up other opportunities, invested financially, or gave up something important. Now, because you counted on that promise, you’re worse off.

Ultimately, it’s up to a court to decide whether justice requires enforcement. This is the part where the universe (or maybe a judge or jury) says, “It wouldn’t be fair for them to walk away without paying some compensation for the mess they made.”

Detrimental reliance becomes significant in contract disputes when one party argues that, despite the absence of a formal contract, the other party’s promises induced them to take specific actions, resulting in harm when those promises weren’t kept. While detrimental reliance can be a helpful legal safety net in certain situations, it’s always better to have a well-drafted contract. It’s less risky to rely on a written agreement that clearly outlines each party’s obligations.

If you believe you’ve suffered from detrimental reliance or a breach of contract, we have attorneys available for consultation.

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

In the wake of the national disasters, most recently the devastation left by Hurricane Helene and Hurricane Milton, it is important to reflect on whether employees in the lone star state have real protections during these disasters. In Texas, private employees enjoy no law-mandated protections for their employment even in the face of mandatory evacuation orders. Instead of protections that ensure that employees who are affected by such events can take time off work without jeopardizing their employment, income, or benefits, Texans would be left without concrete options. Disaster leave is a critical element of the state’s broader response to emergencies like hurricanes, floods, wildfires, and other significant events that can disrupt both personal and professional lives. 

To fill in the gaps left by Texas law, disaster leave is mostly guided by federal statutes like the Family and Medical Leave Act (FMLA). However, there are state-specific provisions for public employees. For example, the Texas Government Code, outlines disaster leave for state employees. It has mandates for state agencies to grant leave with pay to employees who are activated to assist in the state’s emergency response to a declared disaster. This provision is primarily aimed at employees of state agencies who are called upon to assist in disaster recovery efforts or who are personally affected by disasters. In contrast, for private sector employees, disaster leave protections are not as clearly defined, but there are some options though scarce.

Disaster Leave for Private Employees

Texas does not have a universal, statewide law that mandates disaster leave for private employees. Instead, protections for private employees often depend on company policies or collective bargaining agreements. Some large companies may offer disaster leave as part of their benefits package, allowing employees to take time off when affected by a disaster like a hurricane or tornado. Others may allow the use of accrued paid time off (PTO), sick leave, or vacation time for disaster-related absences.

For those without formal disaster leave policies, employees might need to rely on the Family and Medical Leave Act (FMLA). FMLA provides up to twelve weeks of unpaid leave for certain family and medical reasons, which may include disaster-related health issues. However, this is not specific to disasters and only applies to employees who meet the eligibility criteria, such as working for an employer with at least 50 employees and having worked for the employer for at least 12 months.

Additionally, if a disaster causes an injury or illness that is covered under workers’ compensation laws, employees may be entitled to benefits under those provisions. However, these are limited to cases where the injury or illness is directly related to the employee’s job duties.

Employer Discretion and Federal Assistance

In many cases, employers have discretion over how they handle disaster leave. Some may choose to be more lenient and offer additional paid or unpaid leave to employees who are affected by disasters, while others may stick strictly to their established policies and provide no job protection even in the wake of a national disaster. In some cases, employers may allow employees to work remotely if the disaster prevents them from coming into the office but does not impair their ability to perform their job duties.

Federal assistance programs can also play a role in disaster leave. The Federal Emergency Management Agency (FEMA) and other federal agencies often provide assistance to individuals and businesses in the aftermath of a disaster. This may include financial aid for those who have lost their homes or jobs, or for businesses that have been forced to close temporarily. While these programs do not directly mandate disaster leave, they can provide a safety net for employees who are affected by disasters and cannot work.

Conclusion

Disaster leave protections in Texas are an essential part of the state’s response to natural and man-made disasters but the protections for private employees are lacking. For public employees, these protections are more clearly defined, with policies that provide paid leave for those involved in disaster response or personally affected by disasters. Private-sector employees, however, may need to rely on a patchwork of company policies, federal laws like FMLA, and disaster assistance programs. As Texas continues to face significant disaster risks, including hurricanes, tornados, wildfires, and floods, disaster leave protections must be enhanced for all Texans.

Areyana Johnson
Austin/Houston Employment
Trial Lawyer Areyana Johnson

It is widely known that is unlawful to discriminate against someone with a disability. Having a disability is considered a protected classification under the Americans with Disabilities Act, as amended and the Texas Labor Code. This blog addresses whether and under what circumstances an employer may inquire about your disability during the pre and post onboarding employment process.

One of the core tenets of the ADA is to prevent discrimination against qualified individuals based on their disabilities, ensuring they have equal opportunities in the workplace. This means that employers are prohibited from inquiring about an applicant’s disability status during the hiring process, a restriction that promotes a fair assessment of a candidate’s abilities and qualifications without bias. The rationale behind this prohibition is to create a level playing field where an individual’s skills, experience, and potential can be evaluated independently of any disabilities they may have. When employers focus solely on an applicant’s abilities and qualifications rather than their disability status, it encourages a more diverse workforce and helps to dismantle preconceived notions about the capabilities of people with disabilities.

 By refraining from such inquiries, employers not only comply with the legal stipulations of the ADA but also foster an inclusive environment that values diversity and promotes a culture of respect and equality. Furthermore, asking about disability status can lead to unintended biases and stereotypes, potentially influencing hiring decisions in a negative way. The ADA recognizes that many individuals with disabilities are highly qualified and can contribute significantly to an organization, and this legislation serves to eliminate barriers that may inhibit their employment opportunities. From an employee’s perspective, it is essential to understand that the inquiry into an applicant’s disability status can lead to legal repercussions if it is determined that an employer-based discrimination occurred based on this information. In practical terms, employers should focus their questions during the hiring process on the candidate’s qualifications, skills, and experiences relevant to the job. For instance, an employer may ask about a candidate’s ability to perform specific tasks or to fulfill the essential functions of the job without referencing any disability.

This approach not only aligns with the ADA but also encourages a dialogue that is centered on the candidate’s professional competencies. It’s also important to note that while employers cannot ask about disability status, they are permitted to inquire if an applicant requires reasonable accommodations to perform their job effectively, but this is typically done after a job offer is made or when discussing specific tasks related to the position. This nuanced understanding allows for the necessary adjustments to be made without infringing upon the rights of the applicant. Employers should be aware of the concept of “disability disclosure,” which occurs when applicants voluntarily share their disability status. In such cases, it is crucial that employers handle this information sensitively and confidentially, ensuring that it does not influence hiring decisions inappropriately. Additionally, employers are encouraged to implement training programs to educate their staff about the ADA and the importance of inclusivity in the workplace. Such training can equip hiring managers with the tools they need to create a more equitable hiring process, emphasizing the importance of valuing candidates for their capabilities rather than their disabilities. By establishing clear policies that promote accessibility and support, employers can cultivate an environment that not only complies with legal standards but also enhances their organizational culture.

In conclusion, the ADA plays a vital role in protecting individuals with disabilities from discrimination in the hiring process. By prohibiting employers from asking applicants about their disability status, the ADA encourages a focus on qualifications and abilities, fostering a more inclusive and equitable workplace. Employers who embrace these principles not only comply with the law but also benefit from the diverse perspectives and talents that individuals with disabilities bring to the workforce. This commitment to inclusion can ultimately lead to a more dynamic, innovative, and successful organization, highlighting the importance of valuing every individual for their unique contributions. If you would like to know more about how our firm can assist you with your potential legal matter, please don’t hesitate to contact me.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Generally, an employer must take prompt remedial action upon its awareness of discrimination or harassment in the workplace. This general duty is applicable whether an employer has actual awareness or should be aware of the unlawful behavior taking place.

Sensibly, this means the employer should conduct an investigation to unearth what steps of actions should be instituted next. It is important to note that where employers fail to take prompt remedial action, employers can be held liable under several employment laws such as Title VII of the Civil Rights Act of 1964 and Texas Labor Code.

Employer instituted action within one month following receipt of unlawful harassment in the workplace is considered prompt. By way of illustration, the Texas Supreme Court previously answered on whether an employer acted promptly following a complaint of sexual harassment. In Fossil Group, Inc. v. Harris[1], here the issue was whether there was legally sufficient evidence that the employer failed to respond promptly to complaints regarding sexual harassment. While the evidence was uncertain on the timing of the employer’s receipt of harassment, it was undisputed the employer gained knowledge of the unlawful behavior.

Moreover, assuming the employer learned of the harassment on the earliest possible date, it acted promptly as a matter of law by discharging the harasser within one month.  “[C]omplainants often must ‘tolerate some delay’ for the employer to gauge the complaint’s credibility and the seriousness of the situation, especially when a complaint is sent through an anonymous reporting system.” Here, a month was not an unreasonable time under the circumstances considering that the plaintiff resigned within days of her first complaint, preventing a faster investigation and lessening the urgency of employer action.  Furthermore, there was no evidence of a need for “interim” action because the plaintiff was no longer an employee. The high Texas court rejected the plaintiff’s theory that the employer gained earlier “constructive” notice of the harassment. None of the individuals who knew of the harassment had the authority to address the problem or an affirmative duty to report the problem to management. This case showcases a recent and useful example of prompt action by an employer following notification of unlawful behavior in the workplace. Employers should not grow idle hands following notification of discriminatory or harassing behavior against its employees.

Now that we have a general idea of what prompt remedial actions looks like, what’s next from here? Typically following a complaint regarding unlawful behavior, an employer should investigate. Employers have a crucial obligation to address and rectify instances of unlawful harassment in the workplace promptly and effectively. Upon receiving notice of such harassment—whether through a formal complaint, observation, or any other means—the employer must act swiftly to investigate the allegations thoroughly. This duty encompasses several key responsibilities. Firstly, the employer must ensure that the investigation is impartial and conducted by individuals who are not biased or involved in the matter at hand. This process should include gathering evidence, interviewing relevant parties, and documenting findings comprehensively. Concurrently, the employer is required to take immediate steps to prevent further harassment, which may involve separating the complainant and the alleged harasser, adjusting work assignments, or providing interim measures to protect all parties involved. If the investigation substantiates the harassment claims, the employer must then implement appropriate corrective actions. These actions could range from disciplinary measures against the harasser to revising policies or providing additional training to staff. Furthermore, the employer should communicate clearly with the affected employees about the outcome of the investigation and the steps taken to address the issue. It’s vital that the employer demonstrates a commitment to creating a safe and respectful work environment by fostering a culture where harassment is not tolerated and where employees feel empowered to report such behavior without fear of retaliation. Failure to act promptly and decisively not only undermines the trust of the workforce but also exposes the organization to potential legal liabilities and reputational damage. 

In sum, an employer should provide prompt and effective response to unlawful conduct. Even where an employer has acted promptly, an employer should also ensure that its policies and practices are sound as to better assist in the facilitation of haste action from various outlets within the employer.

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

Plaintiffs’ lawyers work tirelessly to protect employee rights, battling employers who often prioritize their own interests over those of their workers. Big business needs you in their workforce. Still, they know workers need employment, and the lure of the job is enticing when faced with the alternative: unemployment. American workers have bills to pay and families to provide for. So, in exchange for offering employment, many employers ask workers to unknowingly bargain away their rights.

It is increasingly common for employers to require employees to sign employment agreements. These agreements do nothing to guarantee the employee’s job, as they often include language that states, “nothing in this agreement changes the employee’s at-will employment status,” or something similar. This means the employee can still be fired for any reason, no reason at all, or even a fabricated reason—as long as it’s not an unlawful reason.

The real purpose behind these agreements is to protect employers. When something unfair or unlawful happens to an employee, employers want to make sure the business has limited its exposure or liability. They do this by stealing from their workers.

Employers steal opportunities through noncompete and non-solicitation agreements. Employers steal the justice system through arbitration agreements that remove judges and juries from the legal process. Employers also steal time with clauses that reduce the period in which employees can bring claims against an employer for its violations of the law.

Unfortunately, many employees sign employment agreements without fully understanding the terms; the majority aren’t lawyers. However, you can bet that most companies had lawyers draft these agreements. Other employees may not even realize they’ve signed these various agreements, the employer having buried them in a mountain of onboarding paperwork and training materials. Sadly, this means many employees may not discover the great heist until it is too late.

Any belief underlying a claim that all employees signing these agreements have a choice, or that all employees have bargaining power when entering into these contracts, is misplaced. In reality, most are fundamentally unconscionable, with employers holding significant power over prospective employees who are desperate for work. Despite this imbalance, courts often uphold these agreements.

There is constant effort by plaintiffs’ attorneys, organizations and agencies designed to protect employee rights, and employee-friendly politicians and leaders to protect the rights of American workers. Despite these efforts, the struggle persists, as big business and the wrong lawmakers continuously place so little value on these rights.

In 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA) amended the Federal Arbitration Act (FAA), granting sexual assault and harassment victims the right to pursue their claims in court, even if they had signed predispute arbitration agreements. However, the fight against arbitration agreements in other areas of employment law continues.

Arbitration agreements are particularly problematic. Arbitrators make their money from the employers who require employees to sign these agreements. When a dispute arises, it is the employer who pays for the arbitration process, including the arbitrator. If this were happening in a court of law, and a party to a dispute paid a judge, it would be considered bribery. Yet, this conflict of interest remains hidden behind the idea that employees “consented” to arbitration, even though the alternative was quite possibly unemployment.

In April 2024, the Federal Trade Commission (FTC) issued a rule to prohibit employers from entering into new noncompete agreements and from enforcing existing noncompetes. The FTC argued that noncompetes restrict workers’ freedom, suppress wages, and often force employees to relocate or leave professions they enjoy.

Of the FTC rule that was set to go into effect in September 2024, FTC Chair Lina M. Khan stated, “The FTC’s final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.” However, companies have sued to block the implementation of this rule, leaving the decision in the hands of the courts.

Some states have already protected employees by banning noncompetes, including California, Minnesota, North Dakota, and Oklahoma. In these states, employees enjoy greater protections than under federal law. Employers must compete for valuable workers, pay them what they are worth, and foster opportunities for economic growth.

Where noncompetes are still allowed, plaintiffs’ attorneys continue to fight these restrictive agreements.

Likewise, some employers attempt to reduce the statute of limitations for filing claims. Where the law, as written, may provide an employee with a 300-day, 180-day, or 2-year statute of limitations, employees may unknowingly sign away these deadlines. Consequently, if an employee doesn’t realize they’ve signed an agreement with serious time limitations, they may find they’ve gone to the courthouse too late. Disturbingly, some courts have found these shortened timeframes acceptable, further disadvantaging employees.

New York City took action to protect workers by updating its Administrative Code. This change ensures that any employment agreement provisions attempting to shorten the statutory period for filing claims under the NYC Human Rights Law are unenforceable and void. The city’s amendments demonstrate the positive impact that lawmakers can have on protecting workers and upholding justice.

There are many ways that employers steal rights from employees. Unfortunately, as more employers implement restrictive agreements, employees have fewer job options for avoiding them. When courts and employers fail to protect workers, it falls to lawmakers to step in. Federal, state, and local officials hold the power to prevent injustice and ensure employees retain their rights.

Every lost protection for American workers is another reason to vote. Until stronger legal protections are in place, employees must remain vigilant. If you have signed an employment agreement and need to understand your rights, our attorneys are available for consultation and here to help you navigate the complexities of these contracts.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

This blog dives into general concepts of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

USERRA is creature of federal law which provides protection to employees in the military.  In general, USERRA provides a guaranteed place of employment upon returning from military leave, which includes service or training. By place of employment, USERRA specifically guarantees the right to be reemployed at an employee’s job with the same or nearly comparable position accompanied with the same benefits.

USERRA applies to employers of all sizes including the federal government. In order to be eligible for reemployment, an individual must satisfy certain requirements. As defined in the statute, rights of reemployment extend to individuals who have been absent from work due to “service in the uniformed services”.[i] Service in the uniformed services is broadly defined as performance of duty on a voluntary or involuntary basis in a uniformed service. [ii]Examples include active duty, active duty for training, initial active duty for training, inactive duty for training, full time National Guard duty, and absence from work for an examination used to assess an individual’s duty for fitness.[iii] This is not an exhaustive list, for more qualifying acts of service, see here.

Moreover, uniformed services consist of the Army, Marine Corps, Navy, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve, Army National Guard and Air National Guard, Commissioned Corps of the Public Health Service, or any group of individuals authorized by the President in a time of war or emergency.[iv]

USERRA’s reemployment rights are only applicable where an individual ‘s cumulative absence from work does not exceed five years. Upon returning back to work, a service member must return within a specified time frame. This time frame is based on the length of service. By way of example, a service member whose military service took place for 1 to 30 days must report back to work on the first regularly scheduled work date that is one day after the completion of service. However, this temporal requirement has accompanying limitations. The service member must be permitted travel time for a safe return back to work following military service and an 8-hour rest period. Where a service member finds an impediment such as impossibility or unreasonableness to return to work on the date given, the service member must report to work as soon as possible. This flexibility is only permitted when faced with an obstacle as described in the preceding sentence and through no fault of the service member. For additional time frames for reporting back to work following duty, see here.

The type of reemployment position is also dependent upon the length of service absent a disability incurred or aggravated by service. For example, an individual whose service lasted from 1 to 90 days, must be promptly reemployed in first a job the individual would have held barring reporting for duty.[v] The individual must be deemed qualified for the position or can become qualified following the employer’s reasonable efforts.[vi] Where unavailable, the individual must be promptly reemployed in a position which the individual was employed on the date of the start of service in the uniformed services.[vii] However, this is only where the individual is unqualified to perform the duties of the position the individual would have been returned to absent reporting to service and reasonable efforts by the employer. [viii] This hierarchy is premised upon the escalator position principle. Under this principle, it is required that every returning service member is reemployed into the position the service member would have been in with reasonable certainty if employment was continuous and with full seniority.

In sum the main takeaways from this blog are two-fold: military members have rights to reemployment following reporting for duty and their reemployment position is based upon their length of reported service. It is on the employer to ultimately provide benefits, including pay, to employees on a leave of absence. USERRA requires that employers offer the most favorable treatment accorded to any comparable form of leave when an employee performs service in the uniformed services.

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

Service animals are an essential component of the lives of many individuals with disabilities, providing significant assistance that enables them to navigate daily activities with greater independence and safety. Under various legal frameworks, including the Americans with Disabilities Act (ADA) in the United States, service animals are recognized as a reasonable accommodation, ensuring that individuals with disabilities have equal access to public spaces and services.

Definition and Role of Service Animals

Service animals are typically dogs that are individually trained to perform tasks or do work for people with disabilities. These tasks can vary widely depending on the specific needs of the individual. For example, service animals can assist individuals with visual impairments by acting as guide dogs, or they can alert individuals with hearing impairments to important sounds. Service animals can also be trained to detect and respond to medical conditions such as seizures or diabetic episodes, providing vital assistance that can be lifesaving. Moreover, they can aid individuals with mobility impairments by retrieving objects, opening doors, or providing stability for walking.

The ADA defines a service animal as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The work or tasks performed by the service animal must be directly related to the individual’s disability. It is important to note that there is a differentiation between a service animal and an emotional support animal, which is not addressed here.

Legal Framework and Protections

The ADA mandates that service animals must be allowed to accompany people with disabilities in all areas where members of the public are permitted to go. This includes restaurants, hotels, retail stores, hospitals, and public transportation, among other places. The presence of a service animal is considered a reasonable accommodation, and businesses or entities cannot impose additional charges or requirements on individuals with service animals.

Furthermore, the ADA stipulates that businesses may only ask two specific questions when it is not obvious what service an animal provides: 

  1. (1) Is the dog a service animal required because of a disability? 

(2) What work or task has the dog been trained to perform? 

These questions are designed to ensure that the individual’s privacy is respected while verifying the legitimacy of the service animal.

In workplaces, service animals can also be a critical part of reasonable accommodations, enabling employees with disabilities to perform their job functions more effectively. Employers are required under the ADA to provide reasonable accommodations unless doing so would cause undue hardship for the business. If an individual requires this type of accommodation, the interactive process begins by an employee identifying their need for a reasonable accommodation to the appropriate person in their workplace. After requesting the reasonable accommodation, the interactive process should aid both the employer and employee into coming to a reasonable accommodation.

In conclusion, service animals are a vital accommodation for individuals with disabilities, facilitating independence and access to public life. Legal frameworks like the ADA provide essential protections, ensuring that these animals can accompany their handlers in various settings without undue barriers. If you believe that you are an individual that has been discriminated against because of your need for a reasonable accommodation like a service animal, then please call Wiley Wheeler, P.C. to discuss your potential case.

Harjeen Zibari
Dallas Employment Trial Lawyer Harjeen Zibari

A great deal of our practice involves interfacing with federal agencies, but they’re not all the same. The National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL) are three distinct federal agencies in the United States, each with different responsibilities related to labor and employment.

National Labor Relations Board (NLRB) The NLRB primarily oversees the enforcement of labor laws related to collective bargaining and unfair labor practices.It protects the rights of employees to organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.

The NLRBinvestigates and remedies unfair labor practices, conducts elections to determine union representation, and enforces orders related to labor disputes.

It operates under and is concerned with the National Labor Relations Act (NLRA) of 1935.

Typical Cases includeunion organizing efforts, employer retaliation against union activities, and collective bargaining disputes.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws prohibiting employment discrimination. It was created to ensure that employees and job applicants are not discriminated against based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.

The EEOC investigates discrimination complaints, mediates and settles discrimination claims, and files lawsuits in a select handful of cases every year.

The main legislation the EEOC deals with is Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act of 1963.

Typical cases include workplace harassment, discrimination in hiring, firing, promotions, or compensation, as well as retaliation for filing a discrimination complaint or otherwise engaging in protected activity under a relevant statute.

Department of Labor (DOL)

The DOL oversees a broad range of labor and employment issues, including workplace safety, whistleblower protection, wage standards, and federally-protected leave under the FMLA.

The DOL enforces federal labor standards laws, administers unemployment insurance and workers’ compensation programs, regulates wage and hour standards through the Wage and Hour Division (WHD), and investigates violations under the FMLA.

The main legislation the DOL deals with is the Fair Labor Standards Act (FLSA) of 1938, the Occupational Safety and Health Act (OSH Act) of 1970, and the Family and Medical Leave Act (FMLA) of 1993.

Typical Cases include minimum wage and overtime pay disputes, certain whistleblower claims, workplace safety violations, and family and medical leave entitlements.

In summary, the NLRB deals with collective bargaining and unfair labor practices, The EEOC focuses on addressing employment discrimination, and The DOL handles a variety of labor issues including wage standards, workplace safety, and unemployment benefits.

These are all distinct areas of the law and can be confusing to navigate. If you’d like some help with a labor or employment dispute, If you have have been discriminated against for your sexual orientation or gender identity, contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

The Americans with Disabilities Act (ADA), first enacted in 1990, represents a landmark in civil rights legislation, aimed at prohibiting discrimination against individuals with disabilities in various areas of public life, including employment, public accommodations, transportation, and telecommunications. Its overarching goal is to ensure that people with disabilities have the same rights and opportunities as everyone else. This commitment was significantly reinforced through the ADA Amendments Act (ADAAA) of 2008, which expanded the scope and impact of the original legislation by broadening the definition of disability and making it easier for individuals to prove that they have a disability under the law.

The ADAAA was a response to a series of Supreme Court decisions that had narrowed the definition of “disability,” thereby limiting the protections available to many individuals. One critical area where the ADAAA made substantial improvements was in the definition of “major life activities,” which now includes a more comprehensive list of activities, such as reading, concentrating, and working, thus recognizing a broader range of impairments. Additionally, the ADAAA emphasized that the determination of whether an individual has a disability should not be based on whether the impairment is severe, but rather on whether it significantly limits one or more major life activities. This shift was crucial in expanding protections and ensuring that individuals who may not have severe disabilities but still face significant challenges are covered under the ADA.

Disability Discrimination by Association

In conjunction with these changes, the ADAAA also enhanced protections for individuals who are discriminated against based on their association with someone who has a disability, a concept known as “disability discrimination by association.” This provision acknowledges that discrimination can occur not only directly against individuals with disabilities but also against those who are linked to them, such as family members, caregivers, or friends. By wat of example, an employer might refuse to hire a qualified candidate because they have a family member with a disability, under the incorrect assumption that this association could result in higher insurance costs or absenteeism.

Another example is where an employer may fail to permit an employee who has children with disabilities to work remotely while allowing other similar employees to work remotely. The ADAAA’s inclusion of protections against discrimination by association serves to address these unjust biases and ensures that individuals are not penalized or discriminated against based on their relationship to someone with a disability. This facet of the ADA is important for promoting a more inclusive society, as it recognizes that the impact of disability extends beyond the individual and affects families and communities as a whole.

The principle of non-discrimination by association aligns with the broader objectives of the ADA and reflects an understanding that disabilities affect not just individuals but also their social circles. For example, if a parent is caring for a child with a disability, the parent should not face discrimination in employment or other areas simply because of their caregiving responsibilities. By extending protections to those associated with people with disabilities, the ADAAA helps to prevent indirect discrimination and ensures that all individuals are treated fairly and equitably, regardless of their familial or caregiving status. This extension of protections is particularly significant in the context of workplace policies and practices, where there can be a tendency to make assumptions or generalizations about the impact of disability on employees or their families.

Ultimately, the ADA and its amendments represent a dynamic and evolving effort to create a more just and equitable society. By addressing both direct and indirect forms of discrimination, the ADAAA builds on the foundational principles of the original ADA and continues to advance the rights and opportunities of individuals with disabilities. The ongoing commitment to interpreting and enforcing these protections in ways that reflect the lived experiences of people with disabilities and their families underscores the importance of vigilance and advocacy in the quest for full inclusion and equal treatment. As society progresses, the principles embodied in the ADA and the ADAAA will remain crucial in shaping a world where everyone, regardless of disability or association, can participate fully and equally in all aspects of life. For additional guidance on disability discrimination by association under the ADA, please click here.

#ADA #Disability #EmploymentDiscrimination

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