Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: Despite the fact that we have all grown up with the ideal that everyone should get their day in court, the sad reality is that fewer and fewer cases are going to trial. In large part this is because the rise of motions for summary judgment and other dispositive motions. 

There are few ideas that are as cornerstone to our legal system than one’s ability to get their day in court. Despite this notion, the ability of a plaintiff to get their day in court is becoming rarer and rarer each year. By way of example, according to an American Bar Association study only about 0.8 percent of cases were decided by a jury trial in 2013. By now that number may very well by lower. 

 While the study outlined various theories of why this may be the case, one of the biggest obstacles outlined in the study was the tendency of cases to be disposed by a dispositive motion. In fact, the study stated that motions for summary judgment alone, one of the various types of dispositive motions, are the procedural vehicle that dispose of about 20 percent of cases filed in federal court. That is why I would like to focus on motions of summary judgment for the purposes of this blog.

Broadly speaking, a motion for summary judgment is a party asking a judge to get rid of a case because no reasonable jury could find in the favor of the other party. At this phase of the inquiry, the judge is not allowed to weigh the evidence. In fact, in reviewing entry of summary judgment, the judge considers the evidence presented in the motion and response in the light most favorable to the party resisting the motion. Moreover, the judge must credit evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. In short, the judge must take as true all evidence favorable to the party resisting the motion for summary judgment.

While someone reading the above cited standard would think that these types of motions are rarely granted, the numbers do not lie. The fact of the matter is that these motions are growing in popularity and are being filed more and more by defendants in employment cases. As such, they are an incredible danger to getting your day in court.

In order to best protect your case from these types of motions there are steps you can take. The first is simple. Act fast. Many of the deadlines that are the subject of motions for summary judgment such as statutes of limitations are rather short. That is why if you believe you have a case, you should contact an attorney as soon as you can. Second, gather all the documents that you believe may be helpful for your case so that you are able to help your attorney put their best foot forward. Third, it is imperative to seek out an attorney that specializes in labor and employment law. This is because each type of law has its own type of quirks that can change what is the best way to approach matters. Probably, the best way one can see how important this small step is, is by taking note who employers are retaining to represent them in employment disputes. In large part, employers are retaining attorneys that specialize in labor and employment law. 

 Here, at Wiley Walsh, P.C. we specialize in labor and employment law. More importantly, we only represent workers. We are the type of law firm with the knowledge and skills to be a zealous advocate so that you won’t become part of a statistic. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that this type of cases demand. Feel free to contact us for a consultation. 

 

 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When workers are considering employment, they often take into consideration the benefits and perks of a job. Whether these perks are big or small, they add value to one’s employment. They even influence one’s quality of life outside of work. Some employees may take things for granted, not realizing that a benefit that they enjoy is really a perk freely given by the employer. They may mistakenly think that a perk is protected by some law when it is in fact not. 

During the holiday season a perk that some employees enjoy is overtime (bonus) pay when they work on the holidays. A perk that other employees may enjoy might be paid holidays off. Yes, these are most assuredly perks, as the law does not require that employers provide either of these benefits to their employees.

I remember my first job and working through the holidays, including Thanksgiving and Christmas Eve. My manager would always ask if there were volunteers for holidays. There were always volunteers. Double time-and-a-half was good motivation. This was even better than the typical overtime pay! However, workers should know that this was not required. 

Overtime pay on holidays is not required unless those additional hours place a non-exempt employee (employees entitled to overtime pay under the Fair Labor Standards Act) at more than 40 hours in a workweek. But, as a general rule, employees should know that there are no Texas laws or federal laws that require that employees receive overtime or any other special pay merely for working on a holiday. Yes, an employer can require that their employees work on Thanksgiving or Christmas Eve at their regular hourly rate.    

Similar to the lack of any requirement that an employer provide additional pay for working on holidays, there is nothing in Texas or federal laws that requires an employer pay employees for time off given on the holidays. For a non-exempt, hourly employee, this means that an employer can give an employee the holiday off, or even be closed on Thanksgiving, depriving the employee of a workday, and there is nothing in the law that requires the employer to pay the employee for that holiday. 

For exempt, salaried employees, the rules are different, but they too require an understanding of the law. Exempt employees must be paid their full weekly salary if they worked any hours during the holiday week when their employer has made the choice to close for the holiday (e.g., Thanksgiving).  However, there is nothing in the law that even requires an employer to observe any holidays. So, if the employer is open for business and requires that exempt employees work, they are required to work. This also means that an exempt employee, depending on the nature of their work, may be required to work more than 40 hours in a workweek during the holidays with no additional compensation. 

There are very few laws that provide protections and benefits for employees. However, there are employers out there willing to provide additional compensation to those employees sacrificing time with family or loved ones to work on the holidays, and other employers that are able to provide paid holidays off due to the nature of their business operations. Employees should know that these employers do so without legal obligation. Nonetheless, if you are an exempt employee being docked pay when your employer closes for the holidays, or a non-exempt employee working more than 40 hours per week without receiving overtime pay during the holiday season, our employment lawyers are available for consultation. Happy holidays and thank you to all the employers that try to do more for their employees during the holiday season than what is required by law.   

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

X, a dedicated and hard worker, asks her boss for a raise. X, on more than one occasion, has boasted of never taking paid time off, of working overtime, and of winning several accolades. X, for all intents and purposes, has earned this. X confidently struts into her boss’s well-kept office, warmly greets her, and assertively (but also politely) asks her for a raise. Her smile fading, X’s boss strategically dodges X’s question and only offers to “touch base” with her about it soon. The next day, X receives a delicately worded email from the company’s Human Resources representative, expressing, in no uncertain terms, that X is fired.

Let us now turn our attention to Y. Y’s colleagues would not describe him as zealous, dutiful, or even necessary, but only as sufficient for the company and its operations. Y has lived contentedly in mediocrity and has no intention of leaving its bounds anytime soon. However, during one of his rare productive spells, Y overhears a co-worker make a racist statement. Y, mustering the remains of his productivity, reports it to his manager. The next day, Y receives a similarly delicately worded letter from HR informing him of his termination.

There is no question that both X and Y experienced retaliation. However, only one of the unfortunate workers experienced illegal retaliation. Y, the half-hearted employee, is the individual worthy of legal protections because Y explicitly engaged in protected activity. Protected activities are actions employees may engage in without fear of retaliation from supervisors or managers. Y’s protected activity was his complaint of race discrimination because it involved a protected characteristic (viz., race). Race, sex, disability, and age are all protected characteristics that cannot be subjected to discrimination. X’s complaint involved no protected activity; it did not mention a protected characteristic nor did it mention a hazardous work environment in any discernable way. X wanted a raise, while Y needed protection.

The employer, in a sense, is the master of their own corporate universe. The employer gets to decide how their office is run, who works there, how policies are set up, how investigations are handled, how employees are treated, who employees work with, and what they pay you, among very many other things. By signing your employment agreement, you are willingly entering into that universe and becoming a denizen of it, meaning that you must abide by the rules and procedures that are set in place; corporate policy becomes your stone tablet. And though the employer is the lord of this paper-filled, fluorescent-lit kingdom, there are still shackles in place. Namely, the employer must abide by the law and provide protections against unlawful discrimination, unlawful retaliation, and unlawful workplace hazards. The rest, for better or for worse, is fair game to the employer. 

Annoyances at the workplace are common and often find a way to slither under our skin. However, the law is not a remedy to treat annoyances. Rather, it is a barrier to protect against unlawful discrimination and retaliation. Once that barrier is breached, it is the duty of the attorney to not only repair it, but ensure that those who shattered it are held accountable to the fullest extent. It is important to recognize the distinction between a want and a need because the former is typically outside of the realm of the illegal. One may not want to work with the noisome colleague nor want a small office nor want to be subjected to gossip, but, in entering into a new workplace, one always faces (and should expect) the risk that they may be subjected to such annoyances. On the other hand, one needs protection from discrimination and needs accommodations for a disability and needs to be safe in the workplace, and there is no employment agreement in the county that can provide otherwise. If you find yourself in such a situation where you cannot determine whether your issue is a need or a want, then it would be wise to consult with an attorney and see what, if any, options you may have. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

The 88th Regular Session of the Texas Legislature convenes on January 10, 2023 and lasts until May 29, 2023.  This coming Monday, November 14, is the first day that legislators can file bills.  I hope that this session, Texas finally fixes the Texas Whistleblower Act to actually provide the protection it promises.  It is a steep order as bills to amend the Whistleblower Act failed to pass during the two prior sessions.  In fact, during the 86th regular session, I even testified in front of a committee as an expert about why the changes to the Act were and are necessary.

So what is the main problem with the Texas Whistleblower Act?  It is too restrictive in terms of what reports qualify as protected activity.  Here is the text of the statute:

Sec. 554.002.  RETALIATION PROHIBITED FOR REPORTING VIOLATION OF LAW.  (a)  A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.

(b)  In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:

(1)  regulate under or enforce the law alleged to be violated in the report;  or

(2)  investigate or prosecute a violation of criminal law.

    The bolded phrase above is what makes the Texas Whistleblower Act so restrictive and Texas courts have made it even more limited than the words above would seem to suggest.  Most other whistleblower statutes protect reports to an employee’s supervisor, manager, human resources, elected official, head of the agency, or an ethics office.  In most circumstances, reporting violations of law to any of those people will not be protected because they are not an appropriate law enforcement authority.  Moreover, the case law makes clear that it is not enough to report it to an agency that can regulate, enforce, investigate, or prosecute, but that the report has to be made to the actual right division.  For example, an attorney who works for the Attorney General’s Office cannot simply report a violation of law to her supervisor unless that person works in the department that would investigate the particular law that was violated.  

Moreover, agencies often have ethics or compliance offices that it encourages or even directs employees to bring complaints to.  Outrageously, these reports are almost always unprotected.  At best, these reports are ineffective, at worst, the give the whistleblower a false sense of security that allows the agency to fairly openly retaliate against the employee reporting misconduct.

There is an easy fix to this and during the past two sessions, common sense amendments have been proposed to the whistleblower act expanding the types of protected reports.  Here are the amendments that were proposed in 2021 by Representative Israel:

(a) A state or local governmental entity may not suspend or terminate the employment of, or take other adverse personnel action against, a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to:

(1) the reporting employee’s immediate supervisor, or an individual who holds a position above the reporting employee’s immediate supervisor, at the employing governmental entity;

(2) an individual or office designated by the employing governmental entity as the individual or office for reporting such grievances;

(3) a member of the human resources staff of the employing governmental entity; or

(4) an appropriate law enforcement authority

The above amendments would greatly improve the Whistleblower Act and provide the protection the Whistleblower Act promises.  I hope this next session, we finally get this done.

I know I just railed against the Whistleblower Act, but if you believe you have been retaliated against for reporting a violation of law to an appropriate law enforcement authority, then you should contact an employment attorney to discuss what rights and remedies you have.  My firm handles these types of cases all of the time.  You can book a consult at our website www.wileywalsh.com or by calling 512-271-5527. 

Harjeen Zibari Trial Attorney

You might have read news articles or watched TikToks about “job hopping” — a term used to describe the practice of switching jobs often. This is arguably currently most present in the tech industry and is now being described by many as an advantageous tactic. Folks report major increases in their salaries with every job switch, dramatically influencing their earning ability quickly. It’s an increasingly attractive concept when anecdotes are shared amongst friends and influencers detailing how they became high wage earners just a few years into their careers rather than taking a more traditional approach and “paying their dues” through many years in their chosen industry.

 Job hopping is tied largely to the Great Resignation, the phenomenon of employees re-evaluating their lives and careers after the height of the Covid-19 pandemic and leaving their jobs as a result. Attitudes about jobs born out of the Great Resignation, coupled with higher starting salaries in many sectors to incentivize hiring, have created the “perfect” storm for many job hoppers. According to a Pew Research Center analysis, 60% of workers who switched jobs from April 2021 to March 2022 enjoyed increases in earnings. 

 Employers who do not improve wages or general conditions for their employees can do little else to compete; during that same period, only 47% of those who stayed in their jobs from 2021-2022 saw a real increase in their earnings beyond inflation, if they even got inflation raises. These salary increases can be compounded with every job switch, as workers have been recognizing and asserting their value more and more in the past few years. And since many employers faced shortages in light of the Great Resignation, workers enjoyed more bargaining power than before during the 2021-2022 cycle. 

 So, a person who changes jobs several times within a span of say, two years, can work this dynamic to their advantage to get what they want out of their careers. These career gains don’t have to just be monetary. A person might be able to establish themselves as a full-time remote worker within their area of expertise who can live in a cool, decked out van and travel across the United States. A person might be able to set the expectation of unlimited paid time off because they enjoyed that at their past few jobs. And, put simply, job hopping can give the person the confidence that if they are unhappy with their current job, they will be able to secure a new one; after all, they’ve already done it before! 

 This is a shocking departure from the almost-taboo attitude about job hopping pre-pandemic. Too many frequent job changes can be seen as a red flag; employers might argue that it shows a lack of commitment, inability to get along with others, or unpredictability. It can be hard to explain frequent job changes in cover letters or job interviews. Some employers will not move forward at all with an applicant who has switched jobs too frequently. Of course, this might still be true in your own professional circle. Perception about job hopping varies from employer to employer, and from industry to industry. Plus, with layoffs and job shortages being reported nationwide, it’s unclear how long job hoppers have to ride this wave. Just this week, Meta laid off over 11,000 employees.

 And aside from professional considerations that come from job hopping, there may be legal considerations as well. Are you a contracted employee who has to stay in your role for a specified amount of time, or are you at-will like so many Texans and can leave when you choose? Are there work-product provisions in your employment agreement that a former employer might argue you violated by going to work for a competitor? Might they argue you violated company policy by preparing job application materials on your company computer, or interviewing on company time? Maybe their feelings are hurt that they’re losing you, their brightest shining star, and they’re withholding your last paycheck and you don’t know how to get it back.

 For answers to any of these questions, contact our offices in Austin or Houston to speak to one of our talented employment attorneys to see if job hopping may be a legal pitfall for you. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Early voting began on Monday, October 24, 2022, and continues until November 4, with Election Day – and the final opportunity to vote – being Tuesday, November 8. It is crucial that everyone take advantage of their opportunity to be heard. Historically, during midterm elections, voter turnout is lower than in presidential years. There are those that think, “my vote doesn’t count, so there’s no need for me to vote.” They typically have this same viewpoint during presidential elections. Then, there are others that simply think that midterm elections are not as important as those during presidential years. Both mindsets are absolutely wrong.

The government is designed to be a system of checks and balances. With every election our votes are designed to keep that system running in the manner in which it should—as a system that works for the American people.

During midterm elections, members of Congress are elected. Every two years, all 435 seats of the House of Representatives are up for grabs. With regard to the Senate, where Senators serve six-year terms, about one-third of the 100 seats are up for election. Members of Congress are our voices—at least they are supposed to be. Congress has the authority to make laws, declare war, confirm or reject many presidential appointments, and investigate the actions of public officials. With its power, Congress can have a huge impact on what our president is able to accomplish. It has the power to make laws that support the president’s plans or hinder them. Congress has the power to make laws that will be interpreted and enforced by our judiciary. As we clearly see, these individuals who make up Congress have a huge impact on how our government functions and is arguably the most powerful branch of the government. Congress is given its great power because it is intended to speak for us, the American people.  

When people fail to vote, Congress still speaks, but we may find that they are only speaking for those voters that are most powerful. The voters with power are the ones that consistently go to the polls and with their votes are deciding if these elected officials stay or if they go. Americans must take this power and there is only one way to do so: by going to the polls and voting.  

In addition to electing members of Congress, there are many state and local offices on the ballots. State and local officials are the ones that make the decisions that are closest to home. Where the federal government’s power end, the power of state and local governments begins.  Are lawmakers in your home state making decisions that help with gun control?  Are state and county judges fair, impartial, and properly interpreting the law? Is the school board making the best decisions for your children?  

All of the decisions of our elected officials, whether on the federal, state, or local level, have a huge impact on how we are able to live our lives. So, the questions you must ask yourself are: How do I want to live my life? Whose ideas and beliefs are more in line with the choices that I want to have control over? Whose ideas and beliefs are more in line with what is best for me, my family, and my city, state, and country? 

If you are concerned about inflation and the cost of living, it is time to vote. If you care about gun safety and gun control, it is time to vote. If you care about protections for women and a woman’s right to choose, it is time to vote. If you care about your vote, believe in democracy, and don’t want your choices stolen by those who don’t want to accept the legitimacy of an election result, it is time to vote. If you care about the Astros winning the World Series, it is time to vote.  Just checking to see if you were paying attention.  

With each election, we as American people have something at stake. In recent years, even in recent months, we have seen why our votes matter. Now is the time. Really, every time is the time. We have to be consistent to gain the power in our government that we deserve. The results will not always turn out the way we desire, but consistency may make out elected officials work harder to give us what we deserve—a government that works together for the majority. In these elections, there is no electoral college at play. The popular vote wins. EVERY VOTE COUNTS. NOW, GET OUT THERE!

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

We often think of a fair trial in terms of having an impartial judge and jury, effective assistance of counsel, the opportunity to present evidence and witnesses, and the ability to cross-examine the adversary’s witnesses and present rebuttal evidence.  However, trials are much more complicated than the general expectations. 

Fair trials don’t just happen. Judges and attorneys exercise great care to ensure fairness in trials. In civil cases, attorneys engage in what we call the discovery process to gather evidence relevant to each individual case. Behind the scenes attorneys file pre-trial motions that judges must rule on before a trial. Those motions may be to exclude, include, or limit pieces of evidence or testimony. Attorneys and judges work on the jury charge that will be read to the jury at the close of all evidence. In other words, they work on the instructions that will be provided to jurors before they deliberate to ensure that they render a verdict based on evidence presented in court and the applicable law.  

There are a number of things that happen before a case is finally handed over to a jury. This is all just to say, that the things we generally expect to ensure a fair trial are not automatic.  

Ensuring a fair trial can be more difficult when a party or key witness suffers from an intellectual disability because they have difficulty thinking or communicating. It may also take them longer to speak or process information. This can make presenting information, whether at a deposition or during trial, more challenging.  But, it is important to remember that individuals with intellectual disabilities are entitled to the same justice system, and JUSTICE, as those suffer from physical disabilities or no disabilities at all.

When an intellectual disability creates difficulty for a client when testifying, it is crucial that the employee’s attorney take great care in preparing for their client’s testimony.  This includes preparing the client for not only direct examination, but also cross examination.  

Despite the care an attorney may exercise in talking to their client and communicating with them on a day-to-day basis. Those communications are nothing like the stress and pressure created by a deposition or trial.  This is particularly true, when the opposing side may not exercise the same care when cross examining your client or may even attempt to use the employee’s known disabilities to their advantage by attempting to confuse them or in some other way make the jury question the credibility of their testimony.  

Therefore, the employee’s attorney may need extensive preparation for not only for their client, but also themselves. This preparation may include finding and utilizing valuable resources to best prepare the attorney and the client. Preparation may require consultation and sessions with an expert. It may also require practice under simulated trial circumstances. It is important to learn the way your client should be addressed, what questions he or she should and should not be asked, and how to best frame questions for maximum comprehension. Aside from finding the right assistance, the attorney must be patient. This is as equally true when sitting with the client in the office as it is when questioning them as a witness in court.  

If you or someone you know suffers from an intellectual disability, and have faced discrimination or retaliation at work, our attorneys are available for consultation. Having the courage to fight for your rights will be stressful, but when employees are brave enough to do so, they need to know that they have a team that is supportive and on their side.  

Julie St. John
Texas Employment Lawyer Julie St. John

As an employment lawyer who represents workers, the changing dynamics in the workplace, especially corporate America, are simply fascinating to me. You’ve probably heard about the “Great Resignation” and perhaps about the growth of unionization campaigns at places like Starbucks, Amazon, and Apple. Now there is a new trend, “quiet quitting.” And although I take some issue with the term as it seems to have somewhat of a negative connotation to it, the concept may be the next wave in the movement to bring about substantive change to workplace culture. 

So, first off, quiet quitting does not involve actually quitting your job. Quiet quitting is not the employment equivalent of the Irish goodbye. Workers who are quiet quitting are continuing to work. In fact, they are at least theoretically continuing to do a good job at their jobs. Quiet quitting isn’t about being lazy or unmotivated, it is about setting appropriate boundaries in employment relationships—relationships that for far too long have had an unfair imbalance of power in favor of employers. 

Now, workers are looking to take back some of that power back and prioritizing their personal lives, mental health, and overall well-being. Workers who are quiet quitting are doing so by working reasonable hours, not reading or responding to emails or calls after they’ve logged off for the day or left the office, refusing to take on tasks that they will not be able to complete without sacrificing their evenings or weekends to do so, taking vacations, etc. They are standing up against the hustle culture mentality. 

The question that remains is how employers will respond to workers who are setting reasonable boundaries. We all know the key to a happy relationship is setting and respecting boundaries. But will employers respect the boundaries workers are setting? Also, are they required to by law? 

The law that certainly comes into play when thinking about the concept of quiet quitting is the Fair Labor Standards Act, the FLSA. The FLSA requires employers to pay minimum wage and overtime for most non-exempt employees. But these protections only apply to non-exempt employees. This can lead to employers attempting to get around the requirements of the FLSA by classifying employees as exempt. However, such a classification is not always proper (i.e. not all employees can be exempt). 

To be properly classified as exempt, an employee must fall under a specific FLSA exemption based on their job duties and be paid on a salary basis. If your job doesn’t meet the duties under one of the specific exemptions from the FLSA, then you cannot be properly classified as exempt regardless of whether your employer pays you on a salary basis. Similarly, even if your job duties would qualify you to be exempt, you’re entitled to overtime pay if your employer fails to pay you a guaranteed salary. 

Unfortunately, if you are properly classified as exempt under the FLSA, there may not be as many protections for quiet quitting as you would have hoped . . . at least not in Texas. However, every case is unique. 

If you feel like your employer has violated the FLSA by misclassifying you or failing to pay you overtime, contact an employment attorney right away to make sure you understand your rights and have the best chance of recovering what money you may be entitled to. Or, if you simply feel you are overworked and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. If you want to attempt to make change in your workplace, there may be ways to go about it that will help protect you. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Most people, including defense attorneys, think that actionable retaliation can only occur if the employer fires the employee for engaging protected activity or demotes them or cuts their pay.  In other words, these people think that it must be an ultimate employment action.  But that is simply not the case.  It used to be, but as the War Doctor said in the Doctor Who 50th Anniversary Special, “no more!”

So what is the standard?  The standard is that for purposes of retaliation, all a plaintiff must show is an action that is “materially adverse.”  That standard came from the 2006 Supreme Court case  Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. 53 (2006).  Again, as indicated above, that was a change from what several Circuit courts had been doing, which is requiring an ultimate adverse action.  As defined by the Supreme Court, a “materially adverse action” is much broader than an ultimate action.  Specifically, an employment action is materially adverse is any action that “would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Supreme Court even provided examples of the kinds of actions that could in the proper context be “materially adverse.”  Specifically, the Supreme Court said that under certain circumstances, something as small as being excluded from business lunches or a schedule change could meet that standard.  The Supreme Court stressed that “context matters” and that whether something is significant will depend on the particulars of that case.

The other great thing about the above standard is that it basically applies to all retaliation statutes regardless of whether the underlying protected activity is unlawful discrimination, wage complaints, or fraud.

Regarding reprimands, the Fifth Circuit has described generally when such things rise to the above “materially adverse” standard.  A reprimand is actionable retaliatory conduct if it results in consequences such as changes to compensation, job duties, raises, promotions, bonuses, or job title.  So, for example, if the reprimand that you received prevents you from being considered for a merit increase or able to be promoted to a new position, then it is an actionable adverse action for a retaliation claim.  And that makes sense to me.  The whole purpose of the anti-retaliation provisions is to encourage reporting of potentially unlawful conduct.  If you thought that you might not be considered for promotion or a bonus or a raise, then you might not report discrimination that you felt you were experiencing or that saw other experience.  

Regarding transfers to other positions, the Fifth Circuit has similarly described when such things meet the “materially adverse” standard.  Essentially, a transfer is considered a materially adverse action if it is the equivalent of a demotion with one key difference: the transfer does not have to affect the employees pay.  Here is what the Fifth Circuit has said about that:  (“[T]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.”  Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007).  Again, this makes sense to me.  Otherwise, there would be this huge loophole for employers to pretty openly retaliate against individuals as long as the company did not cut the pay or title of an employee.  To use an extreme example, imagine a senior vice president reported sexual harassment by the company president.  The president then responds by changing the SVP’s job duties to include only sorting mail.  Every other SVP at that company would probably now think twice before reporting other unlawful conduct that they experienced or witnessed.    

If you think you have been retaliated against for reporting unlawful conduct, you should consider talking to an employment lawyer like those at Wiley Walsh, P.C. or Wiley Wheeler, P.C.  We have experience in handling these types of matters and would be more than happy to discuss any potential avenues you might have.    

       

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Removing and remanding a case to and fro state court is a rather straightforward process. Yet, there still exists a variety of procedural quirks and often unused processes that can make this a daunting task. In this blog I would like to present a very basic outline of that process.

When the time comes to file a lawsuit choosing where to file is a decision of pivotal importance. Where the case is filed can substantially influence the outcome of case. Depending on the nature of the claims involved it maybe to one’s advantage to keep a case in state court if possible. This is because many of the procedural mechanisms that would allow a defendant to seek dismissal of a case are not as readily available in state court. Yet, keeping a case in state court can be a challenge in an of itself. In this blog I would like to discuss a bit about the process of removing a case from state court to federal court, and how to try and get it back to state court. 

 First, in federal court there are two main ways in which a court can have the jurisdiction to hear a case. The first is if the case presents a question of federal law. In other words, does it involve a federal law or claim. The second is if the court has diversity jurisdiction. For this to exists the amount in controversy needs to exceed over $75,000 and each of the plaintiff’s citizenship must be diverse from each of the defendant’s citizenship. If either of these scenarios exists, then a case may be removed from state court to federal court provided that the motion seeking such relief is brought within 30 days of when the defendants were served.

 Once a defendant has sought to remove a case from state court to federal court, then the case is automatically transferred for further proceedings in the federal court. At that point, if the plaintiff wants to move for the case to be remanded back to state court, they must do so within 30 days if they are arguing that the removal contained a procedural deficiency. A failure to do so will most likely result in the court holding that the procedural deficiency was waived by the plaintiff. But, if the plaintiff is arguing that the court did not have subject matter jurisdiction to hear the case, then it may file the motion so long as a final judgment has not been rendered. 

 For example, let’s say that a plaintiff sued three separate defendants. Two of the defendants and the plaintiff were citizens of Texas, and the third defendant was a citizen of another state. If the third defendant were to remove the case on the basis of diversity jurisdiction it would ultimately fail because complete diversity is not present among the parties. Nonetheless, the plaintiff would need to draft and file a motion to remand with the court outlining that the court lacks the jurisdiction to hear the matter. Since the motion to remand would not be based on a procedural ground it would not necessarily be subject to the 30-day time limit, but it would still be advisable to file the motion as soon as possible. 

 This, though, is a very clear-cut example. Often times determining the citizenship of companies and dealing with procedural quirks can make this a unique experience for most lawyers. That is why a thorough analysis of the statutory language, case law, and the facts at hand are a necessity.

 While the above is a very basic outline of the removal procedure, this is an area of the law that can times present unique issues that require thoughtful and precise action. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. We can provide you with the legal experience that your case deserves.