Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

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

 What Constitutes a Mass Layoff?

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

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

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

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

Key Requirements Under the WARN Act

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

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

   – Information on any available assistance or benefits.

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

2. Exceptions to the Notice Requirement:

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

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

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

3. Penalties for Non-Compliance:

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

What Should Affected Employees Do?

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

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

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

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

Conclusion

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

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

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Introduction

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

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

Texas Occupations Code § 301.4025(b) provides:

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

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

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

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

Key Takeaways

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

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

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

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

Challenges and Considerations

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

Conclusion

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

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

This past week, the Equal Remedies Act of 2024 was introduced by Representatives Suzanne Bonamici (D-OR), Robert “Bobby” Scott (D-VA), and Senator Edward Markey (D-MA). The Act is an effort to end injustice. 

In 1991, lawmakers put in place caps on the damages employees can be awarded after being the victims of unlawful discrimination and harassment in the workplace.  Lawmakers decided that no matter how blatant the discrimination, how egregious the harassment, how unresponsive the employer might be when complaints are made, an employee’s recovery for compensatory and punitive damages under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act would be severely limited. Today, over 30 years later, those arbitrary caps still apply. 

Lawmakers took power away from jurors and decided: if an employer has 100 or fewer employees, a plaintiff’s recovery for compensatory and punitive damages is limited to $50,000; if an employer has between 101 and 200 employees, a plaintiff’s recovery for those damages is limited to $100,000; if the employer has between 201 and 500 employees, the recovery is limited to $200,000; and for all employers with more than 500 employees (no matter how large), the recovery is limited to $300,000. This means that if a jury hears evidence in a case and thinks that the injuries and emotional distress experienced by the employee so severe, and the employer’s disregard for the law so appalling, to warrant a $500,000 or $1,000,000 verdict for compensatory or punitive damages, that award will be cut down. At most the employee could be awarded $300,000 for these damages, but worse yet it could be cut down to $50,000. This is regardless of how the jury viewed and valued the evidence in the case.

Some may argue that the caps prevent excessive financial burden on defendants. They may argue that caps maintain a balance between providing relief for plaintiffs and avoiding bankrupting employers found liable for discrimination. However, the truth is damages caps are aimed at protecting big business at the cost of the employees. They hinder justice and do nothing to deter unlawful discrimination. The law is currently written for the benefit of big business, even when big business fails to care about the employees that make them a success.

Under Title VII, a smart and capable woman could be sexually harassed and humiliated day in and day out, she could make repeated complaints to managers and owners that are completely ignored, and these limits apply. An employee could be mocked for their religion or demoted or terminated because of their sexual orientation, and these limits would apply.  A dedicated, 30-year employee could suddenly find they have a disabling condition requiring accommodations, which results in name calling and refusals by upper management to provide wholly reasonable accommodations in order to force this long-term employee out, still these limits would apply. Even if a plaintiff is able to prove their severe emotional distress, an employer’s failure to address complaints, or an employer’s pattern of allowing these types of unlawful harassment and discrimination to persist in the workplace, these limits apply.  

Discrimination suits serve as a crucial mechanism for justice. Yet, caps on damages undermine justice for the victims of unlawful discrimination and harassment. Limiting damages arbitrarily trivializes the harm caused by employers that deliberately and maliciously fail to follow the law.  Caps on damages allow for a legal system that fails to address systemic issues of unlawful discrimination and perpetuates inequality in the workplace. 

The Equal Remedies Act of 2024 is proposed to eliminate these arbitrary damages and amend the Age Discrimination in Employment Act so that the victims of age discrimination have access to the same damages as victims of other forms of discrimination.  The Act will give jurors the power to decide the value of the damages sustained by the victims of unlawful discrimination when they hear the evidence in court. 

Reach out to your senators and representatives and let them know how important this legislation is to you, the everyday hard working people that might be the victims of discrimination.  You could be a woman in a male dominated profession.  You could be someone prevented from exercising your religion. You could be an employee told not to bring your same-sex spouse to the company event. You could be an older employee that has dedicated 30 years to a company and now management thinks you’re too old to learn new things.  

If you have been the victim of unlawful discrimination or harassment, contact us. We have attorneys available for consultation to hear your story, advise you on the law and your rights, and where the law does provide protection, give you a plan of action. 

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

In light of the recently released Equal Employment Opportunity Commission (EEOC) guidance on harassment, Texas employers should think rethink how to design and make modifications to the workplace. With the protection of employees at the forefront, this new guidance outlines over 70 examples of unlawful harassment. It also encompasses new legally protected characteristics. By way of example, the EEOC has expanded its enforcement guidelines to explicitly prohibit harassment based on LGBTQ+ status, lactation, pregnancy, and pregnancy-related conditions. The guidance even covers intraclass harassment which is harassment based on a protected characteristic from a member of the same protected class as the aggrieved.

With respect to the evaluation of whether harassment violates federal law, the guidance focuses on three components: 1) whether the harassing conduct was based on a legally protected characteristic, 2) whether the harassing conduct constitutes or results in discrimination with respect to a term, condition, or privilege of employment, and 3) whether there is a basis for holding the employer liable for the discriminatory conduct. 

Harassment is a form of discrimination which is a violation of both federal and state law. Specifically, harassment is unwelcome conduct premised upon race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, older age beginning at 40, disability, or genetic information. Harassment becomes unlawful where the offensive conduct is so severe and pervasive enough to create a hostile work environment or the harassment involves a change to the terms, conditions, or privileges of the employee.

Additional examples provided by the EEOC that may rise to the level of actionable harassment includes, threatening or intimidating a person due to the person’s religious beliefs or lack of religious beliefs; sharing pornography or sexually demeaning depictions of people, including those generated by artificial intelligence; mimicking a person’s disability; making comments based on stereotypes about older workers; making sexualized gestures or comments, even when the behavior is not motivated by a desire to have sex with the victim; and forwarding an offensive or derogatory “joke” email. An exhaustive list of the examples can be found here.

Moreover, the EEOC guidance emphasizes the role of leadership in setting the tone for a harassment-free workplace. Senior leaders are encouraged to publicly condemn harassment, lead by example, and prioritize diversity, equity, and inclusion in all aspects of organizational decision-making. By fostering a culture of respect and inclusivity from the top down, leaders can help create workplaces where harassment is less likely to occur at the expense of their employees.

The guidance goes on to provide practical tips and best practices for employers to implement effective anti-harassment policies and procedures. This includes conducting regular training sessions for employees and managers, updating harassment policies to reflect current legal standards and best practices, and promoting diversity and inclusion initiatives that foster a culture of respect and belonging for all employees. As expressed by the EEOC, it is the employer’s responsibility to prevent harassment of their employees not only by supervisors and coworkers, but also by customers, clients, vendors, and the like.

Furthermore, the EEOC guidance highlights the importance of fostering a supportive environment for victims of harassment. Employers are urged to provide resources and support to employees who come forward with complaints, including access to counseling services, legal assistance, and other forms of support. By demonstrating empathy and support for victims, employers can help empower them to speak out against harassment and seek justice.

In conclusion, the new EEOC guidance on workplace harassment represents a significant step forward in the ongoing effort to create safe, respectful, and inclusive workplaces for all employees. By emphasizing the importance of proactive prevention, bystander intervention, thorough investigations, and victim support, the guidance provides employers with valuable tools and strategies for addressing and preventing harassment in the workplace. Ultimately, by working together to create cultures of respect and accountability, employers can help ensure that all employees can work free from harassment and discrimination.

While not the law, this newly robust guidance is a comprehensive guide which sets forth modern examples of harassment in the workplace. Give our office a call if you find yourself subject to harassment. We are committed advocates to employees’ rights.  https://www.wiley-wheeler.com/.

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

In the legal realm, there are various procedures and outcomes that can unfold during the course of a case. One such outcome, is a default judgment. When one party fails to respond or participate in legal proceedings, it can trigger a series of events leading to a default judgment. Let’s delve into what happens during a default judgment and its implications for both parties involved.

First, a default judgment occurs when a defendant in a civil case like a discrimination case fails to respond to a plaintiff’s complaint or petition within the specified time frame or fails to appear in court when required. Essentially, it means that the defendant has defaulted on their obligation to defend themselves or participate in the legal process.

A default judgment does not happen in a vacuum, there are specific events that must happen before this type of judgment is rendered. The Plaintiff has to file an initial complaint or petition against the Defendant named in the lawsuit. The lawsuit is then served to the Defendant, sometimes with a summons, which puts them on notice that there is a legal action against them and lays out a timeframe in which a response must be made. In Texas, the Defendant has until the 10:00 Am on the Monday, 20 days after service is received. If that set deadline passes, and Defendant fails to respond, then the Plaintiff can move to get a default judgment from the court. Part of what a Plaintiff has to show the court to support its motion for default judgment varies according to the state rules, but in Texas part of the evidence to support the motion has to be proof that the Defendant was served correctly. The court can also hold a hearing to determine if service was done correctly. After Plaintiff shows that the service was done correctly, then a hearing is set so the Plaintiff can have an opportunity to support the damages they are seeking. The court will review this evidence and if Plaintiff is successful grant the default judgment in their favor. 

Default judgment happens occasionally, but at any point before the judge signs the order on the default judgment, a Defendant may respond and the default judgment can no longer be entered. Defendants may also have grounds to set aside a default judgment. This typically involves demonstrating to the court that there was a valid reason for their failure to respond, such as excusable neglect, mistake, or lack of proper service of the summons and complaint.

The whole process has implications for each party regardless of the outcome. For the Plaintiff, a default judgment signifies a victory in the case without having to go through a full trial. It allows them to obtain a judgment in their favor relatively quickly, without the need for further litigation. Depending on the nature of the case, the relief sought, and the evidence Plaintiff has in support, the Plaintiff may be awarded monetary damages, injunctive relief, or other remedies as determined by the court. For the Defendant, a default judgment can have serious consequences. It means they lose the case without having the opportunity to present their side of the story or defend themselves in court. The defendant may be subject to the enforcement of the judgment, which could include paying damages or complying with other orders issued by the court.

In conclusion, default judgments serve as a reminder of the importance of timely response and active participation in legal proceedings. They underscore the significance of due process and the rights of all parties involved in a case. While they can provide a swift resolution for plaintiffs, they also highlight the potential consequences of non-response for defendants. Understanding the implications of default judgments is essential for anyone navigating the legal landscape. If you need help navigating this issue or others, please do not hesitate to reach out to our office to schedule a consultation.

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

As a plaintiff’s employment attorney, I have seen firsthand the frustrating
impact that non-compete agreements can have on employees. These
agreements often place significant restrictions on employees’ ability to
move freely in their careers and can limit their opportunities for growth
and advancement. The Federal Trade Commission’s (FTC) recent
announcement on a final rule banning non-compete agreements,
therefore, represents a significant step forward for employees in Texas
and across the country.
Understanding Non-Compete Agreements
Non-compete agreements are contracts that restrict employees from
working in certain industries, for specific companies, or within a
particular geographic area after leaving a job. Employers argue that
these agreements protect their business interests, such as trade secrets
and confidential information. However, these agreements can also stifle
employees’ career progression and limit their ability to earn a living.
The typical non-compete agreement prohibits an employee from
working in the same field as their previous employer for a set period,
often ranging from six months to two years. These agreements may
also define specific geographic boundaries where the employee is
prohibited from seeking employment with a competitor.
The FTC’s Final Rule on Non-Compete Agreements
The FTC’s final rule on non-compete agreements bans employers from
entering into, enforcing, or threatening to enforce non-compete clauses
with their workers. This rule extends to employees at all levels, from
hourly workers to senior executives, with very limited exceptions. The
FTC’s rule is designed to promote competition and provide greater
flexibility for workers to pursue opportunities that align with their skills
and career goals.
The rule aims to increase job mobility for employees and encourage a
fair and competitive job market. By eliminating non-compete
agreements, workers can switch jobs more freely, taking advantage of

better career opportunities without fear of litigation from a former
employer.
Significantly, the Rule is not scheduled to take effect until September 4,

  1. This date may be delayed or changed as legal challenges to the
    Rule are filed with Courts.
    What the Rule Means for Texas Employees
    For employees in Texas, the FTC’s final rule is a significant victory. It

means that workers will no longer be held back by restrictive non-
compete agreements that limit their ability to pursue better job

opportunities. Instead, they can freely seek new employment
opportunities without fear of legal repercussions.
The rule is expected to have a positive impact on wages and job
satisfaction for Texas workers. By enabling employees to seek new jobs
more easily, businesses will freely compete for talent by offering higher
wages and better working conditions.
The rule also levels the playing field for small businesses and startups
in Texas. By removing non-compete clauses, smaller companies will be
better able to compete with larger corporations for talent. This could
lead to increased innovation and economic growth in the state.
Navigating the Legal Landscape
While the FTC’s rule provides a clear directive, employers and
employees should be aware that the rule may face legal challenges and
interpretation in courts. In fact, a trade group has already challenged the
Rule in Court, and that lawsuit is expected by many to be appealed all
the way to the Supreme Court for a final decision on whether the ban

will stay in effect or not. Texas courts have traditionally enforced non-
compete agreements more readily than other states, which could lead to

potential conflicts with the FTC’s rule.
Employees should stay informed about the latest legal developments
related to non-compete agreements. In the meantime, it is crucial for
employees to seek legal advice to navigate this evolving legal
landscape and understand how the FTC’s rule may affect their specific
situation. If you have been asked to sign a non-compete agreement,

previously signed a non-compete agreement, or are being threatened
by an employer regarding a non-compete agreement, reach out to us
here, and we help you use the FTC’s new Rule to navigate your
situation.
Conclusion
The FTC’s final rule on non-compete agreements is a significant step
forward for employees in Texas. It empowers workers to pursue new
opportunities and promotes competition in the state’s economy. As a
plaintiff’s employment attorney, I believe this rule will lead to a more
dynamic and equitable workforce in Texas, benefiting both employees
and businesses alike. Reach out to us here for legal advice on how to
best use the FTC’s new Rule to navigate your situation.
This post is intended to provide general information only and should not be taken as legal advice. If you are facing a situation involving non-compete agreements or other employment issues, seek out a qualified attorney to address your specific situation.

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Seasonal and temporary employment are quite common. Once the season or the assignment ends, however, a seasonal or temporary employee might wonder: am I eligible for unemployment until I can find my next job?

In Texas, like in many other states, the rules governing unemployment benefits for seasonal and temporary employees can be complex and may vary based on several factors. This warrants a closer look into the specifics to understand whether such employees might qualify for Texas unemployment benefits.

What is Seasonal Employment?

Seasonal employment typically involves work that occurs during specific times of the year due to factors like weather, holidays, or industry demand. Examples include lifeguards during the summer, retail workers during the holiday season, and agricultural farm workers during harvest times.

What is Temporary Employment?

The Texas Workforce Commission defines “temporary firm” as a firm that offers client companies the services of its employees who possess certain skills sought after by the client company.

Client companies may seek “temp” workers for when they have peak demand seasons, staffing shortages, or personnel who are on extended leave for vacations, pregnancies, or illnesses, etc. Client companies are able to get coverage without needing to hire a temp worker indefinitely.

The temporary firm itself manages things like the worker’s hiring, firing, paychecks, payroll taxes, unemployment insurance contributions, and social security.

 Eligibility Criteria in Texas

In Texas, eligibility for unemployment benefits, including for seasonal and temporary employees, is determined based on multiple factors, including work history, earnings, and the reason for job separation.

To qualify for unemployment benefits, an individual should meet at least the following criteria:

·      One should have earned a certain amount of past wages in what is known as the “base period,” which is typically the first four of the last five completed calendar quarters before the claim is filed.

·      One should also be unemployed through no fault of their own or working fewer hours through no fault of their own.

o   Examples may include layoffs, company closures, reductions in hours or workforce, or resigning with good cause related to work (though this last one may pose difficulty for workers).

·      One must actively search for new employment and able to work.

·      For temporary workers specifically, workers must contact the temp agency no later than the next business day after one has completed an assignment.

·      Temporary workers must then allow the temp agency three business days after the last assignment has ended to offer a new temp assignment before the temp worker can apply for benefits.

Obstacles for Seasonal or Temporary Workers

Seasonal employees in Texas may face difficulty in meeting the eligibility criteria for unemployment benefits due to the nature of their employment. Since this kind of work is inherently temporary, they may not have sufficient wages in their base period to qualify for benefits.

The Texas Workforce Commission has a Benefits Estimator to envision what your benefits may look like. However, this calculator does not definitively provide information on eligibility. The TWC also has a Benefits Tutorial for when you are ready to apply.

Conclusion

Navigating unemployment benefits as a seasonal or temporary employee in Texas can pose some unique challenges. However, being a temporary worker does not, in itself, disqualify someone from obtaining unemployment. As long as one is able to fulfill the normal eligibility requirements, one should be able to obtain unemployment benefits as well.

Staying informed about changes in unemployment laws and other benefits may provide alternate or additional avenues for relief. The Covid-19 pandemic, for example, engendered previously unprecedented relief for workers. Keeping abreast of updates may allow for added support when you need it most.

Finally, if you need a legal professional’s help for further questions, please contact an Austin employment lawyer today.  

In our fantastically diverse world, understanding and accommodating various religious practices is essential for fostering inclusivity and respect within communities, workplaces, and society as a whole. One such practice deserving attention and accommodation is Ramadan, a sacred month observed by Muslims worldwide.

Ramadan, the ninth month of the Islamic calendar, is observed by Muslims as one of the holiest months of the year. It is a month of fasting, prayer, reflection, and community, aimed at intense spiritual growth and development. Ramadan commemorates the revelation of the Quran to Prophet Muhammad and is considered one of the Five Pillars of Islam. During Ramadan, Muslims abstain from food, drink, smoking, and other physical needs from dawn until sunset.

Accommodating Ramadan demonstrates respect for the religious and cultural practices of Muslim employees, fostering an inclusive environment where everyone feels valued and respected.

Providing religious accommodations aligns with principles of religious freedom, ensuring that employees are not discriminated against or disadvantaged because of their religious beliefs and practices. Religious accommodations contribute to a positive workplace culture by promoting understanding, empathy, and teamwork among employees from diverse backgrounds. When accommodations are provided and respected, employees know that they have the necessary support and flexibility to fulfill their religious obligations while balancing work responsibilities.

Title VII of the Civil Rights Act of 1964 requires that employers provide “reasonable accommodation” for an employee’s religious practices, unless doing so would cause “undue hardship.” Therefore, employers are legally required to make adjustments in the workplace so that employees can observe practices related to their faith.

Employers should be proactive in efforts to ensure that religious accommodations are provided, honored, and respected. Religious accommodations come in many different forms, and what constitutes a reasonable accommodation should be determined on a case-by-case basis. Requests for accommodation should not be summarily denied by employers.

For employees observing Ramadan, there are many possible accommodations available in the workplace. Employers may provide flexible working hours that allow Muslim employees to adjust their schedules to accommodate fasting and prayer times. Employers can also provide a designated space for Muslims to perform their prayers during work hours. Additionally, employers can be respectful when scheduling meetings or events to avoid conflicts with prayer and fasting.

Aside from providing accommodations, employers should take action to prevent harassment against employees based on their religious beliefs. Furthermore, where harassment was not prevented but occurred, employers have a duty to take swift remedial action when it becomes known. Under the law, employers cannot simply ignore unlawful harassment.

In a beautifully diverse world such as ours, religious accommodations for practices like Ramadan is not only necessary but contributes to a happy and safe working environment. By embracing diversity and accommodating religious practices, we promote inclusivity, respect, and understanding among individuals of different backgrounds. Ramadan serves as a reminder of the importance of recognizing and honoring religious diversity. If you feel you have faced discrimination or harassment based on your religion, we have attorneys available for consultation.

Colin Walsh
Austin Employment Trial Lawyer Colin Walsh

One of the elements of every retaliation claim is that there must be a “causal link” between the employee’s protected activity and the adverse action.  In previous blogs I have talked about the standard for determining whether a materially adverse action has occurred.  In this blog, I would like to talk about one particular way of showing a causal link: timing.

In the Fifth Circuit when an adverse action occurs shortly after an employee engaged in protected activity, that timing alone can raise an inference that the protected activity caused the adverse action.  Close timing in the Fifth Circuit has been held to be four months or less.   See Evans v. City of Houston, 246 F.3d 344, 254 (5th Cir. 2001) (“A time lapse of up to four months has been found sufficient to satisfy the causal connection for summary judgment purposes.”).

But does it have to be so close in time to use temporal proximity to raise a fact issue regarding causation?  The answer is no and there isa sizeable amount of case law on this issue.  The main case on this issue is Starnes v. Wallace, which analyzed temporal connection as follows:

[W]hen it comes to timing, we have recognized that the prima facie case does not rigidly consider only one form of temporal connection. . . . Although Starnes was terminated more than a year after she engaged in protected activity, the termination occurred just ten days after Daybreak paid $40,000 to resolve the problem Starnes raised. The time when funds have gone out the door may be when the retaliatory impulse is strongest. The termination also came within a month of the meeting between Rich and Ludy, in which Rich heatedly blamed Starnes for the dispute over Vincent’s pay. Starnes v. Wallace, 849 F.3d 627, 635 (5th Cir. 2017).

Starnes is not an anomaly, but an established standard.  Gee v. Principi  involved an over two-year lapse between protected activity and non-selection for a position.  In Shirley v. Chrysler First, Inc., this court found that a time lapse of fourteen months “did not absolve the defendant of its responsibility for retaliating against the plaintiff for her filing of an EEOC claim.” .  In Zamora v. City of Houston, Judge Atlas found that a twenty-six-month gap where the plaintiff alleged a series of adverse actions spanning several years was sufficient to defeat summary judgment.  Montgomery-Smith v. Louisiana Dept. of Health & Hosp., found six to seven years not between protected activity and adverse action not too remote.

The Montgomery-Smith case is particularly interesting.  In that case, after the employee had engaged in protected activity, the employee’s supervisor told her that she would never receive another promotion again.  Six to seven years then went by before the employee applied to two promotions for which she was qualified that were under that same supervisor.  The supervisor denied the employee both promotions.  Under those circumstances, the court found that there was a causal connection between the protected activity and the denied promotions even though over six years had passed.

In a case my firm currently has on appeal to the Fifth Circuit, we are arguing that there is a temporal connection between protected activity and an adverse action that occurred four years later.  In that case, the supervisor our client made a complaint against in 2015 retired for several years before returning to supervising our client.  Shortly thereafter, the supervisor ignored a directive from his superior and issued our client a reprimand that resulted in our client losing required certifications for his job and being transferred elsewhere.  We are hopeful that the Fifth Circuit will agree and remand the case for trial.

If you think you have been the victim of retaliation at your place of employment, please contact a lawyer to discuss possible action. The lawyers at Wiley Walsh, P.C. have extensive experience in representing workers in retaliation claims.   

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

A category of discrimination that does not yet have federal protection is discrimination on the basis of weight. Weight discrimination in the workplace is quite prevalent but remains unprotected nearly everywhere in the U.S. One troubling 2023 survey by the Society for Human Resource Management revealed that half of people managers indicated a tendency to favor interacting with “healthy weight” employees. 

A study specifically regarding weight discrimination in hiring processes illustrated how much one’s size can inappropriately impact their employment opportunities. The results indicated that job applicants experiencing obesity were rated as less suitable compared to candidates of average weight or candidates whose sizes were not revealed. Female applicants experiencing obesity were identified as more likely to be discriminated against than their male counterparts. Finally, those applying to more physically demanding occupations were deemed as less suitable for the role when experiencing obesity. Evidence in other studies have noted that people experiencing obesity are perceived as having “less leadership potential” and “expected to be less successful.”

Countless employees report facing bias, prejudice, and even harassment day in and day out due to weight. From being passed over for promotions to enduring harassing comments, the impact of weight animus on one’s career and mental well-being cannot be overstated. Sadly, as we know, this animus extends across society, from kindergarten bullying to disparate treatment by healthcare workers to employment discrimination. 

The rise of social media and digital platforms has fostered the proliferation of fat-shaming, trolling, and cyberbullying. However, social media has also provided room for marginalized voices. Those of bigger sizes have successfully harnessed their power to normalize varying body sizes on screens and find camaraderie and support. Social media has also allowed for society as a whole to engage in and be exposed to conversations about body positivity. Although weight discrimination has long been ignored, it seems that American society is finally starting to validate this form of discrimination & seek remedies for those experiencing it.   

Just two weeks ago, New Jersey advanced a bill that could make it the second state in the country to render unlawful discrimination based on weight. The last state to do this was Michigan—back in 1976. From coast to coast, cities across the nation have successfully obtained protection against weight discrimination, including New York City, Binghamton, Washington, DC, Madison, Santa Cruz, and San Francisco. The country has a very long way to go, but momentum for protecting this trait has markedly increased. Several other jurisdictions across the U.S. are presently working to pass similar bills, including Vermont, Massachusetts, and New York.    

While Texas does not yet have any active legislation to protect against weight discrimination, several Fifth Circuit courts have made moves in the right direction. Unlike most jurisdictions across the country, multiple district courts in the Fifth Circuit have held that obesity can be an actual or perceived disability under the ADA, regardless of whether there is an underlying physiological condition. 

Unfortunately, last year, the Supreme Court of Texas chipped away at this progress. According to Dr. Niehay, a former medical resident at Texas Tech, she was discriminatorily terminated due to her weight. The question before the court was whether morbid obesity qualified as an impairment under the Texas Commission on Human Rights Act without any evidence that it was caused by an underlying physiological disorder or condition. The Court held that unless an underlying physiological disorder or condition causes the obesity, the obesity itself does not qualify as a disability. 

This setback highlights the importance of making weight a protected class of its own. This way, workers can confront weight discrimination head-on. Every employee deserves to be treated with dignity, respect, and fairness, regardless of size. Hopefully, the momentum we see now will help us to foster a more inclusive work environment for all.