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

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

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

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

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

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

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

Kalandra Wheeler
Kalandra Wheeler

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

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

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

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

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

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

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

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

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

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

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

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

 

 

  

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

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

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

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

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

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

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

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

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

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

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

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

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

Colin Walsh
Colin Walsh

If a person or company breaches a contract they have, that person or company can be sued immediately in court.  If someone gets in a car wreck, in theory, a lawsuit could happen the next day.  Ditto if you don’t get paid minimum wage or overtime.  But with employment discrimination and retaliation, as with many whistleblower statutes, a lawsuit cannot happen until after administrative remedies have been exhausted.  So what does that mean?

Basically, exhaustion of administrative remedies means having to report the discrimination, retaliation or whistleblower retaliation to a certain agency, department, or authority.  For example, if you were discriminated against by your employer in Texas because of you race, age, gender, disability, religion, national origin, or color, you must first report it to either the Equal Employment Opportunity Commission (EEOC), the Texas Workforce Commission (TWC), or a Fair Employment Practices Agency (FEPA).  These agencies then have a statutorily required amount of time to investigate the claim before the agency issues a right to sue.  It is this right to sue or entitlement to that right to sue that allows a person to take the discrimination claim to federal or state court.  The exact same process must occur for retaliation claims involving retaliation for opposing discrimination based on race, age, gender, disability, religion, national origin, or color.  But after you receive your right to sue or entitlement to a right to sue, your administrative remedies have been exhausted.*  

The deadlines for filing with the EEOC, TWC or FEPA are extremely short as deadlines go.  To preserve federal law claims, the charge must be filed within 300 days of the adverse action.  To preserve state law claims, the charge must be filed within 180 days of the adverse action.  Moreover, Texas state law employment discrimination/retaliation claims have a second statute of limitations that must be met.  State law employment discrimination claims must be brought within two years of the filing of the charge of discrimination regardless of whether a right to sue has been issued.  These deadlines are even shorter for federal employees.

Whistleblower claims have myriad different agencies, departments, or individuals that must be reported to in order to begin exhausting administrative remedies.  Moreover, the deadlines for such reporting are all over the place ranging from 30 days to 2 years.

I hear what you are thinking: what happens if I don’t exhaust my administrative remedies?  Well, in most situations that means your case will get kicked out without ever reaching the merits, which is a major bummer.  

Is there any hope if I didn’t exhaust my remedies? Yes!  But it is super risky.  Recently, the U.S. Supreme Court held that exhaustion of administrative remedies for purposes of federal employment discrimination laws are not jurisdictional. Fort Bend County, Tex. v. Davis, 139 S. Ct. 1843, 1850, 204 L. Ed. 2d 116 (2019).  That means that a defendant must affirmatively plead and prove that you did not exhaust administrative remedies before your case can be kicked out on that basis.  In most cases, defendants will plead the affirmative defense of a “failure-to-exhaust” just in case.  So, it is unlikely that most plaintiffs can take advantage of this fact, but it does happen.

This leads to two takeaways.  First, between reporting to the right agencies, departments, or persons and doing so within the proper timeframe things can get complicated.  Second, if you suspect unlawful discrimination or retaliation, you should act quickly.  A lawyer can help you through this process and make sure that by the time you have exhausted your administrative remedies you are in the best position to file suit.  

*There’s that phrase again: “entitlement to a right to sue.”  That’s weirdly phrased, you think.  You’re right.  You are so smart to notice that.  It’s phrased that way because of a quirk in Texas law.  Under Chapter 21 of the Texas Labor Code, courts have determined that neither the actual right to sue nor even the request for a right to sue is necessary to exhaust state administrative remedies.  Instead, all that is required is that 180 days pass since the charge was filed.  Then on the 181st day, you can file your lawsuit without tasking any other action because administrative remedies have been exhausted. See City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.); see also Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513-14 (Tex. App.-Waco 2004, pet. denied).  That’s kinda fun, right?  Not a lot of people, including not a lot of employment lawyers, know that, but now you are one of the few who does! 

Rob Wiley
Rob Wiley is a Texas employment lawyer.

Recently I was asked, “Why is it that servers are bagging up online orders for Uber, DoorDash, etc. and only getting paid $2.13 per hour to do so?” It certainly doesn’t seem very fair, but is it illegal? Like most things in law, the answer is maybe. This is an example of what happens when old rules about restaurants collide with modern developments.

A restaurant can break the law if waiters aren’t paid $7.25 for all hours worked in a workweek.  Waiters are entitled to minimum wages just like everyone else. But a restaurant can use tips to supplement the $2.13 to meet the $7.25 requirement. However, under the law, this math is done “per workweek.”  Here’s the math: take the total amount paid in a week (wages and tips) and divide that by the total number of hours worked.  If that number is less than $7.25, the employer is breaking the law. For example, Susan worked 32 hours, was paid $68.16 by the restaurant and got $160 in tips. That’s $228.16 total divided by 32, which comes to $7.13. That’s less than minimum wage for the week. Seems small, right, but the damages for this kind of violation could be thousands of dollars for Susan, depending on how long she worked for the restaurant.

A restaurant can break the law if it misclassifies a bagger as a waiter. If all you’re doing is bagging up food, you’re not a waiter anymore. While waiters can be paid $2.13 plus tips, a bagger would be entitled to $7.25 directly from the restaurant. If bagging is your primary job duty – instead of waiting tables – then the restaurant is breaking the law. In fact, if you’re being paid $2.13 plus tips and you’re only a bagger, the restaurant is breaking the law regardless of how much you get paid in tips.

A restaurant can break the law if it makes waiters tip-out to full time baggers.  If you are a waiter and you have to tip out to baggers, that’s illegal too! Baggers are noncustomer-facing employees, and therefore restaurants are not entitled to use tips to satisfy the minimum wage requirement if someone is a bagger. Workers who just bag food have no business taking tips from waiters, the restaurant must pay them directly for their work. Remember, non-waiters like cooks, janitors, dishwasher, managers, and baggers have no right to your tips – that’s wage theft.

You are entitled to tips from delivery drivers and pick up customers.  If delivery drivers or pickup customers provide tips for the restaurant, these tips must be shared with waiters bagging food. Although it seems like an uncommon practice, there are a number of forums on the internet that discuss tip-outs by drivers to restaurants.  These tips would follow the general rule for tips: those tips belong to the waiter. Similarly, if a customer who picks up something ordered on DoorDash and leaves a tip, that tip goes to the waiter. Restaurants are known to steal tips, don’t let this happen to you.

The person asking the question has a good point.  It should be illegal to make waiters do non-tipped work. Restaurants exploit waiters by making them set up and break down restaurants, roll silverware in napkins, refill condiments, and other duties for which they aren’t tipped during downtimes. All of this work decreases the amount of time spent getting tips, and means waiters are doing work for $2.13 per hour – slave wages. Under current law, it’s not the hour that counts, it’s the total pay per workweek.

 

Kalandra Wheeler
Kalandra Wheeler

In litigation, the American Rule means that in a legal dispute, both parties are responsible for their own attorneys’ fees.  No matter who the victor, each party pays their own way.  For two large companies with sufficient funds to litigate a matter, this rule may not be very harsh.  

But, what does this rule mean to employees in the context of employment disputes?   

In employment disputes, the American Rule may be particularly unfair for an employee who has little in the way of financial resources to pursue a claim or mount a defense against a large company with deep pockets.  Accordingly, under the American Rule, many employers might walk away with no consequences for an injustice against an employee.   

Fortunately, the American Rule may be superseded by statutes and contracts.  There are many laws that protect employees from the type of injustice that could arise from the American Rule. Most statutes that apply to employment disputes provide for the recovery of attorneys’ fees if the plaintiff wins at court.   

But what does the American Rule mean if it is found in an employment agreement?  

When negotiating or entering into an employment agreement, typically one side has greater bargaining power.  The employer has a job the employee wants.  Sure, some will argue that the employee has the option of not accepting a job based on the terms offered. However, in a tight job market, employees may find themselves with only two options: (1) take the job with not so favorable terms or (2) reject the job and remain unemployed while another person takes the position.  Often, it is rare to find a shortage of available and skilled workers. Conversely, there may be a shortage of the right job opportunities.  So, while workers may theoretically have the right to walk away, realistically, financial constraints and obligations may leave them with no real option.  

When entering into an employment contract, there are many rights that an employee may give up.  Accordingly, employees should make sure they understand all of the terms they are agreeing to.  Employees may find themselves giving up the right to leave their place of employment to work for a competitor due to a non-complete clause.  They may give up the right to a trial by jury because of an arbitration clause.  They may even give up their right to pursue legal action against their employer due to financial reasons.  What does this mean?  How does an employee give up the right to pursue legal actions?

If entering into an employment agreement that contains terms memorializing the American Rule, an employee may need to consider whether they can actually afford the cost of an attorney should the employer breach the agreement.  

It may cost tens of thousands or even hundreds of thousands of dollars to litigate an entire case.  When employment statutes provide for the recovery of attorneys’ fees, the employee and their attorney know that if successful, they can recover these litigation fees and costs from the employer.  However, when parties have contracted away their right to recover attorneys’ fees in an employment dispute, the employee may be faced with deciding whether they can afford to pursue their claims against the employer knowing that a successful outcome may not include recovering the fees and costs of going the distance.  If the damages sustained by the employee become relatively minimal after hiring an attorney, or even worse, less than what it would cost to hire an attorney, the employee may be more inclined to walk away.  

In its application, the American Rule in an employment agreement may be fundamentally unfair by making it impossible for the employee in the inferior financial position to later protect their rights if needed.  This means the employer who came in with greater bargaining power has won.  

If you are faced with a job opportunity and have questions or concerns over the terms of an employment agreement, you should consult with an employment attorney to know and understand your rights BEFORE signing.

Julie St. John
Julie St. John

May is mental health awareness month. It is designated as such to bring awareness to the importance of mental health and to de-stigmatize mental illness. As an employment lawyer, I believe this effort is of the upmost importance. 

Mental health should not be looked at any differently than physical health. Our brain is a part of the body. Accordingly, health issues that are associated with the brain should not be treated differently than health issues that affect other parts of the body. 

The good news is, under the law, they are not treated differently. The Americans with Disabilities Act (“ADA”) defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A) (emphasis added). The bad news is, despite the fact that individuals with mental disabilities are entitled to the same protections under the law as those with physical disabilities, employers have a tendency to treat them differently. This may be in part because mental disabilities are so called “invisible disabilities”. When employers cannot see the disability physically manifested, perhaps they do not believe the workers should be entitled to any protection. But they are wrong. 

Clearly, under the law, individuals with mental disabilities are protected from discrimination on the basis of their disability. They are also protected from retaliation if they make complaints about discrimination on the basis of their disability. Nevertheless, discrimination against those with mental health issues is prevalent. Moreover, when individuals with mental disabilities are discriminated against, it can be particularly difficult because of their underlying condition. 

Almost everyone who is subjected to illegal discrimination or retaliation in the workplace finds it takes a toll on their mental health. When this additional strain is added on top of an existing underlying mental health issue, the problem is often exasperated. It’s like the difference between kicking someone in the leg versus kicking someone in the leg who already has a broken leg. Unfortunately, too often, employers seem to attempt to use this to their advantage. This can come in all different forms, such as the employer being overly intrusive into an employee’s health information, or overly burdensome as to what medical documentation they claim they “need” for leave or accommodations to be provided, or sometimes it can even be suspending the employee and subjecting them to a fit-for-duty evaluation. Although an employee facing such a scenario may want to refuse or quit, although it may all feel like too much to handle, it is very important to instead contact a lawyer immediately. 

Overall, it is of the upmost importance for those with mental disabilities who are experiencing discrimination or retaliation in the workplace to not only seek medical help, but also legal help. Under the ADA, there is protection from discrimination and retaliation for those who are being targeted because of their mental health condition and those who have complained about discrimination. Workers with mental disabilities also have the right under the ADA to request reasonable accommodations from their employers to be able to do their job. Accommodations for workers with underlying mental health issues can vary widely, but employers are required to engage in what is called the interactive process to determine what accommodations can be provided. Obviously, an employee’s mental health care provider will also play an important role in this process. 

If you have faced discrimination because of your mental health, or retaliation for complaining about mental health discrimination, or your employer is refusing to provide you with reasonable accommodations, you should consult with an employment attorney right away. You are not alone in your fight for equal treatment. 

Colin Walsh
Colin Walsh

Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work.  That raises the question of what equal work means.  The statute itself helps with this question a little bit.  The text of the statute states that work is considered equal if the performance of both jobs requires “equal skill, effort, and responsibility” in addition to both jobs being “performed under similar working conditions.”  But still, what does that actually mean in the real world?

Freyd v. University of Oregon, a recent 9th Circuit case involving a University Professor, addresses that question head on.  In that case, Professor Freyd, a female, was one of fourteen full professors in the Psychology Department at the University of Oregon.  She has been working at the University since 1987.  In 2014, Professor Freyd discovered that she was making between $14,000 and $42,000 less than four of her male colleagues in the same department.  Additionally, in Spring 2016, the Psychology Department did a mandatory annual self-study, which revealed that the average difference in salary between male and female professors was $25,000 in favor of the male professors.  The study concluded that this pay difference was due to retention bonuses paid to male professors far more than female professors.  In March 2017, Professor Freyd sued under the Equal Pay Act.  

The University of Oregon defended the case, in part, by arguing that Professor Freyd did not perform equal work to the other male professors she argued were paid more than her.  Therefore, according to the University of Oregon, the Equal Pay Act did not apply.  So, what were these differences?  Well, all of the professors had different individual responsibilities, ran different programs and received different forms of funding:

[T]he district court arrived at its conclusion on this issue by contrasting the individual responsibilities of Freyd, Mayr, Hall, Fisher, and Allen, including the separate laboratories or projects they supervised. See, e.g., Freyd, 384 F. Supp. 3d at 1291 (analyzing Hall’s work at CoDaC); id. at 1292 (assessing Fisher’s responsibilities managing federal grants); id. at 1293 (commenting on Allen’s position as the director of the Center for Digital Mental Health).

Freyd v. Univ. of Oregon, — F.3d —, No. 19-35428, 2021 WL 958217 at *7 (9th Cir. March 15, 2021).  In other words, because Professor Freyd did not found and run the exact same centers or organizations and did not receive money from the same sources, the jobs were different.  

Can such granular differences, as a matter of law, really render the jobs of two full psychology professors different?

No.  

The 9th Circuit Court of Appeals rejected that argument from the University of Oregon and reversed the district court who had ruled in favor of the University.  The 9th Circuit said that the individual segments of a job were not the proper focus when assessing whether jobs were equal under the Equal Pay Act.  Instead, the Court held that it was the overall job that mattered and whether or not a jury could find that the two jobs had a common core of tasks.  It is worth quoting what the Court said at length:

A reasonable jury could find that Freyd, Fisher, Allen, and Hall share the same “overall job.”8 As full professors in the Psychology Department, Freyd and those three comparators all conduct research, teach classes, advise students, and “serve actively on departmental, college, and university committees and in other roles in service to the institution.” They also “contribute to the University’s goals regarding equity and inclusion” by participating in relevant associations and organizations. Although Freyd and her comparators all perform each of these functions, it is also true that they do not teach the same courses, or supervise the same doctoral students, or manage the same centers. In this respect, they are not identical. But we are unable as a matter of law to pronounce their responsibilities so unique that they cannot be compared for purposes of the Equal Pay Act.

Freyd, 2021 WL 958217, at *7.  This is an important decision from the 9th Circuit because it puts to rest this idea that small differences in a job or that high-level professional or academic jobs are not subject to the EPA.

If you believe that you are not paid the same as someone of the opposite sex, you should contact an employment law attorney to discuss your case.

Julie St. John
Julie St. John

The federal government is at a risk of fraud because of contracts it makes with and resources it provides to private companies. For example, the federal government contracts with private construction companies to work on federally funded development projects. Another example is money paid to private health care providers as a result of Medicare and Medicaid claims. Unfortunately, it can be difficult for the federal government to detect fraud. That is where the False Claims Act (FCA) comes into play. 

The FCA is a federal law that helps protect the federal government from fraud. In fact, according to the Department of Justice, in the fiscal year ending September 30, 2020, more than $2.2 billion in settlements and judgments were obtained as a result of civil cases brought under the FCA. The FCA allows private citizens to file lawsuits against those defrauding the government on behalf of the government. These are called qui tam lawsuits. 

The FCA is structured the way it is because those who are the most likely to learn about potential fraud against the government are the employees of the companies that are receiving the federal funds. For example, an administrative assistant at a healthcare clinic may learn of false claims being submitted to Medicare, or a payroll specialist may learn of improper payment of required prevailing wage on federally funded construction projects. 

To establish a winning qui tam action, there must be: (1) a false statement or fraudulent course of conduct, (2) made knowingly, (3) that was material, and (4) caused the government to pay out money or to forfeit moneys due. See United States ex rel King v. Solvay Pharm., Inc., 871 F.3d 318, 323-24 (5th Cir. 2017) (citing United States ex rel. Longhi v. United States, 575 F.3d 458, 467 (5th Cir. 2009)). To simplify, a successful qui tam action requires intentional, successful fraud on the government. 

This is a high burden. Accordingly, an employee who suspects fraud may want to investigate first before taking any further action. Indeed, it makes sense for the government to encourage such investigation prior to filing. If an employee determines on their own no fraud is occurring, it will save the government time, energy, and effort it would otherwise have to expend to investigate after an action is filed. 

The question remains, would an employee who decides to investigate potential fraud prior to filing be protected from retaliation if their employer discovers the employee was looking into potential fraud? The answer is yes. Again, it makes sense that the law would encourage employees to investigate on their own. And to encourage such action, the employees must be protected from retaliation regardless of whether fraud is actually occurring. If the law did not provide such protection, why would an employee risk investigating? Likely, they would not.

Courts have made clear that employees are not required to establish an underlying violation of the FCA in order to succeed on a retaliation claim. See Hutchins v. Wilentz, Godman & Spitzer, 253 F.3d 176, 187 (3rd Cir. 2001). A successful underlying qui tam action is not necessary to a FCA retaliation claim. See id. 

Determining what activities constitute “protected conduct” is a fact specific inquiry. But the case law indicates that “the protected conduct element . . . does not require the plaintiff to have developed a winning qui tam action. . . . It only requires that the plaintiff engage in ‘acts . . . in furtherance of an action under [the False Claims Act].’”

Id. (citing United States ex rel. Yesudian v. Howard Univ., 153 F.3d 731, 739 (D.C. Cir. 1998) (quoting 31 U.S.C. § 3730(h)).).

If you have faced retaliation for investigating or reporting your employer’s potential fraudulent actions against the federal government, you should consult with an employment attorney to explore your options. 

Also, to learn more about qui tam actions, check out my Dallas colleague Deontae Wherry’s blog on the subject: 

https://www.dallasemploymentlawyer.com/the-false-claims-act-suing-your-employer-on-behalf-of-the-government/