Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Did you know that Beaumont, TX was once home to one of the most important oil booms in U.S. history? It’s true! Growing up in Beaumont, a medium sized Southeast Texas town, field trips to the Spindletop site were pretty routine. Today you can still tour the Spindletop Boomtown Museum located on Lamar University’s campus in the southern part of Beaumont.

The oil and gas industry has undergone transformative changes since the discovery of oil at Spindletop in Beaumont in 1901. This landmark event not only marked the beginning of the Texas oil boom but also catalyzed the rise of petrochemical production. The vast quantities of crude oil extracted from Spindletop laid the groundwork for a burgeoning petrochemical sector, as the byproducts of refining oil became crucial for producing a wide array of chemicals and materials. This development helped fuel the industrial growth of the region and the nation, leading to advancements in everything from plastics to fertilizers.

As the petrochemical industry evolved, it became a vital component of the global economy, leveraging the raw materials derived from oil and gas to create essential products. In Beaumont and surrounding areas, facilities sprang up to process crude oil into petrochemicals, driving innovation and creating jobs. Today, the region continues to be a hub for petrochemical manufacturing, contributing significantly to the economic landscape of Texas and the broader U.S. economy. The legacy of Spindletop endures, as it not only symbolizes the birth of the oil industry but also highlights the intricate relationship between crude oil extraction and the diverse petrochemical products that support modern life.

The Golden Triangle (Beaumont, Port Arthur, Orange, TX) is also home to the world’s largest oil refinery. [1] Throughout the southeast Texas region, the petrochemical manufacturing industry in Jefferson County accounts for 46.7% GDP of the region according to the state comptroller’s site. In 2019 alone, the region boasted more than 34,000 jobs within the industry as well. Here, there are numerous petrochemical companies that are widely known such as Arkema, ExxonMobil, Goodyear, and Sunoco. All in all, the petrochemical industry has brought many jobs to the Southeast Texas region which has been great for the local economy.

However, turning shades to another aspect within the petrochemical industry is employment discrimination. As with any other industry, there has been a plethora of instances the U.S. Equal Employment Opportunity Commission (EEOC) has addressed several cases of employment discrimination within the petrochemical industry, revealing persistent issues related to race, gender, and disability.

In March of 2023, ExxonMobil Corporation was sued by the EEOC for failure to take effective measures to thwart harassment on the basis of race. Occurring at its Baton Rouge, Louisiana location, ExxonMobil was alleged to have failed to protect a Black employee who found a hangman’s noose at his worksite in 2020. Prior to this employee’s complaint, ExxonMobil was on notice of previous similar instances where three additional nooses were found at the baton Rogue plant. Furthermore, ExxonMobil is alleged to have only investigated a few but not all instances regarding the hanging of these nooses. Ultimately, the EEOC alleges that ExxonMobil failed to investigate all of the instances as well as failed to effectuate reasonable measurers to halt the racially motivated actions. For additional information regarding this lawsuit, see here.

 Another notable case involving employment discrimination and a petrochemical plant in Texas is where the EEOC field a lawsuit against Valero of claims of disability discrimination. Valero is alleged to have discriminated against an employee by discharging him for failure to take a reading test. Prior to the termination, Valero is alleged of failing to accommodate the same employee. For additional information on this lawsuit, see here.

These cases underscore the need for ongoing vigilance and proactive measures within the petrochemical industry to combat discrimination. They serve as a reminder that organizations must prioritize diversity and inclusion, ensuring equal opportunities for all employees, regardless of race, gender, or disability.

In a nutshell, employers must initiate a prompt and remedial measure following notification of racial discrimination and harassment in the workplace. An employer should also act on an employee’s request for accommodations then engage in the interactive process. Contact our office to discuss whether you may have a claims of employment discrimination in the workplace.

#EEOC #OilandGas #Discrimination

[1] https://comptroller.texas.gov/economy/economic-data/manufacturing/2020/southeast.php.

Kalandra Wheeler
Kalandra Wheeler is a Board Certified Houston/Austin employment lawyer.
  1. Your Texas-Sized Voice. Voting is how Texans make their voices heard. Whether it’s about who should sit in the Oval Office or how schools should be funded, your vote helps decide key issues. Elected officials make decisions that directly affect your daily life—from healthcare and education to taxes and transportation. Your vote says, “Here’s what matters to me.”’
  1. 2. Every Vote Counts. You might think your vote doesn’t make a difference, but elections can be incredibly close. Some races are decided by just a few votes, so every ballot truly matters. Whether you’re in a big city like Houston or a small city like Longview, your vote can make a significant impact.
  1. 3. Local Elections Are a Big Deal. While national races tend to get the spotlight, local elections are where you can see the most direct changes in your community. Texans vote for mayors, city council members, school boards, and more. Voting at the local level ensures your community’s specific needs are addressed.
  1. 4. People Fought and Died for the Right. Voting is not just a privilege—it’s a right that people died to secure. Throughout history, people have marched, protested, and even died to make sure that everyone, regardless of race or gender, can vote. By casting your ballot, you honor those sacrifices.

The Benefits of Early Voting in Texas

Early voting in is not just a matter of convenience—it’s practically a necessity for many. Starting on October 21, 2024, Texans will have a two-week window to vote early. Here’s why early voting is the smart way to go:

  1. 1. Skip the Election Day Stampede. Everyone knows that everything is bigger in Texas, including Election Day lines. Avoid the Election Day rush, skip the crowds, and get back to doing what Texans do best—living large.
  1. 2. It’s Perfect for Busy Schedules. Between work, family obligations, and the occasional BBQ, Texans lead busy lives. Early voting gives you flexibility, with multiple days and locations to cast your vote. You’ll find the time to vote without the stress of a one-day deadline.
  1. 3. More Accessible for Everyone. Early voting stations are often less crowded and easier to navigate for seniors and people with disabilities.
  1. 4. Life Happens, and Early Voting Is Your Backup Plan. Let’s be honest—things don’t always go as planned. Life’s curveballs could keep you from casting your ballot on Election Day. Maybe your car breaks down or you catch the flu. Early voting gives you peace of mind.
  1. 5. Boosts Voter Turnout. When more people vote, democracy gets stronger. Early voting encourages higher turnout by making it easier for everyone to participate. In a state as diverse as Texas, it’s vital that all voices are heard. Higher turnout also holds politicians accountable—they know they’ll need to represent the interests of all voters, not a select few.

Voting is the most powerful way Texans can influence the direction of our state and country. Early voting, starting on October 21, 2024. Whether you’re passionate about education, healthcare, or the economy, your vote matters. To find an early voting location near you click here. So, grab your boots, make a plan, and vote like a Texan!

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

Starting a new job is an exciting time, filled with new opportunities and responsibilities. But before you dive into your role, it’s crucial to carefully review the onboarding paperwork your employer provides. While you might be eager to get started, signing documents without understanding their implications could lead to misunderstandings—or worse, waive important legal rights.

As a plaintiff’s employment lawyer in Texas, I’ve seen firsthand how onboarding paperwork can affect employees in the long run. Here are key things you should be looking for, and questions to ask, when going through your onboarding documents.

1. Offer Letter or Employment Agreement

The offer letter or employment agreement sets the tone for your employment relationship and gives you a basis for any discussions regarding your terms and conditions of employment in the future. It should clearly outline:

Job Title and Responsibilities: Make sure your job description aligns with the role you discussed during the interview process. If your duties are vague, it could lead to confusion or additional responsibilities you weren’t expecting. To the extend you can, also get your employer’s expectations and metrics they will use to measure your success in your role down in writing so its more clear when performance evaluations come around. 

Salary and Compensation: Verify that your salary, bonuses, and any commission structures are clearly spelled out. Ensure the frequency of payment (weekly, biweekly, monthly) is also defined. If your role comes with bonuses or commissions, make sure the metric by which those payments will be calculated and when they are considered earned is also spelled out to alleviate any confusion about how much and when you will get those payments. 

Start Date: Double-check that the start date listed aligns with your expectations.

If the offer letter refers to an employment agreement, read it carefully. Employment agreements often include additional terms about your employment, such as probation periods, termination clauses, and the ability of either party to modify the terms. Pay close attention to clauses that discuss “at-will” employment, which allows either you or your employer to terminate the relationship at any time for any lawful reason.

2. Non-Compete, Non-Solicitation, and Confidentiality Agreements

Employers often include agreements that restrict your behavior both during and after your employment. You should review these agreements carefully:

Non-Compete Agreements: These limit your ability to work for competitors for a certain time period after you leave the company. In Texas, non-compete agreements are enforceable only if they are reasonable in scope, geography, and duration. If the restrictions seem overly broad, consider negotiating or seeking legal advice. These agreements can survive indefinitely so it is important to understand the situation you’ll be left in if you are leaving the current employer for any reason in the future. 

Non-Solicitation Agreements: These prevent you from soliciting your former employer’s clients, employees, or business partners after you leave. This can significantly affect your future job prospects if you work in a specialized field.

Confidentiality Agreements: These require you to keep proprietary company information secret. Be sure to understand what information the company considers confidential and the duration of this obligation.

Arbitration Agreements: Many employers now include arbitration agreements in their onboarding paperwork. By signing an arbitration agreement, you agree to settle any legal disputes through private arbitration rather than in court. 

While arbitration can sometimes be faster, cheaper and less formal than litigation, it can also be less favorable to employees. Arbitration is typically confidential, allowing an employer to keep their bad acts hidden.  There are also procedural considerations, for instance, the rules of evidence and procedure are often more relaxed, which could affect the fairness of the process. If you’re presented with an arbitration agreement, consider seeking legal advice before signing.

Conclusion

Your onboarding paperwork is more than just a formality—it can shape your entire employment experience and affect your legal rights. Before signing anything, take the time to review all documents carefully. If any terms seem unclear or unfair, consider seeking clarification or legal advice. 

If you have any concerns about your rights or the documents you’ve been asked to sign, don’t hesitate to reach out to one of our knowledgeable employment attorneys who can help you protect your interests.

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

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

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

What is Mediation?

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

The Road to Resolution 

1. Choosing a Mediator

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

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

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

2. Initial Preparation

Prior to the mediation, you and your attorney will:

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

3. The Mediation Session

The mediation session itself usually follows a structured format.

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

4. Reaching an Agreement

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

Benefits of Mediation

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

Conclusion

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

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

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

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

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

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

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

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

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

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

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

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

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

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

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

Disaster Leave for Private Employees

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

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

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

Employer Discretion and Federal Assistance

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

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

Conclusion

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

Areyana Johnson
Austin/Houston Employment
Trial Lawyer Areyana Johnson

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

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

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

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

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

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

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

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

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

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

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

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

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