Harjeen Zibari Trial Attorney

The Writers Guild of America is currently on strike, marking the first strike of its kind since 2007. However, television and media, along with the way it is consumed, has changed drastically since that time. It wasn’t until around 2010 that streaming services like Netflix became commonplace in our households, which should have necessarily changed the way writers are paid. After all, actors can enjoy residuals from streaming services (but the fairness of that pay scheme is still widely debated, and not the subject of this blog), but what do writers get? 

Television and film writers report that their pay has stagnated, despite the streaming industry experiencing rapid growth. However, studios claim that the transition to streaming actually supports lower pay. This is frustrating to say the least, given the fact that we wouldn’t have anything to stream if it wasn’t for the hard work of writers. It’s also frustrating given rising inflation rates and soaring costs of living. 

The effect this strike has on media depends on the pace of the industry its related to. Films, for example, which have the longest production times, should not see an effect of this strike for films in production this year. Standard television shows will see an effect by the end of the year. Soap operas are thought to run out of episodes in just a month, given their rapid turnover rates. And daily late night shows, which rely heavily on the (literal) quick-wit of its writers, have all gone off air for the time being. Writers are picketing in New York and LA, most visibly in front of the Netflix Building.  

This strike is nothing to take lightly. In April, more than 9,000 writers authorized a strike with a historic ninety-eight percent of the vote. But what exactly are they asking for? Amongst other things, the WGA seeks higher-fixed residual earnings, to standardize compensation and residual terms, to ensure compensation though all stages of production (pre-, production, and post-), to increase benefit contributions (pension and health), and to revise and expand all arbitrator lists in light of union-related disputes. Reportedly, the WGA was only asking for 6% increases in a multi-billion dollar industry, something the Alliance for Motion Picture and Television Producers (AMPTP) was not willing to accept. 

Now, the workers are striking. Because they are represented by a union, they have the right to be heard by the employer via the collective bargaining process, and have the right to strike and cease working until their needs are met and a solution is negotiated. 

Several celebrities have come out in endorsement of the striking workers. Quinta Brunson, creator of my favorite show, Abbott Elementary, has been seen at the picket lines as a member of the union herself. Drew Barrymore, who was set to host the MTV Movie & TV Awards Live Show that was canceled in light of the strike, also has publicly announced her support. Late Night hosts Stephen Colbert, Jimmy Fallon, and Seth Meyers have also announced their support. Snoop Dogg had some choice words to say about the unfair compensation schemes last week as he voiced his support as well.

The WGA also boasts a long list of supporters, which is notable because many of these groups have not seen eye to eye typically. However, all can agree that it is time that our writers are paid their fair share of the industries they power.

There are thoughts in the background that this showing of the effectiveness of unions will inspire more Americans to unionize. Here in Texas, unions do not have a very large presence. In 2022, union members only accounted for 4.1 of workers in Texas, which was up from its all-time lowpoint in 2021 of 3.8 percent. This is, to put it very gently, a hard state to unionize in, but you still have the right to pursue a union in your workplace in Texas. Unions do not have to be several-thousands of members deep to be effective, or strike for months at a time. A union, however, will assure that your employer has to hear your demands for better working conditions, whether that be pay, benefits, hours, or worksite conditions. And union workers make, on average, 15% more than non-union workers. 

You have rights when considering unionizing. If you have attempted to stand up for the rights of yourself and other in the workplace and faced retaliation, you should consult with an employment attorney right away. Contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Sometimes breaking up can be hard to do, especially when the current relationship limits future prospects. Toxic relationships are emotionally draining. They can be the source of stress and anxiety; that stress and anxiety can result in health issues.  They can result in a loss of independence; that loss of independence can result in isolation.  This is the relationship that employees have with their noncompete agreements. 

Noncompete agreements, also known as restrictive covenants or noncompete clauses, are agreements designed to be a restriction an employee’s ability to work for a competitor or start a competing business after leaving their current employer. While employers may claim to use these agreements to protect business interests, to protect against losing trade secrets, or to protect confidential information, don’t be misled.  A noncompete are used to hold employees hostage. 

Many employees give little thought to the noncompete when starting employment.  However, when it is time for the employment relationship to end, they can think of nothing but that noncompete. Employees feel trapped and unable to move forward due to the restraints placed on them by the agreement. The restrictions and limitations may cause a person to feel stressed and anxious while trying to figuring out how to move forward with their career.

While employers only have concerns for their interests, employees must have concerns for theirs. Employees must understand the impact noncompete agreements have on the workforce.

First and foremost, noncompete agreements limit an employee’s job prospects and opportunities for career advancement. When employees are bound by a noncompete, they may be unable to accept job offers from competitors or start their own competing business, even if they possess valuable skills and expertise. This can limit a person’s ability to pursue their chosen career path, grow their skills, and seek better employment for higher wages. This is only a benefit for employers.

Second, noncompete agreements limit an employee’s bargaining power and ability to negotiate better wages or working conditions. If an employee is bound by a noncompete, they may be less likely to attempt to negotiate for higher pay or better working conditions. They know that the noncompete they’ve signed has limited their options for alternative employment. This can result in lower salaries and benefits for employees, which can have a significant impact on their financial wellbeing and quality of life. This is only a benefit for employers.

Third, noncompete agreements create a power imbalance between employers and employees. Employers who require employees to sign noncompete agreements hold a disproportionate amount of power and influence over their employees. This is especially true,  if an employee is in a specialized or field with high-demand. This power imbalance can make it difficult for employees to push back against unfair treatment or to advocate for their own rights and interests. Again, a benefit for employers.

Fourth, noncompete agreements stifle innovation and entrepreneurship. If employees are unable to leave their current employer and start their own businesses or work for competitors, this can limit the flow of ideas and talent within an industry. This can ultimately harm the industry as a whole by limiting the creation of new products and services, as well as the growth and development of small businesses. Again, a benefit for employers – mainly big business.

Finally, noncompete agreements are harmful for low-wage earners and entry-level workers. These workers are the most vulnerable and lack the bargaining power or resources to negotiate the terms of their employment, including noncompete agreements. And these days, employers are attempting to get away with noncompete agreement in every form of employment.  As a result, employees may find themselves trapped in lower paying jobs with limited opportunities, making it difficult for them to improve their financial situation. Again, a big benefit for employers.

Have no doubt that noncompete agreements hurt the workforce. While noncompete agreements may be a plus for big business, employees should know that employers using these agreements are not looking out for their workers. The company is looking out for the company.  If you have questions about your noncompete agreement, we have qualified attorneys available for consultations. Before committing to your ball and chain get the answers you deserve.

Maaz Asif Austin Trial Attorney

It is my pleasure to join the law offices of Wiley Walsh PC as its newest attorney. I have always dreamed of being a lawyer who fights for the little guy, helping employees get the compensation they are due. I take my responsibilities very seriously, as I have a duty to zealously defend the interests of my clients.

Simply put, worker’s rights is an issue very dear to my heart. Which is why I am deeply concerned with recent bills introduced in the Texas legislature. These bills, if passed, would limit the ability of cities to enact their own labor laws, making it much harder for workers to seek justice when their rights have been violated.

One of the most troubling bills, Senate Bill 130, would preempt local governments from passing ordinances that regulate scheduling practices by private employers. For instance, Austin would be left unable to enforce its Fair Workweek ordinance which requires employers to give workers advance notice of their schedules and pay them for last-minute schedule changes. This law helps workers balance their work and personal lives and provides them with some predictability in their work schedules. If SB 130 passes, however, this law and others like it would be rendered toothless.

Two other concerning bills are House Bill 121 and Senate Bill 563, which would prohibit cities from enacting ordinances that require employers to provide paid sick leave to their employees. This bill would overturn existing laws in Austin, San Antonio, and Dallas that mandate paid sick leave. Without paid sick leave, workers would be forced to choose between going to work when they are sick or losing a day’s pay, which is a choice that no worker should have to make. This disproportionately affects low-income workers, who cannot afford an unpaid day off.

These bills are just the latest examples of the Texas government’s attempts to preempt local labor laws. In 2019, the state passed a law that prohibited cities from passing ordinances that raise the minimum wage above the state level. This law has already had a significant impact on workers in cities like Austin and Dallas, where the cost of living is higher than the rest of the state.

At Wiley Walsh PC, we believe that workers deserve to be treated fairly and with respect. They should be able to count on their employers to provide them with a living wage, safe working conditions, and protections from discrimination and harassment. When cities pass labor laws to protect basic rights, it is the responsibility of the state to support these efforts, not undermine them.

We urge the Texas legislature to reject these bills and instead focus on protecting workers’ rights and strengthening labor laws. We will continue to fight for the rights of workers and stand up for justice in the face of any attempts to erode these fundamental protections. Should you have any concerns about your employer, contact me in Austin, or one of my talented colleagues in Houston or Dallas and we’ll fight for your rights.

Further Reading

Alex Nguyen & Samantha Aguilar, The Texas Tribune, Texas cities have adopted ordinances to benefit workers. Sweeping legislation could roll many back., (Mar. 16, 2023), Retrieved from: https://www.texastribune.org/2023/03/16/texas-cities-labor-ordinances/

Mike Christen, Austin Business Journal, Do Texas cities’ employment laws constitute vital protection or absurd ‘patchwork’? Debate rages at Capitol, (Apr. 7, 2023), Retrieved from: https://www.bizjournals.com/austin/news/2023/04/06/texas-legislature-reviews-employment-changes.html

Shaleigha Shepard
Shaleigha Shepard Trial Attorney

Within the past years we have seen a surge in awareness concerning workplace harassment and discrimination, but many workers still grapple with identifying and combating a hostile work environment.

Under Texas laws, a hostile work environment occurs when an individual or group of individuals’ actions or behavior creates an intimidating, offensive, or abusive atmosphere for another worker. Such actions could stem from the victim’s race, gender, religion, age, disability, or any other protected characteristic.

Instances of hostile work environment may include derogatory remarks or slurs, unwanted physical contact, unsolicited advances, offensive gesticulations or jokes, or any other forms of harassment or discrimination. It’s worth noting that a single event might not suffice in establishing a hostile work environment, but recurrent incidents or a pervasive pattern of conduct could contribute to a hostile work environment.

In Rogers v. City of Houston, the plaintiff, a police officer, alleged that she was subjected to a hostile work environment due to her gender. She presented evidence that she was subjected to severe and pervasive harassment, including sexual comments and touching, offensive jokes and cartoons, and being subjected to more difficult and dangerous assignments compared to her male counterparts. The court held that the plaintiff had presented sufficient evidence to show that she was subjected to severe and pervasive harassment that altered the terms and conditions of her employment. The court further held that the City of Houston was liable for the hostile work environment as it failed to take prompt and appropriate remedial action in response to the plaintiff’s complaints.

If you believe that you’re working in a hostile work environment in Houston, Texas, you have several options to address the situation. Firstly, you can report the behavior to your supervisor, the HR representative, or any designated person within your organization. It’s essential to document any occurrences of harassment or discrimination and maintain a record of the time, date, and parties involved.

Should your employer fail to address the issue, you may file a complaint with the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC). These agencies will investigate the complaint and could provide remedies, including back pay, reinstatement, or compensation for damages.

It’s imperative to know that you’re protected against retaliation for reporting harassment or discrimination in the workplace. Retaliation could manifest in the form of demotion, termination, or any adverse employment action. If you experience any retaliation for reporting a hostile work environment, you can file a separate complaint with TWC or EEOC.

Apart from legal remedies, you can take some personal steps to address a hostile work environment. This includes talking to the person(s) involved and asking them to stop the behavior. If this doesn’t work, you can seek support from your supervisor, HR representative, or any trusted person within your organization.

Additionally, you can leverage external resources such as counseling services, employee assistance programs, or legal representation. These resources provide expert guidance on how to handle a hostile work environment and can help you file a complaint or take legal action.

Employers have a responsibility to prevent and address hostile work environments in Houston, Texas. This could entail providing training to employees and supervisors on harassment and discrimination, creating policies and procedures for reporting and addressing complaints, and fostering a culture of respect and inclusivity in the workplace.

Employers who neglect to address a hostile work environment could face legal consequences such as fines or sanctions and may be liable for damages. It’s in the best interest of employers to take swift and resolute action to tackle any harassment or discrimination complaints and create a safe and respectful workplace for all employees.

A hostile work environment can have severe repercussions for employees. You should take the necessary steps to report any incidents of harassment or discrimination and seek support from legal or external resources. Employers must take proactive steps to create a safe and respectful workplace for all employees and prevent hostile work environments. By working together, we can foster a culture of respect and inclusivity in the workplace and ensure that all employees are treated with dignity and respect. If you or anyone else you know have questions regarding a hostile work environment or steps to take in response to it please call me, Shaleigha Shepard, at Wiley Wheeler P.C.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Charter schools have become an increasingly popular alternative to traditional public schools in Texas and across the United States. But one question that has been raised is whether charter schools are considered arms of the state for, among other things, legal immunity purposes. In Texas, this question has been particularly controversial, with arguments on both sides of the debate.

The idea of charter schools originated in the 1990s as a way to provide more choices and flexibility in education. In Texas, charter schools are publicly funded but operate independently of traditional public schools. They are governed by a board of directors and are subject to many of the same laws and regulations as traditional public schools. However, they have more freedom in areas such as curriculum and staffing.

Some argue that because charter schools are funded by public money and are subject to many of the same laws and regulations as traditional public schools, they are effectively arms of the state. This argument is based on the idea that charter schools are essentially government entities that have been given more flexibility than traditional public schools.

Those who support this argument point to several factors that they believe support their position. For example, charter schools in Texas are required to follow the same academic standards as traditional public schools. They must also administer the same standardized tests and report their results to the state. Additionally, they are required to comply with many of the same state and federal regulations as traditional public schools.

Furthermore, charter schools in Texas are subject to oversight by the Texas Education Agency (TEA), which is responsible for ensuring that they are in compliance with state and federal laws. The TEA can revoke a charter school’s charter if it fails to meet certain standards.

On the other hand, those who argue that charter schools are not arms of the state point to the fact that they operate independently of traditional public schools. They are run by private organizations, not the government. They also argue that charter schools provide a valuable alternative to traditional public schools, particularly for students who are not succeeding in those schools.

Charter school supporters also point out that charter schools are not funded in the same way as traditional public schools. While they receive public money, they do not receive funding from property taxes, which is the primary source of funding for traditional public schools in Texas. 

However, despite the above, a recent Fifth Circuit case has actually answered this question for immunity purposes.  And the answer, as I predicted in a CLE presentation I did back in 2021 is no.   See Springboards to Educ., Inc. v. McAllen Indep. Sch. Dist., No. 21-40333, ___ F.4th ___, 2023 WL 2401349, at *3–6 (5th Cir. Mar. 8, 2023).  In that case, the Fifth Circuit examined the Clark factors as they relate to charter schools in Texas.  The Fifth Circuit found that the factors weighed against immunity.  Id. at 6 (“In sum, factors one and three favor sovereign immunity while factors two, four, five, and six do not. Balancing all the factors, and giving greater weight to factor two, we conclude that IDEA is not an arm of the state and does not share in Texas’s sovereign immunity.”).

This makes sense.  A private company should not be afforded the same immunity as the State of Texas.  

If you believe you have been discriminated against, please contact an attorney to discuss possible options.  The attorneys at Wiley Walsh, P.C. routinely represent employees of Charter schools in discrimination cases.  Consults can be booked online at www.wileywalsh.com or by calling our office at 512-271-5527.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

On January 5, 2023, the Federal Trade Commission has published a proposed regulation that would in essence bring non-competes to an end. Under this new law an employer would be prohibited from entering into an agreement with its workers “that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.” Specifically, this proposed law would prohibit employers from entering or even attempting to enter into non-compete agreements, maintaining a non-compete agreement, or representing to a worker that they are subject to a non-compete agreement unless it has a good faith basis to do so. Of pinnacle importance is the fact that this proposed law has a retroactive effect that would mandate that employers rescind any non-competes it may have with its work force within a certain period of time. 

Moreover, in order to ensure that an employer would not be able to bypass this new law by simply pigeonholing a non-compete into another provision of their agreement, the FTC has proposed the adoption of a “functional test.” In essence this test would measure whether the provision would prevent a worker from seeking employment elsewhere after they leave their current employer. The proposed law outlined two examples in which this may occur. First, a non-disclosure agreement that is drafted in such a way that it would preclude a worker from seeking employment in the same field, Second, a contractual term in which a worker is required to pay for training costs if the worker’s employment is terminated before a specific period of time. 

Lastly, this proposed law would preempt any state laws, unless they give greater protections against non-compete clauses. This means that states such as Texas, which allow non-competes, would be unable to continue with the practice. 

In short, this is a fantastic step in the right direction. It is estimated that roughly one in five American workers are subject to a non-compete. This is despite the fact that some states like California have long banned their implementation. Additionally, the FTC has estimated that passing this proposed law would increase wages by nearly $300 billion dollars a year and expand the career opportunities for about 30 million Americans. 

As an attorney that has defended many employees from alleged breaches of non-competes this is a welcomes sight. Often times, non-competes are in place merely to stifle the mobility of the workers. In Texas, these provisions are often times written in an overbroad manner that basically freezes workers out of particular industry. While these sorts of clauses are not allowed under the Texas Business Code, since Texas law mandates that court shall rewrite the agreements for the employers if they are deemed invalid, employers have little incentive to crafting narrowly tailored non-competes. Moreover, since the threat of litigation and forcing a worker to pay thousands of dollars in legal fees to defend a case is always present, it could be a situation that the employer can have their way without winning in court. 

At the moment though, it is far too early to celebrate this development. The FTC has merely proposed this rule, and it has opened a 60-day period where it seeks public comments on this proposed rule. Already many businesses have begun flooding the FTC with their disdain over this proposed rule, and a full-fledged effort to crush it have started. This is not even taking into consideration the legal challenges that will occur if this proposed rule passes. 

There are many times where on is able to express and have their voices heard like with voting. Here, we are presented with another such example. In order to keep striding towards a more equitable workplace, these types of protection are invaluable. That is why I believe that is important to have your voices heard and comment in favor of this proposed law. This can be done online at https://www.regulations.gov/docket/FTC-2023-0007/document.

Finally, at this moment, non-competes in Texas are still valid and enforceable. If you have any questions as to what your non-compete means, it is important to contact an attorney that specializes in employment law. Here, at Wiley Walsh, P.C. we specialize in labor and employment law. Feel free to contact us for a consultation. 

Harjeen Zibari Trial Attorney

Have you been working on your March Madness bracket? I’m proud to announce that I’m participating for the first time in my life and chose brackets entirely based off of how unsettling each team’s mascot is. I’m really excited to see how this shakes out.

But such an exciting time for college basketball also brings issues of college athlete compensation to the forefront of an employment lawyer’s mind. Only very recently have college athletes been afforded additional protections and considerations under the law that acknowledge the amount of labor they provide to the NCAA. College athletes are not quite designated as employees, but maybe that door is opening after the NCAA v. Alston case. However, it’s a very important note that this is technically an anti-trust case, not an employment case. Anti-trust is an area of (mostly federal) laws that regulate the conduct and organization of business to promote competition and prevent monopolies, but discussions about monopolies and industries necessarily require conversations about the workers that fuel them. 

The NCAA v. Alston case has been making headlines in the world of college athletics since it was first filed back in 2014. The case centers around the question of whether or not the NCAA’s rules regarding compensation for student-athletes are in violation of federal antitrust laws. On June 21, 2021, the United States Supreme Court issued a unanimous ruling in favor of the plaintiffs, stating that the NCAA’s rules did indeed violate antitrust laws.

The case was initially filed by former West Virginia football player Shawne Alston and several other college athletes, who argued that the NCAA’s rules prohibiting student-athletes from receiving compensation beyond their scholarships were unfair and anticompetitive. To put things into perspective, the NCAA generates roughly $1 billion in revenue every year due to the efforts of its student athletes. However, it strictly regulates how athletes are compensated. The NCAA, for its part, argued that such rules were necessary to preserve the amateur status of college athletics and to ensure that student-athletes remained students first and athletes second. (Which is hard to believe, given the sheer amount of time and dedication it requires to be a student athlete, especially at the DI level). 

In its unanimous ruling in 2021, the Supreme Court rejected the NCAA’s arguments and stated that the organization’s rules had “significant anticompetitive effects” that violated federal antitrust laws. The Court did address whether college athletes should be paid salaries, but it did open the door for student-athletes to receive more benefits beyond their scholarships. For example, students can now be compensated for being featured in ad campaigns instead of being expected to provide free labor in that respect.

The implications of the NCAA v. Alston ruling are significant for college athletes and the world of college athletics as a whole. For one thing, it paved the way for student-athletes to receive more financial benefits, such as stipends for living expenses, or compensation for their name, image, and likeness. It could also lead to more competition among schools for top talent, as universities may be able to offer more attractive compensation packages to recruits.

At the same time, however, the ruling raises a number of questions about how compensation for college athletes should be structured and regulated. While some have called for a free-market approach that would allow athletes to negotiate their own deals with schools and sponsors, others worry that such an approach could create an uneven playing field and lead to exploitation of student-athletes.

Ultimately, the NCAA v. Alston case is just one chapter in an ongoing debate about the role of college athletics in American society. And with how uniquely American college sports are, for many this feels like unchartered territory. But should it be? It’s a basic premise that people should be paid for their work. The debates continues where people consider whether or not a full college scholarship is adequate compensation for the amount of work student athletes do on behalf of the NCAA.

College athletics is a strange animal in the field of labor and employment. Put very plainly, federal and state laws dictate that you must receive for work done. Are you in a wage dispute with your employer? Contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today.

Shaleigha Shepard
Shaleigha Shepard Trial Attorney

Cats paw theory is a legal doctrine used in employment law that holds employers accountable for discriminatory actions of their employees, even if the employer had no discriminatory intent. This theory has been applied in various employment law cases in Houston, Texas, and has significant implications for both employers and employees.

The term “cats paw” originates from an Aesop fable where a monkey convinces a cat to retrieve chestnuts from a fire, only for the monkey to eat them all, leaving the cat with burned paws. In the employment context, the term refers to a situation where an employer is burned by the actions of an employee, who is influenced by a discriminatory motive.

Under cats paw theory, an employer can be held liable for the discriminatory actions of an employee if the employee’s actions were motivated by discriminatory intent, and the employer was aware of or should have been aware of the discriminatory motive. This can occur even if the employee did not have decision-making authority and was not the ultimate decision-maker in the employment action.

For example, if a supervisor harbors discriminatory intent towards a particular employee and convinces a decision-maker to take adverse employment action against the employee, the employer can be held liable for discrimination, even if the decision-maker was not aware of the discriminatory motive. The supervisor’s discriminatory motive can be imputed to the employer under the cats paw theory.

Cats paw theory is particularly relevant in cases involving allegations of discrimination, retaliation, or wrongful termination. For example, if an employee is terminated due to a negative performance review that was influenced by a supervisor’s discriminatory motive, the employer can be held liable for discrimination, even if the decision to terminate was made by someone who was unaware of the discriminatory motive.

In Houston, Texas, the cats paw theory has been applied in various employment law cases. One notable case is Smith v. Continental Casualty Co., where an employee was terminated due to negative performance reviews that were influenced by her supervisor’s discriminatory motives. The employee filed a lawsuit against her employer, alleging that the employer was liable for discrimination under the cats paw theory. The court ultimately found in favor of the employee, holding that the employer was liable for discrimination because the supervisor’s discriminatory motive influenced the termination decision.

Another case that illustrates the application of the “Cat’s Paw” theory in Houston, Texas is Delaval v. City of Houston. In this case, a firefighter alleged that he was subjected to racial discrimination by his supervisor, who gave him a poor performance evaluation and recommended that he be demoted. The firefighter filed a complaint with the EEOC, alleging race discrimination and retaliation.

The city argued that it was not liable for the supervisor’s actions because he was not the decision-maker in the firefighter’s demotion. However, the court found that the supervisor’s actions influenced the decision to demote the firefighter, and the city knew or should have known about the discrimination but failed to take action to prevent it. Therefore, the city was held liable under the “Cat’s Paw” theory. The court awarded the firefighter back pay, compensatory damages, and punitive damages.

In conclusion, cats paw theory is a legal doctrine that holds employers accountable for the discriminatory actions of their employees, even if the employer had no discriminatory intent. This theory has significant implications for employers and employees in Houston, Texas, and across the United States. Employers must be vigilant in preventing discriminatory behavior by their employees and taking corrective action when discriminatory motives are identified. Employees who believe they have been subjected to discrimination or retaliation should consult with me, Shaleigha Shepard, or any other attorney at Wiley Wheeler, P.C. to determine their legal rights and options.

Harjeen Zibari Trial Attorney

There is a general understanding that the law affords certain protections for pregnant people in the workplace. Most notably, the Pregnancy Discrimination Act prohibits discrimination in the workplace on the basis of pregnancy, childbirth, or related medical conditions. The Pregnancy Discrimination Act was passed in 1978 as an amendment to Title VII of the Civil Rights Act of 1964, which is the same law that protects employees against discrimination for sex, race, national origin, or religion.  

The Pregnancy Discrimination Act of 1978 protects pregnant people as well as people who have just given birth. The Pregnancy Discrimination Act requires employers to treat pregnancy-related conditions the same as other medical conditions. Therefore, employers must reasonably accommodate pregnant or recently-pregnant people with conditions related to pregnancy, such as morning sickness, back pain, or needing to pump. Examples of reasonable accommodations employers may offer to their pregnant or recently-pregnant employees include providing more frequent restroom breaks, modifying work duties, or providing a temporary leave of absence.  However, it is important to note that employers are prohibited from forcing pregnant employees to take leave if they are able to perform their job duties with reasonable accommodations such as the ones just listed. 

Additionally, the Pregnancy Discrimination Act prohibits employers from denying employment opportunities to people based on their pregnancy status, such as refusing to hire pregnant candidates or denying promotions to people who have recently given birth. Furthermore, employers are prohibited from asking candidates during job interviews (or any time during the hiring process) if they are pregnant or are planning to become pregnant.

Furthermore, employers are prohibited from making hiring decisions based on pregnancy status, just as they are prohibited from making hiring decisions based on race, sex, national origin, or religious preference. 

But sometimes a pregnancy affects a person’s life in more pervasive ways, giving rise to serious health complications. This begs the question, is pregnancy considered a disability under the law? 

The short answer is that pregnancy alone is not considered a disability under Texas state law or federal law. However, the Americans with Disabilities Act does afford protections for pregnant employees who experience disabilities that arise out of pregnancy. In other words, if pregnancy complications arise to the level of a disability under the ADA, that employee is afforded ADA protections. But an ordinary pregnancy itself is not considered a disability under the ADA.

A recent case out of the Western District of Texas examined this issue closer. In Hernandez v. Clearwater Transportation, Ltd., the Court found that the pregnant employee was indeed a qualified individual with a disability under the ADA because her pregnancy-induced condition, hyperemesis gravidarim, affected her daily life in such a way that it ought to be afforded legal protection as other disabilities under the ADA. To put it simply, if a pregnancy induces a serious illness or medical condition, it may rise to the level of a legally-protected disability. 

Once afforded ADA protections, a pregnant person is entitled to request reasonable accommodations in the workplace, and their employer must engage in the interactive process to furnish a reasonable accommodation. Furthermore, a person may not be retaliated against for requesting reasonable accommodations, using reasonable accommodations, or taking time from work to treat their disability. 

In sum, the law protects pregnant people in the workplace in a variety of ways. Do you believe you’ve been discriminated against due to your pregnancy status or a disability arising out of pregnancy? Contact one of our talented Texas Employment Lawyers today for a consultation. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Addiction is a complex issue that affects millions of people in the United States. It is a chronic condition characterized by compulsive drug-seeking behavior and the inability to control drug use despite negative consequences. Addiction can impact all areas of a person’s life, including their relationships, work, and health.

In recent years, there has been a growing discussion about whether addiction should be considered a disability under the Americans with Disabilities Act (ADA). The ADA is a federal law that prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, and housing. It also requires employers to provide reasonable accommodations to employees with disabilities.

However, the ADA does not specifically list addiction as a disability. Instead, it defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” Major life activities include things like walking, seeing, hearing, and working. Addiction does not fall neatly into any of these categories.

Despite this, some individuals and organizations have argued that addiction should be covered under the ADA. They point to the fact that addiction is a chronic condition that can significantly impact a person’s ability to work and perform other daily activities. They also note that addiction can be caused by a variety of factors, including genetics, trauma, and environmental factors, and that it is often accompanied by other mental health conditions such as depression and anxiety.

One of the main arguments for including addiction as a disability under the ADA is that it would provide greater protections for individuals struggling with addiction. If addiction were classified as a disability, employers would be required to provide reasonable accommodations for employees with addiction, such as time off for treatment or modified work schedules. This could help individuals with addiction maintain their jobs and prevent discrimination in the workplace.

Another argument for including addiction as a disability is that it would help reduce the stigma associated with addiction. By recognizing addiction as a disability, society would be acknowledging that addiction is a legitimate medical condition that requires treatment and support. This could help reduce the shame and stigma that often prevent individuals with addiction from seeking help.

However, there are also some arguments against including addiction as a disability under the ADA. One concern is that it could create a slippery slope where any behavior that is harmful to a person’s health could be considered a disability. For example, some argue that obesity or smoking could be considered disabilities under this definition, which could put a strain on employers and the healthcare system.

Another concern is that including addiction as a disability could lead to increased drug use. Some argue that if addiction is viewed as a disability, it could send the message that drug use is acceptable or inevitable for certain individuals. This could lead to more people using drugs and potentially developing addiction.

Despite these concerns, many experts believe that addiction should be considered a disability under the ADA. They point out that addiction is a chronic condition that can significantly impact a person’s ability to work and perform daily activities. They also note that addiction is often accompanied by other mental health conditions that can further impair a person’s functioning.

Furthermore, including addiction as a disability under the ADA could help reduce the stigma associated with addiction and provide greater protections for individuals struggling with addiction. It could also encourage more employers to provide accommodations for employees with addiction, which could help prevent discrimination and promote recovery.

The question of whether addiction should be considered a disability under the ADA is a complex one. While addiction does not neatly fit into the current definition of a disability, many experts believe that it should be included due to its impact on a person’s ability to function and the potential benefits of greater protections and reduced stigma. Ultimately, the decision of whether to include addiction as a disability will require careful consideration and discussion among policymakers, advocates, and the general public.