Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: 

 While many individuals are familiar with how overtime calculations work, this calculation is often times made more difficult in the case of tipped employees. In this blog, I am to shed some light in some of the most often seen errors that are seen by both employers and employees in calculating overtime rates. 

Most, if not all, people are aware of the requirement imposed by the Fair Labor Standards Act (“FLSA”) that all covered employers must pay their employees a minimum wage of $7.25 for every hour worked. Moreover, most people are familiar with the fact that if you are a tipped employee an employer is able to take what is often referred to as a “tip credit” whereby an employer is allowed to pay an employee as little as $2.13 an hour. This is of course with the assumption that the employee in question is still making at least $7.25 an hour after the total sum of tips they receive are taken into account. 

 The inquiry with tipped employees does become murkier with regards to what is the proper overtime rate. Under the FLSA overtime is paid at a rate of time and a half of an employee’s regular rate, but with tipped employees this calculation often leads to various errors. For example, some employers attempt to calculate their tipped employee’s overtime pay based on their tip credit rate of $2.13 an hour. In other words, some employers claim that a tipped employee’s overtime rate is only $3.20 an hour. This is incorrect. On the other hand, some individuals believe that the true regular rate at which overtime is calculated is whatever their hourly rate with tips included is correct. This means that if on average an employee makes $10 an hour after tips, their overtime rate should be $15 an hour. This is also incorrect.

 The Department of Labor (“DOL”) has issued regulations that the actual regular rate at which a tipped employee’s overtime pay is calculated is actually $7.25. Indeed, under 29 C.F.R. §531.60, any tips received by an employee in excess of the tip credit need not be included in the calculation of the regular rate for overtime purposes. U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5. This means that no matter how many tips an employee receives, the overtime rate owed to them by the employer for hours worked over 40 is still only $10.88. This of course applies only to payments that are considered tips under the FLSA.

 A major, and often overlooked, payment that is not considered a tip are services charges. Service charges are defined as compulsory charges that are paid to the employer and not the employee. Nonetheless, often times the employer provides these payments to its employees. When that occurs the DOL has stated that this amount must be used in calculating the regular rate of an employee for overtime purposes. 

 To illustrate all of this, the DOL has provided the following example:

 Total Straight Time Wages: 

·      18 hours worked as a server × $7.25 per hour ($2.13 cash wage + $5.12 tip credit) = $130.50 

·      3 shifts worked as a bartender × $75.00 per shift = $225.00 

·      $130.50 + $225.00 + $160.00 (service charges)3 = $515.50 (total straight time pay) 

 Regular Rate of Pay Calculation: • 

·      $515.50 (total straight time pay) / 42 (total hours worked) = $12.27 (regular rate of pay) 

 Overtime Pay Due: 

·      $12.27 (regular rate of pay ) × .5 (half-time due for all hours worked over 40) × 2 (overtime hours) = $12.27 (overtime premium due)

 U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5

 As can be seen above, it is not always crystal clear how to go about calculating one’s overtime. This is especially true if you are a tipped employee. That is why it is it is imperative to seek out an attorney that specializes in employment law to assist you if you feel you are not being adequately compensated for your work. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys. 

 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When it comes to employment in the state of Texas, it is governed by the doctrine of at-will employment. This means that for many employment disputes, employees will have no recourse. There are occasions when businesses hire or promote bad employees into supervisory or management positions. There are occasions when supervisors and management fail to enforce or follow company policies. However, it would be impossible for courts to monitor and dictate all of the daily operations of each and every company nor does the law allow it. What the courts are allowed to do is hear and protect the rights that are actually given to employees under various laws when an employer has engaged in unlawful conduct.  What is unfair, unprofessional, or unethical conduct does not always equal unlawful.  

Where the law fails to protect employees, it is important for companies to have human resources departments to enforce policies and to ensure fairness. Where the law fails to protect employees, smart business operations make it essential for companies to have strong leadership in place willing to do the right thing. This is not because the law dictates, because it often does not, but because good business practices, professionalism, ethics, and the desire to retain good and hardworking employees should be motivation enough.  

Yet, what happens to employees when companies don’t make smart business decisions and throw professionalism and ethics out the window?  At-will employment means there may be no law that stops employers from making bad decisions that affect their employees and businesses.  At-will employment may mean that hardworking employees may have no legal claims to pursue if they are wrongfully terminated. Nevertheless, at-will employment also means that hardworking employees have the right to leave when they have endured all they can tolerate.  Employees have the right to take their talents to employers that will value them.

Sometimes it can be difficult for an employee to decide what to do when their working conditions have become untenable. They may have confusing feelings or lingering questions.  It could be a manager that treats them differently and holds them to different or impossible standards. Is this treatment based on some discriminatory reason or is it a situation where the company has made a poor hiring or promotional decision?  An employee may voice a complaint to human resources and feel they are facing retaliation after having made that complaint. Did the employee engage in legally protected conduct or did the employee make a complaint that’s not protected under the law?

When an employee has lingering questions about their treatment at work and is deciding what their next step should be – staying to fight or walking away – they often want to know and understand their rights.  When an employee has questions, our employment attorneys are available for consultation.  

A consultation with an attorney does not ensure that a legal claim follows. However, a consultation with a qualified employment attorney affords an employee an opportunity to discuss their concerns when they are: (1) feeling that something is not right at work and that they are being treated differently for some reason or another; (2) wanting to know how to properly voice their complaints to their employer; (3) when they are concerned about obligations they may have after quitting; or (5) wanting to know if there is a battle to fight with their employer or should they find something better and simply walk away.

Navigating employment law and employee rights can be difficult.  An early consultation may help an employee prepare and protect their rights.  An early consultation may even help an employee before they do something that jeopardizes any legal claims they may have. If the law does not provide protections, a consultation may help an employee make decisions about continuing their employment or taking their very valuable skills elsewhere.  

Colin Walsh
Texas Employer Lawyer Colin Walsh

We’ve taken another case up to the Supreme Court! In Robertson v. Intratek Computer, Inc., a pending petition for certiorari at the Supreme Court, we asked the Court to determine whether a government contractor or grantee may force an employee to arbitrate their whistleblower retaliation claims under 41 U.S.C. § 4712.  Our position is that the statute prohibits enforcement of arbitration agreements for such claims.  And the Executive Branch of the U.S. Government agrees with us!

As a preliminary matter, employment arbitration is a private, generally confidential, and secret judicial process involving a private judge paid who issues a binding decision that usually cannot be appealed to any court.  Studies show this process significantly favors employers.  Further, according to the attorneys general of all 50 states, the District of Columbia, and several U.S. Territories, the confidential nature of arbitration can be especially harmful.  For example, according to that collation, confidential arbitration of sexual harassment claims creates a “culture of silence that protects perpetrators at the cost of the victims.”    H.R. Rep. 117-234, 117th Cong., 2d Sess., 4 (report on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, January 28, 2022).

In our case, the statute at issue prohibits retaliating against  an employee of a government contractor, subcontractor, grantee, or subgrantee for reporting

gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.

41 U.S.C. § 4712(a)(1).  If the employee is retaliated against, the employee must report the retaliation to the Office of the Inspector General for the federal agency involved in the contract or grant.  

Under subsection (c)(2) of that statute, if the OIG does not grant relief or fails to take action within a certain period of time, the employee may file a lawsuit in federal court and request a jury trial.   41 U.S.C. § 4712(c)(2).  Under subsection (c)(7), “[t]he rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.”

We contend that the nonwaiver provision in subsection (c)(7) prohibits enforcement of an arbitration agreement because it would waive the right or remedy of a federal trial.  So far, not a single judge has agreed with us, including a magistrate judge, a district court judge, and three court of appeals judges.  But we are unbowed and unbroken because on April 11, 2022, the Solicitor General filed a brief on behalf of the United States saying that our interpretation is right: “Robertson is correct that Section 4712(c)(7) precludes a waiver of that judicial remedy, and the court of appeals erred in holding otherwise.”

This is an extremely important case because the decision could affect up to 6.1 million people who work for government contractors and grantees.  These employers receive billions if not trillions of dollars of taxpayer dollars.  Whistleblowers are, therefore, essential to exposing the fraud, waste, and abuse that may occur.  The importance of whistleblowers is not mere speculation.  In fact, since 1986, the government has recovered over $70 billion because of whistleblowers under just one statue, the False Claims Act.  See https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.

Given the Solicitor General’s position that the court of appeals erred, we are hopeful that the Supreme Court will vacate the appellate ruling and send it back to that court of appeals for reconsideration in light of the view of the United States.  Our petition is currently set for conference on May 12, 2022, which is when a decision could be made on whether to grant or deny cert.  Watch this space for updates!

To read the briefs filed by all of the parties including the Solicitor General of the United States, visit:

 https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/20-1229.html

Julie St. John
Texas Employment Lawyer Julie St. John

Grief comes in waves. It is something you can think at one moment you have accepted and at another moment overwhelm you entirely. It is something that is deeply personal and uncontrollable and can leave us feeling lost or alone. It can shock our sense of character and purpose. And just like the loss of a close loved one, the loss of a job is a big deal. For many of us, our job is a big part of our identity and self—especially if we have dedicated a substantial amount of time, energy, and effort to obtaining it and being good at it. It is not something to be taken lightly or diminished.

As an employment lawyer, I work with people every day who have experienced the loss of a job. I have personally seen how such a loss can impact their lives. It is deeply emotional. It can breed anger and resentment. It can be an incredibly difficult thing to accept for many reasons. These feelings are entirely justified no matter the situation. However, this feeling of loss, frustration, and unacceptance can be even more prevalent when it is not just the loss a job, but the loss of a job for an illegal reason. It is one thing if you are fired for actually doing something wrong. It is another thing entirely if you are fired because a protected characteristic (e.g. your race, religion, age, sex, national origin) or if you have been retaliated against for speaking up against illegal harassment or discrimination (i.e. you have engaged in some sort of protected activity expecting that you will not be targeted as a result). 

If you are facing illegal discrimination or retaliation, you should consult with an employment attorney right away. But, in addition to seeking legal counsel, you should never discount the importance of seeking professional help to cope with the emotional toll such a loss has taken as well. Although there is always the possibility of getting monetary compensation for the mental anguish you may experience because of illegal harassment, discrimination, or retaliation, money doesn’t fix things. It can help by taking the burden off of financial stresses that may exacerbate the situation, but it cannot fix the root of the problem. 

For example, think about losing a parent, spouse, or child. Would any amount of money make up for the loss? Would you trade millions of dollars just to have them back? I know I would. So, if you have lost a job, do not overestimate what a financial settlement will get you. It may give you some relief, but it cannot make you whole. In addition to seeking legal counsel, seek selfcare and support. It is only with both that the waves of grief will subside and allow true acceptance to emerge. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Justice Ketanji Brown Jackson’s nomination to the Supreme Court is notable for several reasons. Not only is Justice Jackson the first African-American woman to serve on the Supreme Court, but she is the only member of the Court to have served as a Federal Public Defender. Justice Jackson’s appointment to the Court carries several ramifications and potential changes to the Court that encapsulate decision making on everything from criminal law to constitutional law to property law. The most notable implication of Justice Jackson’s appointment to the Supreme Court, strictly for the purposes of this article, is her effect on employment law. Justice Jackson has had a varied history in employment law. This article will delve into that history and discuss what effect, if any, the appointment Justice Jackson will have on employment law. 

Justice Jackson has issued decisions that have benefited unions. For example, in AFL-CIO v. Federal Labor Relations Authority, Justice Jackson invalidated a policy change made by the Federal Labor Relations Authority that effectively restricted the scope of workplace changes subject to collective bargaining. Again, during her time as a trial judge, Justice Jackson invalidated executive orders made by President Trump that imposed temporal limits on contractual negotiations between federal agencies and unions, limited the ability of federal employees in union activities whilst at work, and made it significantly easier for federal agencies to terminate employees. These are but a few of many examples of Justice Jackson’s rulings in favor of unions.

Justice Jackson’s rulings are significant in that her appointment could lead to more laws that favor unionization. Given the recent developments with Amazon and Starbucks (to name but a few), the United States may be on the cusp of experiencing a new era in labor activism. Justice Jackson’s appointment could be enough to usher the U.S. into that era or, at the very least, incentivize workers to further strive for that new era.

However, Justice Jackson’s decisions on workplace discrimination and retaliation do tend to be more varied. For example, in Raymond v. Architect of the Capitol, Justice Jackson granted an employer’s motion for summary judgment in a case alleging race and national origin discrimination. In this case, a three-person panel failed to select a black candidate of Jamaican descent for promotion. Justice Jackson found no evidence of discrimination, despite the fact that one panelist had made comments regarding the plaintiff’s national origin. Justice Jackson reasoned that there was no evidence, other than the employee’s testimony, that the comments had been made. In contrast, in Park v. Hayden, Justice Jackson denied an employer’s motion for summary judgment on a national origin discrimination case because she reasoned that the factual inconsistencies and credibility determinations needed to be resolved by a jury rather than a judge.

Similarly, with retaliation claims, Justice Jackson has had a varied history. For example, in Manus v. Hayden, Justice Jackson denied a plaintiff’s retaliation claim due to the lack of a causal connection. In this case, an employer was providing an employee with baseless critiques. Justice Jackson found that because the critiques began  prior to the protected complaint being filed, there was no causal connection. However, in Alma v. Bowser, another retaliation claim, Justice Jackson found in favor of the plaintiff and wrote a scathing opinion directed at the defendant.

Justice Jackson’s appointment is historic for several reasons, and she will undoubtedly leave a lasting impact in Supreme Court rulings. Focusing on her significance in employment law, however, does carry more uncertainty. Though Justice Jackson will, more than likely, aid in the progression of union and labor laws, her decisions regarding workplace discrimination and retaliation remain ambiguous given her history. One will have to keep a watchful, but hopeful eye on the new appointee. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

During the 2020 United States presidential campaign, President Joe Biden pledged to appoint a Black woman to the United States Supreme Court should there be a vacancy.  Now, in 2022, this pledge may become a reality with Judge Ketanji Brown Jackson, who has a track record that proves that she is both qualified and capable.

I applaud Judge Jackson on her grace under pressure, as Monday, March 21, 2022, marked the beginning of her confirmation hearing before the Senate Judiciary Committee. The grind of the hearing process for Judge Jackson was magnified on Tuesday, March 22, with the beginning of what would become more than 20 hours of questioning from the committee, which ended Wednesday, March 23.

At the conclusion, the public may have been left with one final question: was this confirmation hearing really about Judge Jackson or was this confirmation hearing really political grandstanding?  

Judge Jackson was repeatedly questioned regarding sentences she handed down in a select few child pornography cases. However, legal experts weighed in on this and found that the sentences she delivered, when compared to a bipartisan subsection of district judges, were in line with that of other judges.  However, this was of no moment to committee members that continued this line of questioning.  

Additionally, Judge Jackson’s work as a public defender was made to be an issue, in particular her work on cases for detainees at Guantanamo Bay.  The committee members attacking her work on these cases, did not care about basic principles of the criminal justice system such as, “innocent until proven guilty” and an accused right to counsel.  

The attack on Judge Jackson had nothing to do with her qualifications, as her actions have unmistakably been in keeping with the actions of a great lawyer and judge.  As an attorney her job was to zealously advocate for her clients. As a judge, her duty is to be neutral and apply the law to the facts.  In both capacities, there is a duty to uphold and follow the law, which is exactly what her record shows she has done.  

The constant attacks were nothing more than political propaganda for those committee members, putting topics on rewind and repeat to support their claims of being tough on crime and high on national security.  Sadly, the attacks against Judge Jackson only affirmed for me the rights people are willing to trample in pursuit of what they believe is justice.  The ideology behind the attacks such as the ones aimed against Judge Jackson is the very reason the justice system fails when it does. Justice is about doing what is right, not always about doing what is popular.  

Judge Jackson was questioned extensively about critical race theory and responded that it doesn’t come up in her work as a judge.  She consistently outlined her approach to cases that come before her court, all with an aim on remaining impartial and applying the law.  However, committee members pressing this issue were not interested in her judicial competence and integrity. Clearly, this was nothing more than committee members using this platform to garner political support from people that have criticized critical race theory without even understanding what it actually is. Worse yet, they understand it, but want it erased because it shines light on the role race has played in framing the social institutions of America.

Judge Jackson was questioned regarding gay marriage, with opponents making it clear to their base that they remain opposed.  She was asked to define the word woman, an opportunity for committee members to bring gender politics into the arena.  She was questioned regarding court packing, a matter that is a policy issue for Congress.  It was a free-for-all for political grandstanding.

At the end of the day, aside for the historical significance of her nomination, Judge Jackson remains an outstanding selection for the U.S. Supreme Court.  

Established in 1789, with over 233 years of history, there have been 115 justices appointed to the U.S. Supreme Court.  Of those 115 justices, 108 have been White males.  Only two have been African American – the first being Justice Thurgood Marshall in 1967. Five have been women, the first being Sandra Day O’Connor in 1981. In 2009, Justice Sonia Sotomayor was appointed to the Court, becoming the third woman in the Court’s history, but the first woman of color—the first Hispanic, first Latina.

Black women are just as capable of shouldering the responsibilities bestowed upon the U.S. Supreme Court. Today’s America is drastically different than that of 1789, it is well past the time for our courts to reflect that difference in meaningful ways and this is yet another opportunity to do so.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Hark, frēndes! The feld flours blosme and the sǒnne shines.  “Tis spring.  And that means its Ren Fest season!

Right now, through April 24, just outside of Austin there is the Sherwood Forest Faire.  After that, head north by horse for three days and you will arrive at Scarborough Renaissance Festival.  If you are going to Scarborough Faire, can you please check in on one who lives there and see if my Cambric shirt with no seems or needlework is ready?

In honour of the season, I thought it might be fun to look at some of ye olde qui tam actions.  My colleagues have previously written much more useful and informative blogs on modern American qui tams, which enable individuals to sue government contractors and grantees on behalf of the government for fraud.  Mostly these involve Medicare and Medicaid fraud, but there are other types of fraud claims that can be brought through qui tam actions as well.  If you wish for such practical and helpful information because you think your employer is defrauding the government, let me refer you to the following two blogs:

Julie St. John’s 2021 blog, “When You Believe Your Employer is Defrauding the Federal Government – Protection from Retaliation, available at:

https://www.texasemploymentlawyer.com/2021/04/when-you-believe-your-employer-is-defrauding-the-federal-government-protection-from-retaliation/

Deontae Wherry’s 2020 blog, The False Claims Act: Suing Your Employer on Behalf of the Government, available at:

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

Essentially, a qui tam action is an action that allows enforcement of the law by an uninjured private citizen on behalf of the government in exchange for a share of the proceeds obtained in a successful prosecution of the claim.  You can find laws providing for such actions going all the way back to Ancient Rome.  For example, in the first century B.C.E., Cato the Younger both sued his political opponents and was sued by them for alleged violations of criminal law.  In the Sixth Century C.E., during Justinian’s reign, a private citizen could be prohibited from bringing a private enforcement action if that citizen had already brought two prior qui tam actions.

In 695 C.E., the King of Kent in England passed a law that prohibited work between sunset on Saturday and sunset on Sunday.  If you informed the authorities about someone who violated that law, you would be entitled to half of the healsfang, or fine, collected from that damnable overachiever who worked on the weekends as well as half of the profits form the labour that was done during that time.

In the fourteenth century, the English Parliament provided many avenues for qui tam actions as a way to ensure enforcement of the laws.  Here are a couple fun ones.

The 1331 law providing a qui tam mechanism to enforce aspects of the 1328 Statute of Northampton is relevant to the current faire season.  The Statute of Northampton, in part, regulated the length of time fairs could remain open.  However, both merchants and lords had incentives to keep fairs open longer.  Merchants obviously wanted to sell more product and the lords who hosted the fairs often collected tolls on the total merchandise sold at the fair.  So, to ensure compliance with the law, Parliament enabled private citizens to sue on behalf of the King and, as reward, receive a fourth of what was forfeited.  The penalty for violations was double the value of what was sold outside the permissible time for the fair.

In 1455, Parliament passed an Ordinance limiting the number of lawyers that could practice in the City of Norwich to two and in the counties of Norfolk and Suffolk to six each.  The preamble to this Ordinance is too good not to quote at length:

Whereas of Time not long past within the City of Norwich, and the Counties of Norfolk and Suffolk, there were no more but six or eight Attornies at the most, [coming] to the King’s Courts, in which Time great Tranquillity reigned in the said City and Counties, and little Trouble or Vexation was made by untrue or foreign Suits; And now so it is, that in the said City and Counties there be Fourscore Attornies, or more, the more Part of them having no other Thing to live upon, but only his Gain by [the Practice of] Attorneyship, and also the more Part of them not being of sufficient Knowledge to be an Attorney, which [come] to every Fair, Market, and other Places, where is any Assembly of People, exhorting, procuring, moving, and inciting the People to attempt untrue [and] foreign Suits, for small Trespasses, little Offences, and small Sums of Debt, whose Actions be triable and determinable in Court Barons; whereby proceed many Suits, more of evil Will and Malice, than of the Truth of the Thing, to the manifold Vexation and no little Damage of the Inhabitants of the said City and Counties, and also to the perpetual [Diminution] of all the Court Barons in the said Counties, unless convenient Remedy be provided in this Behalf.

Ordinance, 33 Hen. VI, ch. 7 (1455).  The Ordinance was enforced through a qui tam action by private citizens against any person who acted as a lawyer without proper admission to the King’s courts.

I could provide many more examples of historical qui tam actions, but I have a faire to get to!

I am heavily indebted to the following resources for the above blog post, which also provide great further reading!

  • R. Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. Rev. 539 (2000), available at: http://scholarship.law.unc.edu/nclr/vol78/iss3/2
  • Jonathon Rose, Medieval Attitudes Toward the legal Profession: The Past as Prologue, 28 Stetson L. Rev. 345 (1998),

available at  https://www.stetson.edu/law/lawreview/media/medieval-attitudes-toward-the-legal-profession-the-past-as-prologue.pdf

  • Middle English Compendium, https://quod.lib.umich.edu/m/middle-english-dictionary
Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: Determining whether an employee is able to be paid for time spent on call is a rather complex and fact intensive inquiry. Indeed, the absence or presence of a facts can be the difference in being owed thousands of dollars in unpaid wages. In this blog I aim to bring a bit of clarity to the issue. 

Many employers require their employees to be on call even after hours, yet they refuse to pay them for the time that these employees spent glued to their phones. For many salaried or exempt employees this is of no consequence. On the other hand, if you are a non-exempt hourly employee, you may be entitled for compensation for the time you spent on call. That is because even though you may not be working, the restrictions put on you may be to such an extent that an employer must pay you for that time under the law. 

 While state law does not squarely address the issue of when on call time can be compensable, the Fair Labor Standards Act and accompanying case provides some guidance. This inquiry though is not always a straightforward question. In fact, it is one that is rather fact intensive in nature. The critical question that one must answer about the time spent on call is whether “the employee can use the time effectively for his or her own purposes.” Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 676 (5th Cir. 1991)(internal citations omitted). In Bright the Fifth Circuit engaged in an analyzed of how much the freedom the employee had during the on call time. In interpreting this standard various courts have looked at if the employee is expressly forbidden from doing certain activities, traveling outside of a certain area, the amount of calls they receive a day, the interference from engaging certain leisure activities, and going out for social engagements. 

 To put it another way, the closer an employee is to being able to do what they normally would do if they were not on call the most likely that on call time is not compensable time. Conversely, the further away they are from being to engage in their normal activities, the more likely it is that the time they spent on call is compensable.

 Let’s put forth an example to illustrate the point. Let’s assume that an employee works 30 hours a week, but they are required to be on call for 20 hours a week for which he is not paid. If he is required to come in to work or perform work during the on call schedule, he is compensated adequately. But, when he is on call the employer has imposed a myriad of restrictions which include that he cannot be more than 15 minutes away from the work site, cannot leave his home unless it is an emergency, is unable to drink any alcohol, and cannot be engaged in any social activities. Under this scenario a court would most likely find that the time that he spent on call is actually compensable time. The reason for this is easy to see. It cannot be fairly said that the employee has a similar degree of freedom on his on call time that he does to his free time. Because of that the employee should actually be paid 40 hours at his regular hourly rate and 10 hours at his overtime rate a week. Week after week this amount can grow and become rather substantial. 

 While the example above is rather clear cut, the main take away should be is that these inquiries are very fact specific. In fact, courts have noted that they is rarely, if ever, is a bright line rule for these types of cases. Instead, the decision of whether on call time is compensable must be made on a case-by-case basis. That is why it is it is imperative to seek out an attorney that specializes in employment law so your situation can be adequately evaluated. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. If you feel like you should be compensated for your on call time, feel free to contact us to schedule an appointment with one of our attorneys. 

 

 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Recently, Belgium announced a labor reform allowing for a four-day work week. The reforms also provided workers the ability to power off work devices and ignore work-related messages without fear of retaliation. The aim of the reforms was to increase productivity and strengthen both people and businesses. The United Arab Emirates, Scotland, Iceland, Japan, and Spain are among the few others that have either incorporated or begun a trial phase to incorporate, a four-day work week. The trials of the four-day work week have largely been a success, with the workforce experiencing a rise in productivity and happiness. This raises the natural questions: why is the four-day week so unpopular and will it ever be possible in the United States?

Four-day work weeks are unpopular among employers for two primary reasons: tradition and trust. The former is the more obvious of the two. Originally, in 19th Century England, the six-day work week was the norm. This caused many Englishmen to use the seventh day (Sunday) to engage in festivities such as gambling and drinking. This generally caused “Saint Monday” to emerge in which large amounts of workers would be absent from the workplace to recover from Sunday’s merriment. Employers soon relented and provided employees with a half-day on Saturday as a trade-off for guaranteed attendance on Mondays.

It was not until 1908 that Saturday transitioned from a half-day to a full day’s rest when several American factories chose to accommodate Jewish workers in observance of Saturday sabbath. By 1929, with the emergence of the Great Depression, the five-day work week became cemented in American society. The reasoning was that shorter hours could remedy the increasing underemployment.

Now, nearly a century later, with mills and factories being replaced by advancing technology, we have maintained strict adherence to the five-day work week. The changing landscape seems to have no effect on the old ways. And, to be clear, it makes sense. Many companies who consider transitioning into the four-day work week must recognize the unfortunate fact that they would be placing themselves at a disadvantage against those that favor the five-day work week. Several employers would essentially be shooting themselves in the foot. Additionally, there are certain professions that require a five-day work week. One example can be found in the legal profession. Courts operate on a five-day schedule; therefore, law offices should follow suit lest they risk missing a deadline or a court date. With some professions, the five-day work week is ingrained in its functionality and it is nearly impossible to separate the two. The only solution seems to be major government-implemented structural reforms like those incorporated in Belgium.

Additionally, for the four-day week to be possible, employers must trust their employees to compensate for the additional time off with greater output in performance. This is no small task given the potentially deleterious effects this could have on a business. However, the aforementioned studies conducted in various countries along with the continuing developments that will take place in Belgium may be enough to assuage the concerns of some skeptics.

As it stands, the four-day work week seems unlikely in the United States. The five-day work week is culturally ingrained in our society and most employers would not willingly place themselves at a disadvantage to others who operate on the five-day work week. If it took a global pandemic to make many employers realize that remote work was possible, one can only wonder what calamity would be necessary to pull the United States out of the old ways and into the four-day work week.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Not cool.  On its face that violates the Equal Pay Act.  The Equal Pay Act is a federal law that states employees of one sex must be paid the same as employees of the opposite sex for the same job.  Here it is in legalese:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .

29 U.S.C. § 206(d)(1).  Perhaps your boss thinks that the jobs are not actually equal.  A lot of employers try to make that argument.  These employers point to granular differences in the job to claim they are not equal.  For example, recently, the University of Oregon tried to argue that tenured psychology professors did not perform work under similar conditions that required equal skill, effort, and responsibility because these professors taught different classes, oversaw different doctoral students, and managed different centers with funding from different sources.  Freyd v. Univ. of Oregon, 990 F.3d 1211, 1221 (9th Cir. 2021).  The 9th Circuit rejected that argument, saying all that is required a common core of tasks.  Id. at 1220-21.  If you want more details on this important case, I wrote a blog about it back in April 2021.  See  https://www.texasemploymentlawyer.com/2021/04/freyd-v-university-of-oregon-what-does-equal-work-mean-under-the-equal-pay-act/.  

But less assume that is not what your boss is basing the decision on because the jobs are equal.  If that is the case, then your boss must justify the unequal through one of the four affirmative defenses provided by the EPA.  An affirmative defense is most commonly a legal excuse.  When a party to a lawsuit asserts an affirmative defense, that party is often admitting that it engaged in the conduct alleged, but argues that it was legally justified, permissible, or excused.  IN the Equal Pay Act context, the employer is saying, yes my company pays the sexes differently for the same work, but that’s ok.

So, what are these affirmative defenses that allow unequal pay for the sexes?   

Unequal pay may be permissible if the unequal pay “is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”  29 U.S.C. § 206(d)(1).  These affirmative defenses are narrowly construed.  

Importantly, whichever affirmative defense is asserted must actually explain the wage gap.  In other words, the existence of one the systems or factors is not enough in and of itself to allow unequal pay.  For example, if a company claims that it uses a seniority system to determine pay, then that seniority system must explain the wage gap between a man and woman performing the same work.  If both have equal seniority or one has more than the other, then their respective pay must reflect that.

Regarding merit systems and systems based on the quantity/quality of production, these systems must be based on predetermined criteria that is communicated to the employees.  It is not enough for an employee to merely be aware that such a system exists.  Numerous cases have held that employees must know the contents of that system, which makes complete sense.  Simply knowing that a merit system or production system exists without knowing what the company considers in determining merit or production is pretty useless and would lead to highly subjective decisions, which are not permitted.  Additionally, these systems must be objectively and systematically administered by the employer.  In other words, the criteria cannot be selectively applied.

Regarding factors other than sex, these must be bona fide factors other than sex that are actually used to make pay decisions.  Here is how the Seventh Circuit put it, “The factor other than sex must also be bona fide. In other words, an employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.”  Fallon v. State of Ill., 882 F.2d 1206, 1211 (7th Cir. 1989).

There is a lot more to each of these affirmative defenses, but the key takeaway is that the affirmative defenses are narrowly construed and must meet certain standards and factors to be valid.  If you believe that you are not receiving equal pay for equal work, you should contact an employment law attorney to discuss your case.