Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

One of the most common things I hear during consultations is a worker telling me that they “do not have any evidence” of to support their story. They go on to elaborate that they have no documents, emails, or anything tangible to further their claim. While having documentation to support a claim is helpful, it is not the end all be all in a lawsuit. Indeed, a recent Fifth Circuit opinion outlines how a plaintiff’s own affidavit may be sufficient to get a case in front of a jury.

A week does not go by in which I am in a consultation and the potential client goes through all the facts of their case. They hit every possible element in a claim and then some. They bare their story, often with great emotion, only to end it all with a statement that goes along the lines of, “but I do not have any evidence to support any of this.” This is due to the common and nefarious misconception that only hard, tangible, documented evidence can be presented. Sometimes they even make the more distressing statement that makes it seem that they are under the impression that if their employer admitted to breaking the law they cannot win. These statements are incorrect.

On November 10, 2021, Fifth Circuit penned an opinion that goes a long way to establish that a plaintiff’s own words in the form of an affidavit may be sufficient to allow a plaintiff to get their case in front of a jury. In Guzman v. Allstate Assurance Co., the trial court dismissed a plaintiff’s case because in large part the plaintiff’s case relied on self-serving affidavits that were not supported by the record. In overturning this decision, the Fifth Circuit held that an affidavit written by the plaintiff, regardless of if it was self-serving, should not be discounted outright. Specifically, the court held that “affidavits and depositions may create fact issues even if not supported by the rest of the record.” While Guzman was not an employment case, the proposition of law for which it stands can easily be applied in the employment law context.

In fact, in Fracalossi v. Moneygram Pension Plan; Viad Corp.; & Moneygram International, Inc., the Northern District of Texas recently applied Guzman in the employment law context. Fracalossi, is a case that involved an employee’s cause of action against his employer under the Employee Retirement Income Security Act of 1974 (ERISA). In that case, the defendant argued that the court should grant summary judgment in its favor because the employee had failed to create a fact issue as it relates to actual harm. The court refuse to grant summary judgment because part of the calculation came in the form of that employee’s affidavit. Relying on the precedent set forth in Guzman, the court stated that “[t]he Court finds that the part of Fracalossi’s declaration addressing damages meets [the requirements set forth in Guzman] and is sufficiently non-conclusory to create a genuine dispute of material fact on the issue of actual harm.” As stated above, this shows courts’ willingness to expand upon the context in which Guzman found itself.

While it would be a bit premature to argue that Guzman is ushering a new era of how worker’s affidavits will be examined. Yet, it undeniably does provide a powerful tool for workers to bring forth their claims against employers. This is important because many times employees are at an informational disadvantage when compared to their employers. Often, they are shut out of their emails as soon as they are terminated. Many employers go through great lengths to paper that employees’ files with dubious claims and reports.

At the end of the day know that what you experienced at the workplace matters. What you saw and what you felt matters. For far too long have employers instilled this idea that unless there is a piece of paper that outlines exactly what you need you do not have claim. Yet, despite this new trend, much work still needs to be done to overturn this age-old misconception.

At the end of the day, to prevail there will need to be workers who are willing to speak up. Moreover, it will require attorneys that understand the law and are willing to fight for your rights. 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 have been wronged at the workplace. 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.

 

Colin Walsh
Texas Employment Lawyer Colin Walsh

In the classic Thanksgiving film Planes, Trains, and Automobiles, Steve Martin’s character meets Del Griffith, a salesman played by John Candy, at an airport.  In fact, Del is the director of sales, shower curtain ring division for American Light & Fixture.  He works hard at his job and he is good at it.  In one particularly memorable scene, he sells a bunch of shower curtain rings to various people by pitching them as earrings from the likes of Walter Cronkite, Diane Sawyer, Darryl Strawberry, and the “Grand Wizard of China back in the fourth century.”  

Since he spends all of his time outside the office and traveling the country selling shower curtain rings, he certainly must put in a lot of overtime.  Under the Fair Labor Standards, any hours over forty that a covered employee works must be compensated at 1.5 times the regular rate of pay.  Unfortunately, Del does not receive any benefit from the FLSA because he is not a covered employee.  Under the Outside Sales Exemption, Del is exempt from both the FLSA’s minimum wage requirements and overtime pay requirements.

So what is the Outside Sales Exemption?  The Outside Sales Exemption exempts certain kinds of salespeople from the minimum wage and overtime requirements of the FLSA.  In order for an employee to be considered an outside sales employee, the employee’s primary duty is making sales or obtaining orders/contracts from customers away from the employer’s place of business.  The classic example of outside salespeople are the door-to-door salesmen of yore, knocking on your door to sell vacuums, books, knives, and, in Del’s case, shower curtain rings.  It might seem silly to note, but the term “outside salesperson” does not necessarily mean that covers any salespersons working the open air.  For example, a Christmas tree salesperson works outside, but would not be considered an outside salesperson under the FLSA.  The term outside refers to being a way from the employer’s place of business.  That’s why a Christmas tree salesperson would not be an outside salesperson.  The Christmas tree salesperson is selling trees to customers on the Christmas tree lot, which is the employer’s place of business.  Likewise, a salesperson making calls form a call center would not be an outside salesman because that person is making the calls from the employer’s place of business.

While outside sales must be the “primary duty” it does not have to be the only duty.  As defined in the regulations, “primary duty” just means the “principal, main, major, or most important duty that an employee performs.”  29 C.F.R. § 541.700(a).  Moreover, an employee may be exempt even if that employee spends less than 50% of their time performing the primary duty.  According to the regulations, employees who spend more than 50% of their time doing exempt work will generally be exempt, but “nothing . . . requires that exempt employees spend more than 50 percent of their time performing exempt work.”  29 C.F.R. § 541.700(b).  The example the regulations provide is of a manager who directs and supervises employees maybe exempt even if that manager spends most of their time running the cash register, which is non-exempt work.  That is because their most important duty is management.  In the outside sales context, that means that even if a salesperson spends a significant amount of time creating itineraries for travel, filling out reports, updating catalogues, or making deliveries, the employee may still be exempt if their primary duty is selling products away from their employer’s place of business.

The final thing to note about the Outside Sales Exemption is that unlike the other exemptions, there is no salary requirements.  To qualify as exempt under the executive, administrative, or professional exemptions to the FLSA, an employee must generally receive a salary of $684 or more per week.  That is not true for outside sales employees.  There are no minimum salary requirements for such employees.  Luckily, as I stated before, Del is good at his job.  So that shouldn’t be an issue for him.

If you think you are not being properly paid your wages, you should talk to an experienced employment attorney, who can evaluate your case and potentially provide options.  The attorneys at Wiley Walsh, P.C. have experience in FLSA and unpaid wage claims and would be happy to discuss any potential case or issue you might have regarding the FLSA or unpaid wages.  In the meantime, you should definitely check out Planes, Trains, and Automobiles.  It’s great!  

Julie St. John
Texas Employment Lawyer Julie St. John

“[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination[.]” 42 U.S.C. § 12101(a)(1). Accordingly, Congress passed, and subsequently amended, the Americans with Disabilities Act (“ADA”) to prevent discrimination based on an individual having a disability, a record of a disability, or being perceived as having a disability. These protections include, but are not limited to, protection from discrimination in employment. 

Unfortunately, despite the fact that laws such as the ADA are in place to protect individuals with disabilities from discrimination, discrimination nonetheless occurs. Just because laws are in place to prevent discrimination, discrimination is not automatically eliminated. Laws are often violated. This is why it is important not only for these laws to be in place, but also for these laws to have robust enforcement mechanisms for those who have been discriminated against to seek justice when the laws are violated.

The ADA allows for individuals who have been discriminated against based on a disability in an employment context to file a lawsuit in court after they have gone to the appropriate government agency to exhaust their administrative remedies. However, sometimes employees who have been subjected to illegal discrimination and/or retaliation in the workplace based on a disability pass away before they get the opportunity to pursue any claims. Such a situation presents unique challenges to an employee’s estate. 

Can the estate pursue a claim under the ADA on the deceased employee’s behalf? 

Two things are clear. One, if a non-federal-sector employee files a charge of discrimination with the EEOC or a federal-sector employee files an EEO complaint, their claims are likely preserved upon death. See Guenther v. Griffin Constr. Co., 846 F.3d 979 (8th Cir. 2017). Two, if a federal-sector employee did not file an EEO complaint, that worker’s claims are likely not preserved upon death. See Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012) (“However, the court has found no case recognizing the authority of a deceased employee’s representative to initiate an administrative complaint on behalf of the deceased employee.”).

What is not clear is whether the claims of a non-federal-sector employee who has not filed a charge of discrimination with the EEOC are preserved. Relying on Wright, one might attempt to argue that the estate of a non-federal-sector employee does not have standing to purse a claim under the ADA on behalf of the deceased employee. However, there is better guidance from a state law case out of Florida. 

Under Florida state law, a deceased employee’s estate may still purse discrimination and/or retaliation claims even if the employee had not filed a charge of discrimination prior to death. See Cimino v. Am. Airlines, Inc., 183 So. 3d 1242, 1243 (Fla. Dist. Ct. App. 2016) (“As noted in Wright, Title VII provides the exclusive remedy for federal employee discrimination claims. Part of the rationale for dismissing the federal equal employment opportunity (“EEO”) complaint of the widower in Wright was the inability of the decedent to first exhaust administrative remedies with the EEO division of her agency. There is no such requirement for non-federal employees under either Title VII or the FCRA.”) (internal citation omitted).

As Congress intended the ADA provide broad protections for those who are discriminated against on the basis of a disability, logically an individual’s estate should have standing to pursue any claims after death regardless of whether the employee had initiated the process to exhaust any administrative remedies. Denying the estate’s ability to do so would go against public policy. Accordingly, when faced with such a situation, the courts should decide an estate has standing to pursue any claims regardless of when in the process an aggrieved employee’s death occurs. A failure to do so would run contrary to Congress’s intent to provide expansive protections and result in a failure of the system. 

If you have been discriminated against because of a disability, you should consult with an employment lawyer right away to start the process to make sure any claims you may have are protected. However, if you have a loved one who was discriminated against and passed away before he or she could pursue their claims, you may still have the ability to do so on their behalf. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

The current pandemic brought several changes to our work lives and brought about an important, but obvious, realization: we do not all need offices. Over the past year, countless businesses realized their workforce could perform just as efficiently, if not more so, from home. This development led to several changes in one’s quality life. For example, workers had more control over their schedules; they no longer had to deal with the commute to work; and they, for the most part, had more free time. The increased amount of free time, alongside the lessened level of scrutiny that comes with working remotely, has led many to begin considering working a second, third, or even fourth job. The opportunity to work another job remotely and attain a second stream of income is enticing, but what are the potential legal consequences to doing such a thing? This article will seek to answer this question.

If you are venturing into obtaining a second remote job, your very first task should be to review your employment agreement. When reviewing, your first inquiry should focus on the existence of a non-compete agreement. Non-compete agreements are clauses typically found within employment agreements that generally limit who you can work for during employment and after termination (for a set period of time). For example, most non-competes stipulate that an employed individual cannot work for a direct or indirect competitor of the company during employment and for a certain period of time after termination or resignation. The existence of a non-compete agreement could cause you to be liable for breach of your employment contract. In other words, your employer could (and probably will) sue you for breach of contract. If you find yourself under a noncompete agreement, then, before taking on your second job, you want to make certain that the new company you are working for is not engaged in the same business as your current employer and that you could not, even potentially, steal any of their clients.

Next, you want to make certain that in taking your new job, you would not be at risk for misappropriating trade secrets. For example, you should absolutely not use confidential information from your current employer to aid or benefit your new employer. You want to keep the work distinct and separate from each other. This means that you should not mix files and probably not perform both jobs out of the same laptop or device. Trade secret misappropriation is another area that will make you liable to be sued.

If you never signed an employment agreement, then the next item you would want to consider is the employee handbook. Your workplace will almost certainly have one. Your task should be to read through the entire handbook and make certain that taking another job, while employed, would not be against company policy. If there is a policy against taking a second job, then your employer will have good cause to terminate you. This would then make it significantly difficult to receive unemployment benefits, as the employer would more than likely have good cause to terminate you given that your actions were a violation of company policy (good cause for termination is often a legitimate reason for the Texas Workforce Commission to deny one their unemployment benefits).

Lastly, supposing you do not have an employment agreement and that your company does not explicitly forbid working multiple jobs, Texas is still an at-will state, meaning that you can be fired for any given reason that is not related to race, sex, sexual orientation, or any other protected status. Therefore, all things being equal, if you were to take on a second remote job, then your employer would have the discretion to terminate you for taking on the second job. In the absence of an employment agreement, this is more than likely the absolute worst action your employer could take against you. Thus, if you do decide to take on that second job, you must be prepared for the possibility that your current employer may find out and may terminate you.

It is not a crime to be overemployed. So long as you did not sign an employment agreement that binds you to a noncompete clause that applies to your new employer and do not share your company’s confidential information with your new, secondary employer, the company will more than likely not have a basis to pursue legal action against you. The question is whether you can tolerate the constant presence of a looming termination and whether you can truly jeopardize your health insurance and other benefits. That is a question that the law, unfortunately, cannot answer. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

“I was told that my braids were unprofessional.”

“I was told to cut off my locs.”

“I was told that my hair doesn’t fit the ‘company culture.’”

Ladies and gentlemen, race-based hair discrimination is still alive and well in 2021, and Black employees are being told these very things.

As people of color, we can find ourselves struggling with many aspects of our appearance trying to fit into the world’s persona of us. As a Black woman, I know I’ve struggled with decisions related to my appearance throughout my career. I know other Black Women have similar struggles. This is particularly true when it comes to decisions about hairstyles and our workplace culture.

Straight hair can be accomplished, but that is not “traditional” hair for me or my culture. My hair does not grow out straight, never has, never will. I cannot achieve straight hair without harsh chemical relaxers or harsh heat from straightening combs and flat irons.  If you’ve never used a straightening comb, or better yet been accidentally burned by one, you’ll never understand the pain and anxiety a person of color goes through when getting their hair done to achieve what the majority considers to be a “traditional” hair style. Now granted, I was burned because I moved when I should not have, but I’ve digressed.

The fact is that anyone of color feels the need to question whether they can wear their natural hair or culturally traditional hairstyles to work is the very reason why legislation such as the CROWN Act is important.

The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” “prohibits race-based hair discrimination, which is the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.” https://www.thecrownact.com/about

The 2019 Dove CROWN Research Study found that 80 percent of Black women feel the need to change their hair from its natural state just to fit in at the office, Black women are 50 percent more likely to be sent home from work because of their hair, and that Black women’s hair is 3.4 times more likely to be perceived as unprofessional. Furthermore, the study found that 32 percent of non-Black women never actually received corporate grooming policies at work, while only 18 percent of Black women could say the same.

Studies, such as the one conducted by Dove, reveals the judgments passed and the discrimination faced when Black women wear their natural hairstyles. Yet, this discrimination extends to Black women and men alike, both who are increasingly choosing to wear natural and protective hairstyles traditionally found in our culture.

Federal and state laws may prohibit some forms of hair discrimination, as it relates to race or national origin discrimination, but those laws do not go far enough. Courts tend to narrowly construe these laws allowing discrimination to continue. This is where the CROWN Act fills the gap.

To date, several states have signed the CROWN Act or similar legislation into law, with California leading the way in 2019. Since then, states such as New York, New Jersey, Virginia, Colorado, Washington, Maryland, Delaware, Connecticut, New Mexico, Nebraska, and Nevada have joined.

Sadly, Texas is lagging, the United States also as a whole lags. Our hope is that Texas State Representative Rhetta Andrews Bowers, U.S. Senator Cory Booker continue, and other lawmakers continue to push for this important legislation where it has not yet passed. Studies and continued discrimination show that it is necessary for providing equal opportunities and equal protection.

When employers implement policies that require employees to maintain “traditional” haircuts and styles, what does that really mean? Whose traditions are they applying? Is the definition of traditional inclusive of all cultures?

It is important for employers to understand that what’s traditional for one person is not traditional for another. Employers should also know that implementing policies related to appearance and having rigid adherence to a set of standards found commonly in one culture but not in others is bound to be exclusionary and discriminatory.

If you have faced discriminated because of your race, national origin, or even religion because of your hair, contact our lawyers for a consultation to discuss your options. No one should be required to change who they are by abandoning their culture or religion to adhere to traditional standards that don’t belong to them simply for the sake of equal opportunity.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Most people are familiar with an employer’s duty under the Americans with Disabilities Act to provide a qualified worker with a reasonable accommodation so that they are able to perform the essential job functions of their position. Yet, not as many people are aware that Title VII’s bar on religious discrimination also allows an employee to seek an accommodation for the their religious beliefs. While these two statutes allow for a reasonable accommodation, each have their own distinct requirements and burdens placed on both the employer and employee. In this article I will discuss some of the starkest differences and similarities between the ADA’s and Title VII’s requirements imposed on employers to provide a reasonable accommodation. 

Under the ADA an employee must generally inform their employer that they require a change in their current working condition due to a medical reason. This is what is called a request for a reasonable accommodation, and it is considered protected activity under the law. It is imperative to note that in making this request an employee is under no obligation to use any sort of magic words or even invoke the ADA. All that is required is that the employee inform the employer that they need a change in the current working conditions (i.e. schedule, workload, time off, light duty) and that it relates to a medical condition. Moreover, there is no requirement that such a request be made in writing. At that point, the employer must engage in an interactive process to determine if such a request is feasible and work collaboratively with an employee to reach a mutually agreeable accommodation if one is available. This can entail requesting reasonable documentation from a healthcare professional to verify the medical condition if is not readily apparent and what accommodations they deem necessary.

The biggest statutory hurdle on a request for an accommodation under the ADA is if the accommodation sought would create an undue hardship on the employer. The EEOC defines undue hardship as something that would cause significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. The burden is on the employer to show that the sought-after accommodation would cause an undue burden. If an employer can prove that providing a particular accommodation would cause an undue hardship, then it is not obligated under the law to provide such an accommodation. Conversely, if it cannot, then generally speaking it must provide it. 

As mentioned above, Title VII imposes an obligation on an employer that it must provide individuals a religious accommodation so that the employee be allowed to observe their religious beliefs. For the most part, the requirements mirror that of the ADA’s requirement for a reasonable accommodation with regards to how it is sought. In other words, the employee must express that they need a change in the working conditions to accommodate a particular religious belief. Yet it is vastly different in one important regard. 

While the ADA requires an employer to show that an accommodation would cause significant difficulty or expense, religious accommodations cannot impose more than a “de minimis” cost on employers. This simple difference may make it substantially more difficult for employees to get reasonable accommodations for their religious beliefs since the burden that an employer must show is lower than that of an ADA related reasonable accommodation.

In short, requesting a reasonable accommodation under either the ADA or Title VII can be a difficult thing. While this shouldn’t be the case, unfortunately in many instances it is.  This is of course not considering the many instances that employees are retaliated against for their engagement in this protected activity – exercising their rights under the ADA and Title VII. That is why it is it is imperative to seek out an attorney that specializes in employment law so that you can get the information you need regarding your requests for reasonable accommodations. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. If you need an accommodation or feel like you have been retaliated against for requesting one, feel free to contact us to schedule an appointment with one of our attorneys. 

Colin Walsh
Austin Employment Lawyer Colin Walsh

Human Resources has called you into a meeting.  At first, you are nervous.  You wonder if someone caught you taking Carl’s lunch from the fridge or if all of those pens you accidentally put in your pocket are going to come back to haunt you.  But then you quickly realize, it is not about you.  HR is investigating a complaint of unlawful discrimination made against your supervisor.  During the interview, HR asks, “Have you ever been discriminated against by your supervisor because of your race/sex/religion/disability/age/national origin/color/sexual orientation?”  You answer truthfully, telling the investigator that you have been discriminated against based on a protected characteristic.  You’ve seen this supervisor do that to others as well.  You provide several examples of both things.  When your supervisor finds about the interview and what you said, your supervisor fires you.

Or how about this: You have noticed that you are not being treated the same as many of your coworkers, who are of a different race/sex/religion/disability/age/national origin/color/sexual orientation.  Perhaps you are not getting as much pay, getting less desirable work assignments, or not getting approval for PTO or sick leave.  Maybe your supervisor uses a nickname you told the supervisor you don’t like.  He doesn’t use belittling nicknames with other employees.  Maybe, unlike other employees, the supervisor micromanages or over-scrutinizes your work, giving you a bad performance evaluation.  One day, you go to HR or even maybe your supervisor.  You ask your supervisor, “Am I being treated differently because of my race/sex/religion/disability/age/national origin/color/sexual orientation?”  The supervisor says no, but a week later you’re fired.

Have you engaged in protected activity by merely answering questions by the company or asking if you have been unlawfully discriminated against?

YES! That is considered protected activity, but it took courts a surprisingly long time to say that.  For example, regarding whether or not reporting discrimination during a company’s internal investigation is protected activity had to be litigated all the way up to the Supreme Court.  And that didn’t happen until 2009.  Here is what the Supreme Court said about that:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own initiative but not one who reports the same discrimination in the same words when her boss asks a question.

Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty, Tenn., 555 U.S. 271, 277-78 (2009).

The second scenario, where the report of unlawful conduct takes the form of a question, was not decided by Texas state courts until 2005 in a Texas Whistleblower Act case.  In that case, the Third Court of Appeals in Austin held that a whistleblower is protected for reporting a violation of law even if it is “in the form of a query.”  Tex. Dep’t of Assistive & Rehab. Srvcs. v. Howard, 182 S.W.3d 393, 400 (Tex. App.—Austin 2005, pet. denied).  The federal appellate courts didn’t decide this issue until 2009.  In 2009, the Seventh Circuit held that asking whether something was disability discrimination constituted protected activity.  See Casna v. City of Loves Park, 574 F.3d 420, 427 (7th Cir. 2009).  The issue has not been directly addressed in the Fifth Circuit, which is the federal appellate court for Texas, but the reasoning of both Crawford and Casna apply.  In fact, the Fifth Circuit has even cited Casna for the proposition that informal complaints constitute protected activity.  See Amanduran v. American Airlines, 416 Fed. App’x 421, 424 (5th Cir. 2011).

One caveat must be mentioned though.  While both of the above examples would be considered protected activity, it is important to note that in both examples, the employee specifically stated which type of discrimination they experienced or asked about experiencing.  If the employee had just said that they were being treated differently or asked if they were being treated differently, it is unlikely that either one would be considered protected activity.  

So, if you think you have been discriminated against and are going to raise the issue with your employer, be specific and state explicitly what type of discrimination you believe you have experienced.  You should also consider contacting an employment lawyer who can help you navigate these issues and talk to you about whether you have a case and what options there are.

Julie St. John
Texas Employment Lawyer Julie St. John

First and foremost, climate change is real. Temperatures are more extreme and extreme weather events are more common. As a result, workers who work outside are at a greater risk of illness, injury, and even death from heat exposure than ever before. Still, the Occupational Safety and Health Administration (OSHA) has failed to adopt a national heat standard to protect workers from heat exposure. Now is the time for OSHA to act. 

OSHA has guidance available to employers on precautions that should be taken to protect workers from excessive heat.1 However, it is only guidance, not law. Such guidance does not set specific requirements for what employers must do to keep outside workers safe from the heat. It only provides recommendations, which employers may obviously choose to ignore. OSHA should do more to protect outside workers. It should enact specific regulations that it can enforce to keep workers safe. 

As OSHA has yet to adopt a national heat standard or pass specific heat-related regulations for the workplace, workers must rely on the “General Duty Clause” of the OSH Act to fight for protections against unsafe working conditions based on excessive heat. The “General Duty Clause” requires employers to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). Clearly, excessive heat should qualify as such a recognized hazard from which workers are entitled to protection.  

Importantly, workers who complain about an unsafe work environment due to heat should also be entitled to protection from retaliation for making complaints about heat-related safety issues. For example, if an outside worker were to complain about not being able to take breaks or an employer’s failure to provide drinking water, that worker should be protected from retaliation for complaining about an unsafe work environment. But protection for making such complaints would be more secure if the employer was subject to specific regulations as opposed to only the “General Duty Clause.” 

In addition to enacting a national heat standard and passing regulations that would set specific, enforceable requirements for what employers must do to protect outdoor workers from heat, taking action to help curb climate change is a second necessary component to the equation. Last month, the Union of Concerned Scientists published a report titled “Too Hot to Work” which analyzed and discussed how climate change is affecting outdoor workers, who are disproportionately Black and Latino workers.2  

“Our analysis finds that by midcentury, given slow or no action to reduce global heat-trapping emissions, the increased intensity, frequency, and geographic extent of extreme heat would cause a three- to fourfold increase in the exposure of outdoor workers to days with a heat index—or ‘feels like’ temperature—above 100°F, the point at which the CDC recommends that work hours begin to be reduced.”

It is entirely unacceptable to do nothing in the face of such findings. Moreover, according to a joint investigation by Columbia Journalism Investigations, National Public Radio, and The Texas Newsroom, from 2010 to 2021, 53 workers died in Texas alone because of working in excessive heat.3 Clearly, OSHA guidance is not enough to keep outdoor workers safe – specific regulations are necessary. 

If your employer is making you work in excessive heat without proper protections, you should consult with an employment attorney right away. Also, if your employer has retaliated against you for complaining about an unsafe work environment, you should not delay in seeking legal advice. The deadline to file a workplace safety retaliation complaint is very short, most often only 30 days from when the retaliation took place. 

 1) https://www.osha.gov/heat/heat-index

 2) https://ucsusa.org/sites/default/files/2021-08/Too%20Hot%20to%20Work_8-13.pdf

 3) https://www.houstonpublicmedia.org/articles/news/in-depth/2021/09/07/407895/texas-workers-are-dying-in-the-summer-heat-and-companies-arent-being-held-accountable/

Julie St. John
Texas Employment Lawyer Julie St. John

Your employer has just fired you for an illegal reason. What do you do next? Your next step is probably contacting an employment lawyer. Indeed, it probably should be. Then let’s say you hire an employment lawyer who tells you you have a really strong case against your previous employer. What next? Is it time to sit back and wait for your big payday? No! It’s not. 

Why not? Because employees who have been fired for an illegal reason have a duty to mitigate their damages. 

There are different types of damages (i.e. losses), but one of the big ones in employment law cases is backpay. Simply put, backpay is the money the employee would have earned if the employer would not have fired the employee for an illegal reason. Put another way, it is the wages and benefits an employee loses out on by no longer having a job—a job they would still have if the employer did not fire them for an illegal reason.

To attempt to mitigate (i.e. lessen, reduce, minimize) those damages, an employee must diligently search for a new job. Obviously, getting a new job would decrease, or even possibly eliminate entirely, the lost wages and benefits. This might make some folks inclined to not look for a new job to try to keep their losses, and accordingly their potential settlement value or judgment, high. But it does not work that way.  

If an employee who has been fired for an illegal reason has not made a diligent effort to find a new job, the law provides the employer with a failure to mitigate defense. Now this is something the employer has the burden to prove; it is what is called an affirmative defense. But, if the employer can prove there were substantially equivalent jobs out there and the employee failed to use reasonable diligence to get one of those jobs, then a court can reduce a damages award. The court can take away money from a judgment based on the amount the employee could have potentially earned if he or she had gotten one of the substantially equivalent jobs. 

Now, this does not mean the wrongfully terminated employee needs to apply for just any job or accept whatever comes along. The work has to be “substantially equivalent.” This means the job has to be very similar in terms of job responsibilities, working conditions, status, pay, benefits, and promotion opportunities. In other words, the employee does not have to accept a demotion. Nevertheless, the employee MUST look for jobs that would meet the necessary requirements. And, the employee must keep looking. If the employee stops looking after a certain amount of time, the court may reduce damages to only the amount of time the employee was actually diligently searching. See West v. Nabors Drilling USA, Inc., 330 F.3d 379 (5th Cir. 1990). 

If you have been fired for an illegal reason, it is extremely important for you to keep detailed records of your diligent efforts to find another job. Those records should include all the positions you applied for (including the name, address, and phone number of the potential new employers), cover letters you send out, different versions of your resume, anyone you talk to about potential job opportunities like recruiters, career consultants, or job search agencies, networking events or job fairs you attend, any response you receive from potential new employers, whether you were interviewed for any position to which you apply (including details of the interview like when it occurred and who you met with), and any offers you receive (including details of the position, pay, benefits, hours, and start date). Additionally, if you are offered a job that you turn down, you should keep an explanation of why you turned it down. You need to have a really good reason for turning it down, and you should talk to your employment lawyer before you turn it down. 

Overall, if you have been fired for an illegal reason, you should start your search for a new job and consult with an employment attorney right away. You need to make absolutely sure you are doing everything you need to do to find a new job so your previous employer cannot use your lack of effort against you.  

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Her story: “I work at a small convenient store outside of town.  I don’t know what to do.  I can’t quit my job; it took me forever to find a job that works with my schedule.  I am a single mother, and I have to take care of my child and I’m trying to finish school.  I need this job, but ever since I started working, the owner has been making inappropriate sexual comments and gestures.  It makes me uncomfortable and I’ve asked him to stop, but he won’t.  Every day it seems to be getting worse.  How do I stop him from doing this to me? I can’t take this.  It isn’t fair.  I just want to go to work and do my job and go home.”

The protections afforded under most of the anti-discrimination laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, and the Family and Medical Leave Act only apply if the employer in question has the requisite number of employees. For example, for employees to have protections under Title VII or the ADA, an employer must employ 15 people.  For claims under the ADEA, there must be 20 employees.  For an employee to be able to pursue claims under the FMLA, an employer must have 50 employees within a 75-mile radius of the location where the employee worked.  The same is true for the counterparts of these laws found in the Texas Labor Code. Thus, whenever an attorney hears “small convenient store” or any other indication of a small employer, the typical follow up inquiry is figuring out how many employees are employed by the employer. 

The requirement that these minimum thresholds be met before an employer can be held liable for illegal conduct leaves many employees powerless.  For the most part, Texas specific laws are still modeled after federal laws. However, when it comes to sexual harassment in the workplace, which falls under Title VII protections as they relate to sex, the Texas Labor Code no longer looks like federal law.

Until recently, the woman making the above complaint may have been left with no options for seeking legal recourse for the sexual harassment she experiences.  Thankfully, this will no longer be the case in Texas. Texas has now taken a bold step to protect employees from sexual harassment.  

Employers in Texas will no longer be able to hide behind the defense of, “I only have 10 employees” for claims involving sexual harassment.

When it comes to sexual harassment in Texas, on September 1, 2021, under the Texas Labor Code, all employees will be protected from sexual harassment.  For the purposes of sexual harassment claims, “employer” will now be defined as “a person who employs one or more employees.”  But wait, that’s not the only change in the law as it relates to the definition of employer.  Supervisor, managers, and human resources personnel beware.  When reports of sexual harassment are made, the named Defendant may include you.  The definition of “employer” also includes “a person who acts directly in the interests of an employer in relation to an employee.” Indeed, after September 1, 2021, supervisors, managers, human resources personnel, and other third parties acting directly in the interest of the employer may find themselves being held personally liable for damages.

Aside from expanding the definition of employer, the timeline for filing complaints of sexual harassment under Texas law will be expanded from 180 days to 300 days, which will put it in line with similar types of claims pursued under federal law.  

Lastly, Texas law seems to be changing what is required of employers in the way of responding to complaints of sexual harassment.  In the past, employers have been required to take “prompt remedial action.”  The new law will require employer’s take “immediate and appropriate corrective action.” Courts will still need to interpret this standard. Yet, the departure from the old requirement, indicates that Texas lawmakers are intending to take a stronger stand against sexual harassment and are requiring employers to take real action in response to these very serious complaints.

These changes stand for a much-welcomed change that is needed in the legal landscape of Texas.  Often times, these legal loopholes leave many of the most vulnerable employees without any protections. If you are experiencing sexual harassment at work and would like to know your rights, don’t hesitate to contact an experienced employment lawyer.  Contact our office, we are available to discuss your circumstances and a plan of action.