Areyana Johnson
Austin/Houston Employment
Trial Lawyer Areyana Johnson

On May 31, 2024, the Occupational Safety and Health Administration (“OSHA”) Final Walkaround Rule went into effect. Initially published on April 1, 2024, the new rule amends 29 C.F.R. 1903.8(c). This rule sets forth the guidelines on who is permitted to be present for an OSHA inspection.

What is 29 C.F.R. 1903.8(c)?

29 C.F.R. 1903.8(c) is an OSHA regulation which protects an employee’s right to select and authorize a representative to accompany the OSHA Compliance Officer conducting an inspection of the employee’s workplace. Previously, an employee was limited in selection of a representative. Specifically, an employee could only designate an employee of the employer as the representative or a third party deemed “reasonably necessary”.  A reasonably necessary third party is an individual who possesses credentials and expertise in the health and safety sector.

Well, those limitations are no longer in effect. An employee is no longer limited to a third party who is deemed reasonably necessary. In other words, an employee may authorize a representative who is a third party not in possession of formal credentials. The only caveat to this is where a representative who is not an employee of the employer nor a reasonably necessary third party, an OSHA Compliance Officer retains discretion to determine the validity of the third party’s presence. Good cause of the third party’s presence is required to effectuate an efficient and effective inspection of the employee’s workplace. So, while the employee is somewhat free to pick an individual to accompany the OSHA Compliance Officer on the inspection, the compliance officer has the final say on whether the presence surpasses muster.

How Will the OSHA Compliance Officer Determine Good Cause for a Non-Reasonably Necessary Third Party?

The OSHA Compliance Officer may pose a series of questions to the third party. These questions will pertain to the third party’s knowledge, skills, or experience in dealing with hazardous materials or conditions in the workplace, similarly situated workplaces, or relevant communication skills when assessing the effectiveness and efficiency of the third party’s presence. So, while the amended rule virtually covers any individual to be selected for the inspection, it is a best practice for an employee to select an individual who satisfies at least one of the criteria above-mentioned to withstand the potential limiting discretion of an OSHA Compliance Officer.

What If My Employer Refuses to Permit My Representative Access to the Workplace?

It appears there are only a few instances where an employer can ultimately prevent a representative from accessing the workplace. An employer may still limit entry of employee authorized representatives where the protection of trade secrets is threatened. Additionally, employers may attempt to thwart access to a third party, but this is not permanent. If you find yourself in a situation where the employer is preventing access by a third party, an avenue of relief is to seek a warrant before conducting the inspection. This is a tool utilized by OSHA. It is important to note that even after the warrant is obtained, the OSHA Compliance Officer may still order the third-party representative to abide by the employer’s policies and procedures similar to an employee of the employer.

In sum, the Final Walkaround Rule is broader than its predecessor.  The amended rule has several practical implications. Employees are now permitted to designate almost any individual to be present for the OSHA workplace inspection even where the representative possesses zero relevant experience or knowledge about the workplace. Currently employees are also not regulated as to when or how they may authorize their inspection representatives. Ultimately, where a representative is a third party, the OSHA Compliance Officer has the discretion to determine whether the third party is reasonably necessary to conduct an effective and efficient walkthrough inspection.

For more information on the OSHA Final Walkaround Rule, please see here.

Areyana Johnson is an Employment Law Trial Attorney located in the Houston office of Wiley Wheeler, P.C. For more info on Ms. Johnson, see more details here.

I love movies and have so many fond memories of Alamo Drafthouse in Dallas. I have a season pass, but I’m not sure when I can use it again.  The last movie I saw was a special showing of Hitman.  I was shocked and disheartened when all five Alamo Theaters suddenly closed in Dallas. What I loved about Alamo Drafthouse was its quirkiness and amazing employees.  It was a unique place of joy that enhanced the movie-going experience.

As an employment lawyer, I know that sudden closures often viloate the federal WARN Act. The Worker Adjustment and Retraining Notification (WARN) Act is a federal law designed to protect employees by requiring large employers to provide a 60-day notice in advance of major layoffs or plant closures. The goal is to give workers time to prepare for the loss of their jobs, allowing them to seek new employment or undergo retraining.  

Even if a company goes bankrupt, they still have to comply with the WARN Act.  And a company with assets – like a bunch of movie theaters and real estate – often has assets to pay its fired employees.  Becasue Alamo Drafthouse failed to provide the required notice, they are obligated to pay 60 days of pay and benefits to affected employees!  It’s black and white.  We sometimes call these laws “strict liability” statutes.

I’m a board certified Texas labor and employment lawyer, this is my analysis of why I believe that Alamo Drafthouse (or at least it’s franchisee) broke the law:

First, the WARN Act only applies to employers with 100 or more full-time workers. But according to WFAA news, there are 600 employees effected in this layoff.  So clearly there were more than 100 workers at the five locations.

Second, the WARN Act requires a mass layoff affecting 50 or more employees.  Again, more than 50 employees were laid off.

Third, Alamo Drafthouse doesn’t fall under an exemption – like a natural disaster or unforseeable circumstance.  These theaters had been losing money.  This is what makes me really mad.  The owners saw this coming, and they could have prepared, but they didn’t.

Finally, Alamo Drafthouse failed to give the federally required sixty day notice.  There’s no doubt about this.  It seems to me that Alamo Drafthouse (or at least it’s franchisee) is guilty.

The main remedy of the WARN Act is 60 days pay. Bankruptcy is not a defense against the WARN Act and unpaid wage claims usually take priority over other claims. It’s possibly that the individual owners themselves may be liable under the Texas Fraudlent Transfer Act or if the owners weren’t following the formal rules that govern companies.

I regularly file lawsuits in federal court representing workers.  I would love to represent workers of Alamo Drafthouse and Two is One, One is None, LLC who were screwed over in this layoff.  My law firm allows potential clients to schedule an initial consultation by calling 214-528-6500.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

After signing a severance agreement, employees are understandably eager to be paid the funds they are owed. That’s why many employees are often frustrated to hear that they will not be paid immediately signing a severance. For workers over 40, there’s a very specific legal reason for this.

The Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act (ADEA) are two significant pieces of legislation in the United States aimed at protecting older workers from discrimination in the workplace. When it comes to severance agreements, both laws have specific requirements that employers must adhere to that mean a delay in payments:

OWBPA Requirements:

The OWBPA applies specifically to waivers of age discrimination claims in severance agreements.

When thinking of the OWBPA, it’s important to consider two magic numbers: 21 and 7. Employees over the age of 40 must be given at least 21 days to consider the agreement. These 21 days start ticking from the receipt of the original agreement and does not reset with every edit. However, you do have the option to sign before those 21 days are over.

The OWBPA also requires that the employee over 40 have an additional seven days to revoke their acceptance after signing. These seven days must lapse and cannot be waived. This means that the agreement is not effective until eight days after signing. So, if the severance says that the company has 20 days after the effective date to pay you, that means that they have 28 days from the day of signing because those seven days must first lapse to give you the option to revoke before going into effect. Still confusing? Let’s use an example.

Sally is 46 years old. Sally is presented with a severance from her former employer on January 1. The agreement says that Sally has 21 days to consider the agreement, 7 days to revoke, and that the severance will be paid 20 days from the effective date. Sally signs on January 3. The agreement becomes effective on January 11, eight days after signing. The company then has until January 31 to pay Sally. If they fail to pay her by then, she will be able to sue them for breach of contract.

Also to be valid under the OWBPA, the agreement must be written in a manner that is understandable to the average employee. Additionally, it must provide consideration (usually in the form of additional benefits or monetary compensation) beyond what the employee is already entitled to receive. At the federal level and in Texas, a very pro-employer state, employers are not legally required to give terminated employees a severance. What the employee may already be legally required to receive are unpaid wages or vested benefits.

ADEA Requirements

That brings us to the ADEA. The ADEA prohibits age discrimination against employees who are 40 years of age or older. Under the ADEA, waivers of age discrimination claims in severance agreements must comply with the requirements outlined in the OWBPA, as discussed above.

Additionally, the ADEA requires that the individual knowingly and voluntarily waives their rights to sue for age discrimination. Courts should scrutinize ADEA waivers closely to ensure that they are not overly broad and that employees understand what rights they are giving up.

Employers who fail to meet these requirements risk having the waiver declared unenforceable, meaning that the person may still sue them for age discrimination. So, you’ll often see clauses in these severance agreements affirmatively agreeing that agreement complies with the ADEA and OWBPA. But it still might not! That’s why it’s crucial to consult with an attorney before signing a severance, especially if you are over the age of 40.

Do you feel you’ve been subjected to age discrimination at your job in Texas? Contact me today to schedule a consultation to discuss your potential claim, or a document review to discuss a severance you have been offered.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

Employment is a really unique area of law. In Texas and federally, you cannot go straight to filing a lawsuit against your employer after they have violated your rights. This is how employment law seriously differs from, say, personal injury, where you could file a lawsuit pretty immediately.

In most employment law claims in Texas and in the federal court system, you must first exhaust administrative remedies and receive permission to sue your employer. When people think of employment law, they think mainly of discrimination and retaliation of protected categories of people (such as race, gender, sexuality, age, and disability). For these kinds of claims, the agencies that you would file with in Texas would be:

·      Equal Employment Opportunity Commission (EEOC) – For federal discrimination and retaliation claims under Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA)

·      Texas Workforce Commission (TWC) – For Texas Labor Code discrimination and retaliation claims)

There are some claims, however, where there’s no requirement to exhaust administrative remedies. For example, for a claim under the Family Medical Leave Act, you can go straight to filing suit.

Even trickier, there are some claims where the government is the only entity to file a claim and there is no right to file an actual lawsuit. Examples of this would be union or labor disputes reported to the National Labor Relations Board (NLRB) under the National Labor Relations Act (which protects union activity and protects you against retaliation for things like discussing wages and attempting to unionize, even if a union isn’t ever formed), or whistleblower claims to OSHA under the Occupational Safety and Health Act.  

So, for claims where administrative remedies must be exhausted, the

  1. Filing a Charge: The first step in exhausting administrative remedies is to file a charge of discrimination or other employment violation with the EEOC or TWC. This charge must be filed within a specific time frame—typically 180 days from the date of the alleged discriminatory act. In some cases, this period may extend to 300 days if the charge is also covered by state or local laws.
  2. Agency Investigation: Once a charge is filed, the agency will notify the employer and conduct an investigation. The investigation depends on the agency. For example, at the EEOC, the investigation will primarily include the employer submitting its response to the allegations in the employee’s charge. The employee will have a chance to submit a rebuttal to this position statement. An NLRB investigation involves an NLRB investigator calling the employee, interviewing them, and taking a detailed statement.
  3. Agency Determination: After completing its investigation, the agency will make a determination. However, most people receive a “neutral” finding where there is no affirmative finding of discrimination one way or another. The EEOC only issues cause findings (findings where they affirmatively say discrimination occurred) in less than 5% of claims. This does not mean that only 5% of claims are meritorious, though. The EEOC oftentimes cannot conclude an investigation in what it deems a reasonable amount of time and instead issues the employee a right to sue.
  4. Right to Sue: Receiving a “Right to Sue” letter is a critical step in exhausting administrative remedies. It signifies that the employee has fulfilled their obligation to attempt resolution through the administrative agency and can now file a lawsuit in court. A right to sue from the EEOC expires in 90 days. A right to sue from the TWC expires in 60 days. This means that employees must move quickly to file a lawsuit after exhausting administrative remedies.

 As you can tell, this is a complicated process that presents many roadblocks for employees. That’s why it’s so important to hire an attorney to guide you through it. Call me today or one of my colleagues in Austin or Houston for help.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Yes, it’s true. You have a duty to engage in the interactive process after submitting an accommodation request to your employer. The inquiry does not end after submission of your request. This blog will dive deeper into what is required by the employee during the interactive process.

Interactive Process

An accommodation request triggers the obligation of the employer to do one of two actions: (1) provide the requested accommodation or (2) seek information to evaluate the employee’s needs. Option two is more common as sometimes a reasonable accommodation is not obvious. Thus, in order to determine what accommodations can be implemented, the employer and employee engage in the interactive process. The interactive process places dual obligations on the employee and the employer to determine whether and which reasonable accommodations can be made for the employee.  This good faith interaction consists of back-and-forth information sharing to ideally achieve a mutual solution. At the heart of this process is the consideration of factors such as the limitation and capabilities of the employee, the needs and constraints of the employer so as to not cause an undue hardship, and the range of possibilities to reach the mutual agreed solution. For more details on the interactive process, click here.

Employee’s Duty

Well, what is my duty as an employee? As mentioned above, you as an employee are obligated to participate following the submission of an accommodation request. Typically the employer will request more information from you and your health provider. This request for information is what’s known as a medical certification which identifies your work restrictions. It is your duty to provide this form to your health provider and ensure that your employer has received it. A common misconception about this form is the disclosure of all medical related information being disclosed to your employer. Fear not, that is not what’s being required. Employers are only entitled to what is reasonably necessary.

Furthermore, once the necessary medical documentation has been submitted, the selection of available accommodations is next. It is up to you to inform the employer of any suggested accommodation which may be ineffective. Ineffective accommodations may be deemed as a failure to engage in an interactive process. In fact, although not legally required, it is highly recommended that employers choose the accommodation the employee prefers. During implementation of the accommodation, it is important to monitor the progress. Ask yourself is this accommodation working for me? Have circumstances caused a modification in the accommodation whether it’s a new limitation or change in the workplace? Monitoring the accommodation after implementation is a forgotten step but it’s important to continue communication with your employer regarding any necessary changes or modifications.

To that end, courts have opined on the employee’s duty to engage in the interactive process. For example, in Texas Workforce Commission v. Seymore, No. 02-23-00036-CV 2024 WL 283688 (Tex. App.—Fort Worth Jan. 25,2024) the appellate court provided a descriptive framework of the dual duty of both employees and employers in the interactive process. Involving a reasonable accommodation for a disability, the employee failed to satisfy her duty by dropping the ball on her interactive process. Here, the employee halted further accommodation discussions and resigned. Seymore, 2024 WL 283688 at *6.  While the inquiry into the failed duty ends here, the framework from this case serves as a helpful guide into what the interactive process would have looked like had the employee not resigned. Id. at *6.

 From the court’s holding, we know that an employer’s offer to place the employee in another position with a $7 pay reduction is not in bad faith because it is possible the employer would have raised its offer had the employee not pulled the plug on accommodation discussions by resigning. Id. at *7.  A second takeaway from the holding is that an employer’s rejection of an employee’s preferred accommodation is also not in bad faith where the existence of several possible accommodations is present. Id.  As mentioned previously, an employee is not entitled to her preferred accommodation request if there are other available accommodations an employer could adopt that would satisfy the employee’s limitations.

In sum, the duties underlying the interactive process are shared by the employee and the employer. If you find yourself in this situation or your employer is failing to engage in the interactive process, please don’t hesitate to give our office a call to discuss your avenues of relief. https://www.texasemploymentlawyer.com/author/anjohnson/

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

As a plaintiff’s employment lawyer in Austin, TX, I often encounter clients who have been affected by mass layoffs. Understanding your rights and the requirements employers must follow can be crucial during these challenging times. Here’s a guide to help you navigate the complexities of mass layoffs under the law.

 What Constitutes a Mass Layoff?

A mass layoff refers to the termination of a significant number of employees by an employer within a short period. The criteria for what constitutes a mass layoff can vary depending on the legal framework applied, but typically, it involves:

The Worker Adjustment and Retraining Notification (WARN) Act, 29 U.S.C. § 2101, et seq.: This federal law passed into law in 1988 requires employers with 100 or more employees to provide 60 days’ notice in advance of plant closings or mass layoffs. A mass layoff under the WARN Act is defined as a reduction in force that:

  – Affects 50 or more employees at a single employment site; or

  – Involves at least one-third of the workforce at the site, provided at least 50 employees are affected.

Key Requirements Under the WARN Act

1. Notice Period: Employers must give affected employees 60 days’ written notice before the layoff occurs. This notice should include:

   – The expected date of the layoff and whether it will be permanent or temporary.

   – Information on any available assistance or benefits.

   – Contact information for a company representative who can provide further details.

2. Exceptions to the Notice Requirement:

   – Faltering Company: If the employer is actively seeking capital or business to avoid the layoff and believes that giving notice would jeopardize those efforts.

   – Unforeseeable Business Circumstances: If the layoff is caused by sudden, unexpected conditions outside the employer’s control (e.g., natural disasters, sudden market downturns).

   – Natural Disasters: If the layoff is a direct result of a natural disaster.

3. Penalties for Non-Compliance:

   – Employers who fail to provide the required notice may be liable for back pay and benefits for the period of the violation, up to 60 days. They may also face civil penalties of up to $500 per day.

What Should Affected Employees Do?

1. Review the Notice: Carefully review any layoff notice provided by your employer to understand the specifics, including the timeline and available resources.

2. Seek Legal Advice: If you believe your employer did not comply with the WARN Act requirements, reach out to Rob Wiley P.C. to consult with an employment lawyer to explore your options. You may be entitled to compensation for the lack of proper notice.

3. Document Everything: Keep records of all communications, notices, and other relevant documentation related to the layoff. This information can be critical if you need to pursue legal action.

4. Explore Assistance Programs: Look into state and federal assistance programs, such as unemployment benefits and retraining opportunities, to help ease the transition.

Conclusion

Mass layoffs can be devastating, but knowing your rights under the law can help you take the necessary steps to protect yourself and your family. If you find yourself facing a mass layoff in Austin or elsewhere in Texas, don’t hesitate to reach out for legal assistance. Our office is dedicated to helping employees understand their rights and obtain the justice they deserve.

For more information or to schedule a consultation, contact us today. We’re here to help you navigate this challenging time with the support and expertise you need.

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Introduction

In nursing, anti-retaliation laws can play a pivotal role in shaping professional conduct, ensuring patient safety, protecting nurses, and maintaining the integrity of the nursing profession. One critical provision is the Texas Occupations Code § 301. This chapter, called the Nursing Practice Act, enumerates legal protections for nurses when reporting violations of professional standards. This blog delves into the specifics of these protections and the important implications they may have for nurses.

Overview of Tex. Occ. Code Chapter 301, the Nursing Practice Act

Texas Occupations Code § 301.4025(b) provides:

A nurse may report to the nurse’s employer or another entity at which the nurse is authorized to practice any situation that the nurse has reasonable cause to believe exposes a patient to substantial risk of harm as a result of a failure to provide patient care that conforms to minimum standards of acceptable and prevailing professional practice or to statutory, regulatory, or accreditation standards. For purposes of this subsection, an employer or entity includes an employee or agent of the employer or entity.

Notably, Texas Occupations Code § 301.4025(c) further states:

A person may not suspend or terminate the employment of, or otherwise discipline, discriminate against, or retaliate against, a person who: (1) reports in good faith under this section; or (2) advises a nurse of the nurse’s right to report under this section.

Finally, § 301.413(e) provides that if a nurse is “suspended, terminated, or otherwise disciplined, discriminated against, or retaliated against within 60 days after the date the report, refusal, or request was made or the advice was given,” the nurse has a rebuttable presumption that the employer’s action was retaliatory.  

Key Takeaways

1.     Good Faith Reports: When a nurse makes a 301.4025(b) report, so long as he believes that the report was required or authorized and there was a reasonable factual or legal basis for the belief, his report will be deemed a good faith report.

2.     Enhanced Patient Safety: This Act is crucial in fostering a culture of transparency and accountability in medical environments. Nurses should feel empowered to advocate for their patients’ safety and well-being, without fear of legal repercussions. Nurses are often the first to notice potential risks of harm as they monitor their patients’ conditions. Allowing them to speak up creates a far safer environment for those most vulnerable.

3.     Professional Accountability: This Act reminds all medical providers to adhere to the minimum standards of acceptable and prevailing professional practice. Encouraging nurses to speak up fosters accountability and trust in medical settings. Nurses should be able to report anyone without fear of retaliation, even if that person is a supervising physician or nurse practitioner.

4.     Retaliation Comes in Many Forms: Nurses can experience retaliation in myriad forms. These include suspensions, terminations, arbitrary investigations, and other forms of discipline. Nurses should be vigilant of any such adverse actions, as they may be unlawful forms of retaliation.

Challenges and Considerations

While the intent of § 301.4025(b) is clear, its implementation can be challenging. Nurses might fear retaliation or damaging workplace relationships, which could deter them from reporting. Hospitals may find pretextual reasons to punish nurses as well. Medical institutions must create supportive environments where nurses feel safe and encouraged to report concerns, no matter what. Educating nurses on their rights and the importance of this Act can mitigate some of these challenges.

Conclusion

Tex. Occ. Code § 301 plays a crucial role in upholding medical standards and protecting workers in Texas. Nurses, healthcare institutions, and administrative bodies within must work collaboratively to ensure that this provision is effectively implemented, ultimately enhancing the quality of care and safety for patients across the state.

If you think that you have been retaliated against for making a protected report in Dallas, do contact our firm for a consultation.

This past week, the Equal Remedies Act of 2024 was introduced by Representatives Suzanne Bonamici (D-OR), Robert “Bobby” Scott (D-VA), and Senator Edward Markey (D-MA). The Act is an effort to end injustice. 

In 1991, lawmakers put in place caps on the damages employees can be awarded after being the victims of unlawful discrimination and harassment in the workplace.  Lawmakers decided that no matter how blatant the discrimination, how egregious the harassment, how unresponsive the employer might be when complaints are made, an employee’s recovery for compensatory and punitive damages under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act would be severely limited. Today, over 30 years later, those arbitrary caps still apply. 

Lawmakers took power away from jurors and decided: if an employer has 100 or fewer employees, a plaintiff’s recovery for compensatory and punitive damages is limited to $50,000; if an employer has between 101 and 200 employees, a plaintiff’s recovery for those damages is limited to $100,000; if the employer has between 201 and 500 employees, the recovery is limited to $200,000; and for all employers with more than 500 employees (no matter how large), the recovery is limited to $300,000. This means that if a jury hears evidence in a case and thinks that the injuries and emotional distress experienced by the employee so severe, and the employer’s disregard for the law so appalling, to warrant a $500,000 or $1,000,000 verdict for compensatory or punitive damages, that award will be cut down. At most the employee could be awarded $300,000 for these damages, but worse yet it could be cut down to $50,000. This is regardless of how the jury viewed and valued the evidence in the case.

Some may argue that the caps prevent excessive financial burden on defendants. They may argue that caps maintain a balance between providing relief for plaintiffs and avoiding bankrupting employers found liable for discrimination. However, the truth is damages caps are aimed at protecting big business at the cost of the employees. They hinder justice and do nothing to deter unlawful discrimination. The law is currently written for the benefit of big business, even when big business fails to care about the employees that make them a success.

Under Title VII, a smart and capable woman could be sexually harassed and humiliated day in and day out, she could make repeated complaints to managers and owners that are completely ignored, and these limits apply. An employee could be mocked for their religion or demoted or terminated because of their sexual orientation, and these limits would apply.  A dedicated, 30-year employee could suddenly find they have a disabling condition requiring accommodations, which results in name calling and refusals by upper management to provide wholly reasonable accommodations in order to force this long-term employee out, still these limits would apply. Even if a plaintiff is able to prove their severe emotional distress, an employer’s failure to address complaints, or an employer’s pattern of allowing these types of unlawful harassment and discrimination to persist in the workplace, these limits apply.  

Discrimination suits serve as a crucial mechanism for justice. Yet, caps on damages undermine justice for the victims of unlawful discrimination and harassment. Limiting damages arbitrarily trivializes the harm caused by employers that deliberately and maliciously fail to follow the law.  Caps on damages allow for a legal system that fails to address systemic issues of unlawful discrimination and perpetuates inequality in the workplace. 

The Equal Remedies Act of 2024 is proposed to eliminate these arbitrary damages and amend the Age Discrimination in Employment Act so that the victims of age discrimination have access to the same damages as victims of other forms of discrimination.  The Act will give jurors the power to decide the value of the damages sustained by the victims of unlawful discrimination when they hear the evidence in court. 

Reach out to your senators and representatives and let them know how important this legislation is to you, the everyday hard working people that might be the victims of discrimination.  You could be a woman in a male dominated profession.  You could be someone prevented from exercising your religion. You could be an employee told not to bring your same-sex spouse to the company event. You could be an older employee that has dedicated 30 years to a company and now management thinks you’re too old to learn new things.  

If you have been the victim of unlawful discrimination or harassment, contact us. We have attorneys available for consultation to hear your story, advise you on the law and your rights, and where the law does provide protection, give you a plan of action. 

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

In light of the recently released Equal Employment Opportunity Commission (EEOC) guidance on harassment, Texas employers should think rethink how to design and make modifications to the workplace. With the protection of employees at the forefront, this new guidance outlines over 70 examples of unlawful harassment. It also encompasses new legally protected characteristics. By way of example, the EEOC has expanded its enforcement guidelines to explicitly prohibit harassment based on LGBTQ+ status, lactation, pregnancy, and pregnancy-related conditions. The guidance even covers intraclass harassment which is harassment based on a protected characteristic from a member of the same protected class as the aggrieved.

With respect to the evaluation of whether harassment violates federal law, the guidance focuses on three components: 1) whether the harassing conduct was based on a legally protected characteristic, 2) whether the harassing conduct constitutes or results in discrimination with respect to a term, condition, or privilege of employment, and 3) whether there is a basis for holding the employer liable for the discriminatory conduct. 

Harassment is a form of discrimination which is a violation of both federal and state law. Specifically, harassment is unwelcome conduct premised upon race, color, religion, sex (including sexual orientation; gender identity; and pregnancy, childbirth, or related medical conditions), national origin, older age beginning at 40, disability, or genetic information. Harassment becomes unlawful where the offensive conduct is so severe and pervasive enough to create a hostile work environment or the harassment involves a change to the terms, conditions, or privileges of the employee.

Additional examples provided by the EEOC that may rise to the level of actionable harassment includes, threatening or intimidating a person due to the person’s religious beliefs or lack of religious beliefs; sharing pornography or sexually demeaning depictions of people, including those generated by artificial intelligence; mimicking a person’s disability; making comments based on stereotypes about older workers; making sexualized gestures or comments, even when the behavior is not motivated by a desire to have sex with the victim; and forwarding an offensive or derogatory “joke” email. An exhaustive list of the examples can be found here.

Moreover, the EEOC guidance emphasizes the role of leadership in setting the tone for a harassment-free workplace. Senior leaders are encouraged to publicly condemn harassment, lead by example, and prioritize diversity, equity, and inclusion in all aspects of organizational decision-making. By fostering a culture of respect and inclusivity from the top down, leaders can help create workplaces where harassment is less likely to occur at the expense of their employees.

The guidance goes on to provide practical tips and best practices for employers to implement effective anti-harassment policies and procedures. This includes conducting regular training sessions for employees and managers, updating harassment policies to reflect current legal standards and best practices, and promoting diversity and inclusion initiatives that foster a culture of respect and belonging for all employees. As expressed by the EEOC, it is the employer’s responsibility to prevent harassment of their employees not only by supervisors and coworkers, but also by customers, clients, vendors, and the like.

Furthermore, the EEOC guidance highlights the importance of fostering a supportive environment for victims of harassment. Employers are urged to provide resources and support to employees who come forward with complaints, including access to counseling services, legal assistance, and other forms of support. By demonstrating empathy and support for victims, employers can help empower them to speak out against harassment and seek justice.

In conclusion, the new EEOC guidance on workplace harassment represents a significant step forward in the ongoing effort to create safe, respectful, and inclusive workplaces for all employees. By emphasizing the importance of proactive prevention, bystander intervention, thorough investigations, and victim support, the guidance provides employers with valuable tools and strategies for addressing and preventing harassment in the workplace. Ultimately, by working together to create cultures of respect and accountability, employers can help ensure that all employees can work free from harassment and discrimination.

While not the law, this newly robust guidance is a comprehensive guide which sets forth modern examples of harassment in the workplace. Give our office a call if you find yourself subject to harassment. We are committed advocates to employees’ rights.  https://www.wiley-wheeler.com/.

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

In the legal realm, there are various procedures and outcomes that can unfold during the course of a case. One such outcome, is a default judgment. When one party fails to respond or participate in legal proceedings, it can trigger a series of events leading to a default judgment. Let’s delve into what happens during a default judgment and its implications for both parties involved.

First, a default judgment occurs when a defendant in a civil case like a discrimination case fails to respond to a plaintiff’s complaint or petition within the specified time frame or fails to appear in court when required. Essentially, it means that the defendant has defaulted on their obligation to defend themselves or participate in the legal process.

A default judgment does not happen in a vacuum, there are specific events that must happen before this type of judgment is rendered. The Plaintiff has to file an initial complaint or petition against the Defendant named in the lawsuit. The lawsuit is then served to the Defendant, sometimes with a summons, which puts them on notice that there is a legal action against them and lays out a timeframe in which a response must be made. In Texas, the Defendant has until the 10:00 Am on the Monday, 20 days after service is received. If that set deadline passes, and Defendant fails to respond, then the Plaintiff can move to get a default judgment from the court. Part of what a Plaintiff has to show the court to support its motion for default judgment varies according to the state rules, but in Texas part of the evidence to support the motion has to be proof that the Defendant was served correctly. The court can also hold a hearing to determine if service was done correctly. After Plaintiff shows that the service was done correctly, then a hearing is set so the Plaintiff can have an opportunity to support the damages they are seeking. The court will review this evidence and if Plaintiff is successful grant the default judgment in their favor. 

Default judgment happens occasionally, but at any point before the judge signs the order on the default judgment, a Defendant may respond and the default judgment can no longer be entered. Defendants may also have grounds to set aside a default judgment. This typically involves demonstrating to the court that there was a valid reason for their failure to respond, such as excusable neglect, mistake, or lack of proper service of the summons and complaint.

The whole process has implications for each party regardless of the outcome. For the Plaintiff, a default judgment signifies a victory in the case without having to go through a full trial. It allows them to obtain a judgment in their favor relatively quickly, without the need for further litigation. Depending on the nature of the case, the relief sought, and the evidence Plaintiff has in support, the Plaintiff may be awarded monetary damages, injunctive relief, or other remedies as determined by the court. For the Defendant, a default judgment can have serious consequences. It means they lose the case without having the opportunity to present their side of the story or defend themselves in court. The defendant may be subject to the enforcement of the judgment, which could include paying damages or complying with other orders issued by the court.

In conclusion, default judgments serve as a reminder of the importance of timely response and active participation in legal proceedings. They underscore the significance of due process and the rights of all parties involved in a case. While they can provide a swift resolution for plaintiffs, they also highlight the potential consequences of non-response for defendants. Understanding the implications of default judgments is essential for anyone navigating the legal landscape. If you need help navigating this issue or others, please do not hesitate to reach out to our office to schedule a consultation.