Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

We often think of a fair trial in terms of having an impartial judge and jury, effective assistance of counsel, the opportunity to present evidence and witnesses, and the ability to cross-examine the adversary’s witnesses and present rebuttal evidence.  However, trials are much more complicated than the general expectations. 

Fair trials don’t just happen. Judges and attorneys exercise great care to ensure fairness in trials. In civil cases, attorneys engage in what we call the discovery process to gather evidence relevant to each individual case. Behind the scenes attorneys file pre-trial motions that judges must rule on before a trial. Those motions may be to exclude, include, or limit pieces of evidence or testimony. Attorneys and judges work on the jury charge that will be read to the jury at the close of all evidence. In other words, they work on the instructions that will be provided to jurors before they deliberate to ensure that they render a verdict based on evidence presented in court and the applicable law.  

There are a number of things that happen before a case is finally handed over to a jury. This is all just to say, that the things we generally expect to ensure a fair trial are not automatic.  

Ensuring a fair trial can be more difficult when a party or key witness suffers from an intellectual disability because they have difficulty thinking or communicating. It may also take them longer to speak or process information. This can make presenting information, whether at a deposition or during trial, more challenging.  But, it is important to remember that individuals with intellectual disabilities are entitled to the same justice system, and JUSTICE, as those suffer from physical disabilities or no disabilities at all.

When an intellectual disability creates difficulty for a client when testifying, it is crucial that the employee’s attorney take great care in preparing for their client’s testimony.  This includes preparing the client for not only direct examination, but also cross examination.  

Despite the care an attorney may exercise in talking to their client and communicating with them on a day-to-day basis. Those communications are nothing like the stress and pressure created by a deposition or trial.  This is particularly true, when the opposing side may not exercise the same care when cross examining your client or may even attempt to use the employee’s known disabilities to their advantage by attempting to confuse them or in some other way make the jury question the credibility of their testimony.  

Therefore, the employee’s attorney may need extensive preparation for not only for their client, but also themselves. This preparation may include finding and utilizing valuable resources to best prepare the attorney and the client. Preparation may require consultation and sessions with an expert. It may also require practice under simulated trial circumstances. It is important to learn the way your client should be addressed, what questions he or she should and should not be asked, and how to best frame questions for maximum comprehension. Aside from finding the right assistance, the attorney must be patient. This is as equally true when sitting with the client in the office as it is when questioning them as a witness in court.  

If you or someone you know suffers from an intellectual disability, and have faced discrimination or retaliation at work, our attorneys are available for consultation. Having the courage to fight for your rights will be stressful, but when employees are brave enough to do so, they need to know that they have a team that is supportive and on their side.  

Julie St. John
Texas Employment Lawyer Julie St. John

As an employment lawyer who represents workers, the changing dynamics in the workplace, especially corporate America, are simply fascinating to me. You’ve probably heard about the “Great Resignation” and perhaps about the growth of unionization campaigns at places like Starbucks, Amazon, and Apple. Now there is a new trend, “quiet quitting.” And although I take some issue with the term as it seems to have somewhat of a negative connotation to it, the concept may be the next wave in the movement to bring about substantive change to workplace culture. 

So, first off, quiet quitting does not involve actually quitting your job. Quiet quitting is not the employment equivalent of the Irish goodbye. Workers who are quiet quitting are continuing to work. In fact, they are at least theoretically continuing to do a good job at their jobs. Quiet quitting isn’t about being lazy or unmotivated, it is about setting appropriate boundaries in employment relationships—relationships that for far too long have had an unfair imbalance of power in favor of employers. 

Now, workers are looking to take back some of that power back and prioritizing their personal lives, mental health, and overall well-being. Workers who are quiet quitting are doing so by working reasonable hours, not reading or responding to emails or calls after they’ve logged off for the day or left the office, refusing to take on tasks that they will not be able to complete without sacrificing their evenings or weekends to do so, taking vacations, etc. They are standing up against the hustle culture mentality. 

The question that remains is how employers will respond to workers who are setting reasonable boundaries. We all know the key to a happy relationship is setting and respecting boundaries. But will employers respect the boundaries workers are setting? Also, are they required to by law? 

The law that certainly comes into play when thinking about the concept of quiet quitting is the Fair Labor Standards Act, the FLSA. The FLSA requires employers to pay minimum wage and overtime for most non-exempt employees. But these protections only apply to non-exempt employees. This can lead to employers attempting to get around the requirements of the FLSA by classifying employees as exempt. However, such a classification is not always proper (i.e. not all employees can be exempt). 

To be properly classified as exempt, an employee must fall under a specific FLSA exemption based on their job duties and be paid on a salary basis. If your job doesn’t meet the duties under one of the specific exemptions from the FLSA, then you cannot be properly classified as exempt regardless of whether your employer pays you on a salary basis. Similarly, even if your job duties would qualify you to be exempt, you’re entitled to overtime pay if your employer fails to pay you a guaranteed salary. 

Unfortunately, if you are properly classified as exempt under the FLSA, there may not be as many protections for quiet quitting as you would have hoped . . . at least not in Texas. However, every case is unique. 

If you feel like your employer has violated the FLSA by misclassifying you or failing to pay you overtime, contact an employment attorney right away to make sure you understand your rights and have the best chance of recovering what money you may be entitled to. Or, if you simply feel you are overworked and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. If you want to attempt to make change in your workplace, there may be ways to go about it that will help protect you. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Most people, including defense attorneys, think that actionable retaliation can only occur if the employer fires the employee for engaging protected activity or demotes them or cuts their pay.  In other words, these people think that it must be an ultimate employment action.  But that is simply not the case.  It used to be, but as the War Doctor said in the Doctor Who 50th Anniversary Special, “no more!”

So what is the standard?  The standard is that for purposes of retaliation, all a plaintiff must show is an action that is “materially adverse.”  That standard came from the 2006 Supreme Court case  Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. 53 (2006).  Again, as indicated above, that was a change from what several Circuit courts had been doing, which is requiring an ultimate adverse action.  As defined by the Supreme Court, a “materially adverse action” is much broader than an ultimate action.  Specifically, an employment action is materially adverse is any action that “would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Supreme Court even provided examples of the kinds of actions that could in the proper context be “materially adverse.”  Specifically, the Supreme Court said that under certain circumstances, something as small as being excluded from business lunches or a schedule change could meet that standard.  The Supreme Court stressed that “context matters” and that whether something is significant will depend on the particulars of that case.

The other great thing about the above standard is that it basically applies to all retaliation statutes regardless of whether the underlying protected activity is unlawful discrimination, wage complaints, or fraud.

Regarding reprimands, the Fifth Circuit has described generally when such things rise to the above “materially adverse” standard.  A reprimand is actionable retaliatory conduct if it results in consequences such as changes to compensation, job duties, raises, promotions, bonuses, or job title.  So, for example, if the reprimand that you received prevents you from being considered for a merit increase or able to be promoted to a new position, then it is an actionable adverse action for a retaliation claim.  And that makes sense to me.  The whole purpose of the anti-retaliation provisions is to encourage reporting of potentially unlawful conduct.  If you thought that you might not be considered for promotion or a bonus or a raise, then you might not report discrimination that you felt you were experiencing or that saw other experience.  

Regarding transfers to other positions, the Fifth Circuit has similarly described when such things meet the “materially adverse” standard.  Essentially, a transfer is considered a materially adverse action if it is the equivalent of a demotion with one key difference: the transfer does not have to affect the employees pay.  Here is what the Fifth Circuit has said about that:  (“[T]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.”  Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007).  Again, this makes sense to me.  Otherwise, there would be this huge loophole for employers to pretty openly retaliate against individuals as long as the company did not cut the pay or title of an employee.  To use an extreme example, imagine a senior vice president reported sexual harassment by the company president.  The president then responds by changing the SVP’s job duties to include only sorting mail.  Every other SVP at that company would probably now think twice before reporting other unlawful conduct that they experienced or witnessed.    

If you think you have been retaliated against for reporting unlawful conduct, you should consider talking to an employment lawyer like those at Wiley Walsh, P.C. or Wiley Wheeler, P.C.  We have experience in handling these types of matters and would be more than happy to discuss any potential avenues you might have.    

       

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Removing and remanding a case to and fro state court is a rather straightforward process. Yet, there still exists a variety of procedural quirks and often unused processes that can make this a daunting task. In this blog I would like to present a very basic outline of that process.

When the time comes to file a lawsuit choosing where to file is a decision of pivotal importance. Where the case is filed can substantially influence the outcome of case. Depending on the nature of the claims involved it maybe to one’s advantage to keep a case in state court if possible. This is because many of the procedural mechanisms that would allow a defendant to seek dismissal of a case are not as readily available in state court. Yet, keeping a case in state court can be a challenge in an of itself. In this blog I would like to discuss a bit about the process of removing a case from state court to federal court, and how to try and get it back to state court. 

 First, in federal court there are two main ways in which a court can have the jurisdiction to hear a case. The first is if the case presents a question of federal law. In other words, does it involve a federal law or claim. The second is if the court has diversity jurisdiction. For this to exists the amount in controversy needs to exceed over $75,000 and each of the plaintiff’s citizenship must be diverse from each of the defendant’s citizenship. If either of these scenarios exists, then a case may be removed from state court to federal court provided that the motion seeking such relief is brought within 30 days of when the defendants were served.

 Once a defendant has sought to remove a case from state court to federal court, then the case is automatically transferred for further proceedings in the federal court. At that point, if the plaintiff wants to move for the case to be remanded back to state court, they must do so within 30 days if they are arguing that the removal contained a procedural deficiency. A failure to do so will most likely result in the court holding that the procedural deficiency was waived by the plaintiff. But, if the plaintiff is arguing that the court did not have subject matter jurisdiction to hear the case, then it may file the motion so long as a final judgment has not been rendered. 

 For example, let’s say that a plaintiff sued three separate defendants. Two of the defendants and the plaintiff were citizens of Texas, and the third defendant was a citizen of another state. If the third defendant were to remove the case on the basis of diversity jurisdiction it would ultimately fail because complete diversity is not present among the parties. Nonetheless, the plaintiff would need to draft and file a motion to remand with the court outlining that the court lacks the jurisdiction to hear the matter. Since the motion to remand would not be based on a procedural ground it would not necessarily be subject to the 30-day time limit, but it would still be advisable to file the motion as soon as possible. 

 This, though, is a very clear-cut example. Often times determining the citizenship of companies and dealing with procedural quirks can make this a unique experience for most lawyers. That is why a thorough analysis of the statutory language, case law, and the facts at hand are a necessity.

 While the above is a very basic outline of the removal procedure, this is an area of the law that can times present unique issues that require thoughtful and precise action. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. We can provide you with the legal experience that your case deserves.

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

You are standing in the line of a supermarket. As the queue tests your patience, you take a brief glance towards the tabloids and a certain headline captures your attention. It appears that there was a recent assassination attempt on the life of your prominent state senator. What’s more, the dubious article mentions you, specifically, by name, helpfully accompanied by one of your recent photos, and paints you as the perpetrator. You rapidly go through the week’s activities in your mind, none of which involve attempting to murder a high-profile politician. You thus do what any reasonable person would do in such an unreasonable situation: you lawyer up.

As outlandish as this scenario may seem, a similar incident recently occurred with famed videogame developer and director, Hideo Kojima. On July 8, 2022, Shinzo Abe, the former Prime Minister of Japan, was assassinated in the city of Nara in Japan. The murderer was immediately apprehended and detained. However, shortly thereafter, a Greek news station, an Iranian news outlet, and a French politician posted stories of the incident, but, oddly, accompanied their postings with images of Kojima, implicating him as the perpetrator. The different outlets all deleted or modified their postings after realizing the error, but not before Kojima, rightfully, threatened a libel lawsuit.

Libel is a written form of defamation that differs from its sister tort, slander, which is an oral form of defamation. In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

Texas happens to be one of few states that has laws that consider certain types of statements to be defamatory per se, meaning that they are automatically considered defamatory by law. Defamatory per se statements include statements that exhibit that the plaintiff (1) is incompetent in his job, trade, or profession; (2) has an infectious or serious disease; or (3) has committed a serious or notorious crime. In Kojima’s situation, he would more than likely fall under the third category of defamatory per se statements, given that the news outlets claimed that he had committed murder. However, most individuals, would more than likely find themselves in the first category.

Nonetheless, it is worth noting that libelous statements are statements of fact, not opinion. Suppose that an employer, on public record, claims that X is a bad employee. If X had an employment record of numerous complaints, write ups, follies, etc., then a reasonable person would consider X to be a bad employee, thus making the statement by the employer true and not defamatory. However, if X had a pristine record, high marks, and numerous accolades, then the employer’s statement could be considered defamatory given that no reasonable person would consider X to be a bad employee.

On the other hand, suppose the employer claims that she believes that Employee Y, a model employee, could use work in her social skills when it comes to handling clients. Even if Y had a pristine record, this statement would more than likely not be considered defamatory given that the employer’s statement seems to be constructive and not necessarily based on fact; it is suggestive rather than factual.

Realistically, most of us (one would hope) will not be falsely and baselessly implicated in the murder of a high-profile figure. However, that does not suggest that some of us will not be faced with false statements that affect our reputation and future prospects. If you find yourself in such a situation, then it would be prudent to consult with an attorney and see what, if any, options you may have. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Yes.  At least, in the Seventh Circuit.

Wanna know more?  Of course, you do!

So let’s talk a little about the exciting (as employment law cases go) new case of Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022). 

In Ziccarelli, the plaintiff had worked at the Cook County Sheriff’s office for 27 years as a corrections officer.  In September 2016, Ziccarelli spoke to the office FMLA manager about taking additional FMLA leave that year.  At that time, Ziccarelli had already used about two-thirds of his available FMLA leave.  According to Ziccarelli’s account of the conversation, the FMLA manager told him not to take any more FMLA leave that year or he could be disciplined.  Of course, the FMLA manager hotly disputes this.  However, for lawsuits at the summary judgment procedural stage, all evidence and testimony must be viewed in favor of the plaintiff.  Therefore, Ziccarelli’s account of the conversation is the only one that matters.  I told you this was exciting!  After that conversation, because he feared he would be fired if he took FMLA leave, he retired.  It is important to note that he retired without taking FMLA leave or being disciplined in any way, shape, or form.

So the question presented to the Seventh Circuit was is whether or not it is unlawful interference with FMLA rights even if FMLA rights or benefits were never actually denied.  The Seventh Circuit says yes, discouraging someone from using rights they have is interreference.  The court reached that conclusion by analyzing the statutory text and the Department of Labor’s FMLA regulations as well as the FMLA’s purpose and context.  For example, the statute states that it shall be “unlawful for any employer to interfere with . . . the exercise of or the attempt to exercise” FMLA rights.  29 U.S.C. § 2615(a)(1) (emphasis added).  Therefore, the court concluded, interference does not require an actual denial of benefits.

Now, to be sure, a plaintiff must still show harm from being discouraged to exercise such FMLA rights even if the benefits were not denied.  In Ziccarelli, the Seventh Circuit said said such prejudice was shown because the plaintiff decided not to ask for FMLA leave because of the discouragement: “Evidence of a link between Shinnawi’s alleged discouragement and Ziccarelli’s decision not to take his remaining FMLA leave for 2016 is sufficient to require a trial.”  Ziccarelli, 35 F.4th at 1090.

After all that excitement, I feel I must mention that the Seventh Circuit Court of Appeals does not have jurisdiction over Texas or other courts in the Fifth Circuit, which is our federal court of appeals circuit.  That means the Ziccarelli opinion is not binding precedent here.  However, opinions issued by the court can be used as persuasive authority and the Fifth Circuit has often cited to Seventh Circuit cases. 

So the million dollar question is will this hold up in the Fifth Circuit?  There is reason to hope this reasoning could be extended to the Fifth Circuit.  Both Circuits use a similar formulation of the prima facie elements.  Specifically, both the Fifth Circuit and the Seventh Circuit have described in some cases the final two elements as “the employer interfered with his exercise of FMLA rights, and . . . he was prejudiced as a result.”  Compare  Park v. Direct Energy GP, LLC, 832 Fed.App’x 288, 293 (5th Cir. 2020) with Ziccarelli, 35 F.4th at 1084.  Further, the Fifth Circuit has said, citing regulations, that discouraging FMLA is interference.  See Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 346 (5th Cir. 2019).

If you think your FMLA rights have been interfered with, you should contact an employment lawyer to discuss the facts of your case and what options you might have moving forward.  The board certified attorneys at Wiley Walsh, P.C. have handled numerous FMLA interference cases.  You can book a consultation online at www.wileywalsh.com or by calling 512-271-5527.  

Julie St. John
Texas Employment Lawyer Julie St. John

When I first read an article several years ago about a Google employee living in the company’s parking lot, I thought to myself, “brilliant.” He had everything he needed at the office—food, gym, shower, electricity, etc.—except for a place to sleep. So instead of renting an expensive San Francisco apartment where he would likely spend very little time, he bought a box truck, tossed a mattress in the back, and parked it at work. No doubt he had the best commute time of anyone at the company. 

For the record, I still think this was absolutely brilliant. Now, it seems like more and more people agree! Although the box-truck dwelling Google employee actually moved into an apartment during the Covid-19 pandemic when he no longer had the ability to work in the office or use all its amenities, many workers residing in non-movable dwellings decided to do the opposite. They hit the road and started living the #vanlife. 

Of course, there were also a lot of people who may not have gone to such travel/adventure extremes, but instead just moved to another location, perhaps even to a different state or country. However, the motivations were still the same – the freedom to choose how and where they would live without giving up their careers. Although some moves were meant to be temporary, some were not.  Even in some cases where the moves were perhaps intended to be temporary, they may have ended up becoming permanent. 

So, what is one to do when they have relocated in one way or another when many employers are requiring workers to return to the office on either a full-time or part-time basis? 

This requirement is quite simply a non-starter for many. Even if they still live only a short walk from their office, there are still a lot of folks out there that would rather find a different job than go back to the office. This is obviously the easy answer. But for others, they may not feel like they can simply up and quit. They may find themselves wondering, is there anything that protects me from having to go back? 

The simplest answer is that absent the agreement of your employer, you’re probably going to have to quit or return. Unfortunately, your employer is allowed to dictate your presence in the office regardless of what it allowed you to do during the pandemic. Your employer may have told you they didn’t mind you moving out of state or traveling around the country working in a van. Yet, that doesn’t mean they have to let you continue on that way. 

Importantly, one key exception to this rule would be if you have a disability and you need to work from home as a reasonable accommodation. Then, your request to do so may be protected under the Americans with Disabilities Act. Although some employers may attempt to deny such an accommodation request by arguing it would not be reasonable, it will likely be a difficult argument for them if you were able to perform all the essential duties of your job remotely during the pandemic. 

If you have been fired because you could not return to the office and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. Or, if you have no legally protected reason not to return but also don’t want to quit, never forget about the Google employee living in his box truck in the parking lot for years. It’s always a viable option . . . at least until you get caught. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Over the past few days, I have been outraged by the Sesame Place disaster. I’m not only outraged by what has happened to these young children, but am outraged by the Sesame Place response.  

It is sad when any character at a theme park has to rush off to another location leaving children behind, or simply misses a child. It happens. However, seeing a character deliberately ignore children based on the color of their skin is wretched. 

Like millions of Americans this week, I watched a video of two beautiful, little Black girls be ignored at a theme park by a character they are growing up with, a character that is helping to shape their lives, a character they clearly love and hold dear, all while the little girls innocently wear their Sesame Street backpacks. These children do not understand the character that rejected them at the theme park was just a terribly flawed person dressed in costume. All these children see is she got a high five, she got a hug, and I was rejected. Now, mothers and fathers have to console…reassure…and explain what has happened at the end of what should have been a joyous day. “This Rosita” should have been fired. I’ll say this Rosita knowing that different people will dress as this character at different times.

The video shows this Rosita waving off the two girls and turning away.  In response to the video, Sesame Place stated that, “The Rosita performer did not intentionally ignore the girls and is devastated about the misunderstanding.” Did they really say Rosita is devastated? This is laughable. No, those children, their parents, the public are devastated.  Sesame Place attempts to write this off as Rosita signaling “no” to people in the crowd requesting that Rosita hold their child for a photo.  Wrong response Sesame Place.  Just…wrong response.  

This Rosita’s actions were abhorrent. Yet, Sesame Place yours were more so. Now, Sesame Place, you should face the anger of millions of Americans because of the way you handled the situation! Or better put, chose not to handle it. Your initial response signals that you excuse and condone such discriminatory behavior. The subsequent apology, acknowledgment that “it’s not OK,” and announcement of employee training sends the signal that you are insincere and only changing your tune for the benefit of Sesame Place’s business interests.   

I do not presume to know the true character of the people at the top of the Sesame Place hierarchy. However, if your business truly abhors discrimination in any form, the best response when something happens is to own it and rapidly address it. You’ll get more respect and probably a lot less backlash. 

No one expects Sesame Place, or any other business, to be perfect. Sometimes the wrong people will get past the application and hiring process and enter the building starting fires. When that happens, lies and cover ups only add fuel to the flames. Sesame Place, and other businesses, your responsibility is to douse the flames by taking the appropriate actions.  

For any reputable business, it does not serve your business interests to protect employees that show – through their discrimination against others – that they have very little concern for those business interests.

In Plaintiff’s employment law, many employees end up in our office because they work with someone like this Rosita and their employer ignores the discriminatory behavior or worse yet tries to cover it up. If you work with someone like this Rosita who has discriminated against you, or your employer has retaliated against you for complaining about discriminatory treatment you have been subjected to, contact an employment lawyer right away.  

Businesses need to take better care because sometimes the difference between a resolution and a revolution is the response.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

With the increase of remote work and tech jobs in Texas, moonlighting appears to be on the rise. This naturally leads to the question: can my employer fire me for moonlighting? There is no simple bright line rule. Instead, it requires knowing what your company’s rules are and knowing what agreements you have signed. 

 This past week I had a consultation that brought up an interesting question. The consult wanted to know what laws protected him from getting another job while still employed with his current employer. To quote them, they wanted to know if they could get in trouble for having a “side hustle” or secondary income stream. The practice of having a side hustle is becoming more and more common. In particular, it is big in the tech industry where many employees either freelance or operate a completely different small company. Having a second job is often referred to as moonlighting, and the question of whether it is legal requires a rather longwinded answer that almost always falls into the purview of what your employer’s workplace policies state. In this blog I would like to flesh out that answer. 

 First, with the exception of serving in the military, there is no specific law that outlines whether someone can hold a second job. This means that instead of looking at statutes, we turn to either contract law or the employer’s internal policy to find the answer. 

 Under contract law the obvious answer is a non-competition clause or sometimes duty of loyalty clause that limits the employee’s ability to seek secondary employment. While the answer to what a non-compete is can be a full blog answer, in short it is essentially an agreement between an employee and an employer where the employee agrees to not compete during the term of their employment and sometimes for a period of time after their tenure with the employer is done. Under the Texas Business Code, these agreements are fully enforceable provided that they are reasonable in scope, geographic area, and time. Thus, if an employee has signed a non-compete agreement and their second job competes with their primary employer, then they may very well be in violation of that agreement. 

 If an employee was to violate a non-compete with their moonlighting, the employer may be entitled to seek an injunction from a court to stop the employee from continuing to breach the agreement. Further, if the employer is able to prove that it has suffered an economic harm from the employee’s engagement in the second job, it may choose to seek damages from the employee. As such, it is imperative to take note when joining a company if you will be forced to sign a non-compete agreement. 

 Next, as stated above, there are no specific laws that state that you cannot have a second job. Nonetheless, this should not be taken to mean that an employer cannot fire you for working a second job. This is because  employers typically have specific company rules that forbid moonlighting. Moreover, even if you are not subject to a non-compete, sometimes employers have internal conflict of interest rules. This means that absent some discriminatory application of this rule, an employer may terminate an employee for having a conflict of interest i.e. a second job. 

 Lastly, due to the fact that Texas is an employment at-will state, an employer is still able to discharge an employee for any reason, even if false, so long as it does not run afoul of another law. Thus, even if there is no rule against a second a job, an employer may still choose to terminate an employee for moonlighting. Again, this is assuming it is not for an illegal reason. 

 Ultimately, when it comes to moonlighting it is always best practices to request a meeting with your employer to discuss if whether your engagement with another employer would be acceptable. The old adage “it is better to ask for forgiveness than permission,” is inapplicable here. But, as was alluded to above, the mere fact that Texas is at-will or that there are internal policies not allowing moonlighting does not always mean that it is legal. Often times these inquiries require a holistic analysis by an attorney that understands the law and is willing to fight for your rights. 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 Employer Lawyer Colin Walsh

As the fog rolled in and the sound of a lonely trumpet drifted through the air, I ducked inside a hotel on Mission Street.  It was Thursday.  The hotel was not too far from the lamb chops at John’s Grill and just a few blocks away from Spade and Archer’s old office on the fifth floor of the Hunter-Dulin Building.  I guess it would be just Spade there now.  If he was still alive.  It was a nice hotel, big spaces, bright lights.  It was the kind of place nice people went for nice conventions.  And indeed, that’s why I was there.  I checked the slip of paper in my hand.  This was it, the location of the National Employment Lawyers Association’s annual convention.  I pulled my fedora lower down on my face.  I had places to be.

Last week, our firm went to the National Employment Lawyers Association’s annual convention in San Francisco.  It was the first in-person convention in two years.  As a plaintiff’s employment lawyer, it is certainly one of the highlights of my year.  The convention itself is around two and half days of lectures and presentations on all things employment law related.  There are sessions on tons of things like causation standards, trial techniques, and negotiation.  Lawyers and law professors from all across the country come to the convention.  It is wonderful to meet so many people doing the same thing and who want to help you grow as an attorney fighting for your clients’ rights.  

It is always deeply inspiring and this year was no different.  For example, on the first day of the convention we heard from plaintiffs who successfully brought cases against Tesla and Amazon for race discrimination, and another plaintiff who sued a state university for sexual assault.  And that was just before lunch!  Then we heard from the person who helped form the first ever union of Amazon workers in the United States.  All of the speakers and the presentations give you hope for the future and energize you for the rest of the year.        

Every year, I learn something new and become a better attorney for it.  Every year, after attending two and half days of presentations, I am always eager to get back to the office so that I can try those new things.  Going to the convention and attending the presentations definitely enables me to better represent my clients in their cases.  Whether it’s a different technique for noticing and taking depositions, or a different way of seeking discovery from a company, my toolbox always expands after attending a NELA convention.

It is not all work, though.  We also had a chance to do some sightseeing around the city, go to a baseball game, and a hike in Muir Woods.  Some lucky people—ok, just me—saw some of the places mentioned in the book and movie, The Maltese Falcon, which turned out to be right around the hotel. It was my first time in San Francisco, and I would definitely return.

  As I have been writing this blog, I have been trying to think of some way to end it in a noir-ish fashion befitting Fog City or Baghdad by the Bay, but I haven’t come up with anything.  The problem is that noir is too cynical, too jaded, even hopeless to end this blog post with because I feel inspired to get back out there and fight for my clients’ rights.  And I will, right after I see a guy about a certain bird. It’s uh, the stuff dreams are made of.