In today’s world we cannot ignore that social media is a huge part of our everyday lives.  What you post is available for others to see.  Even if your social media accounts are private, your posts are available to be seen by your family, friends, and even coworkers once you’ve accepted or extended a “Friend Request.”

But, that’s my private life, right?  It can’t affect my employment, right?  Wrong.

Social Media and Applying for a Job

Continue Reading Social Media and Employment – “But that’s private, right?”

On August 27, 2020, the Fifth Court of Appeals of Texas at Dallas reversed the dismissal of Fernando Herrera’s Texas Whistleblower case against Dallas Independent School District. In doing so, it ordered the case back to the trial court for further proceedings.   

The lawsuit alleges DISD terminated Mr. Herrera because he complained to Child Protective Services (“CPS”) about suspected child abuse by other DISD teachers. The lawsuit was initially filed in June 2018 in Dallas District Court.

The lawsuit states Mr. Herrera made two reports to CPS. The first report was made on or about March 31, 2017 after Mr. Herrera witnessed a DISD teacher inappropriately touching a student in front of several other teachers. The second report was made on May 16, 2017 after a concerned parent informed Mr. Herrera she suspected a teacher inappropriately touched a student. On May 17, 2017, DISD put Mr. Herrera on administrative leave.

Continue Reading Recent Texas Whistleblower Act Decision from the Dallas Court of Appeals

We have a lot of potential clients come to us because they are working in what they consider to be a hostile work environment. Their boss yells at them, belittles them, intimidates them, mocks them, etc. Sometimes this treatment is constant. Sometimes this treatment is intermittent but extreme. But generally speaking, these are not petty slights or simple annoyances; it is something more. Overall, these employees are working in an environment a reasonable employee would consider hostile, intimidating, or abusive.

Common sense would dictate that an employer should not be allowed to subject its employees to such treatment. However, unfortunately, there is no federal or Texas law that broadly protects employees from a hostile work environment.

Continue Reading The Hostile Work Environment

One issue that comes up repeatedly is whether an individual is an independent contractor or an employee.  The reason this comes up quite often in an employment law context is because most employment laws only apply to employees.  For example, the retaliation provision of Title VII, which prohibits retaliation for reporting unlawful discrimination, expressly applies only to employees.** The difference also matters for benefits, overtime pay, minimum wage, and tax consequences.  Very broadly speaking, independent contracts are usually cheaper for employers than employees.  Because of that, employers often misclassify employees as independent contractors.  This blog post looks at what that means.

Continue Reading Are you really an independent contractor?

The Family and Medical Leave Act provides eligible employees with unpaid, job-protected leave for certain family and medical reasons.  When employees request or take leave, these workers have protections from FMLA interference and retaliation.  This means that employers may not interfere with a worker’s rights to take FMLA leave and may not take adverse employment actions (e.g., write ups, demotions, terminations) against employees for exercising their rights under the FMLA.

Am I protected under the FMLA?

For employees to have protections under the FMLA, their employer must have a minimum of 50 employees within a 75-mile radius of the work location. Additionally, the employee must have worked for the employer for at least a year and must have worked at least 1,250 hours during that year. If all these conditions are not met, the employee may not be protected by the FMLA.

Continue Reading Can I really be fired while on FMLA leave?

One would be hard pressed to find someone who does not know that we are afforded free speech under the First Amendment of the United States Constitution. Similarly, we are also afforded the same right under the Texas Constitution Article 1 Section 8. Indeed, there are very few rights that are as well-known as the right to free speech, yet, the implications or effects that this fundamental right has in our workplace are often misunderstood and overestimated. My goal is to help clarify or shed light on a few misconceptions that I often see in my day to day practice.

Continue Reading Common Misconceptions Regarding Free Speech

When you have found an attorney who is willing to file a lawsuit on your behalf, or perhaps you have decided to file one yourself pro se, you may think this guarantees your day in court. After all, the Seventh Amendment of the United States Constitution states: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.”

Continue Reading Filing a Lawsuit Does Not Guarantee Your Day in Court – Be Prepared to Fight for It

When someone gets treated unlawfully at their job because of that person’s race, age, gender, sex, sexual orientation, disability, religion, national origin, or color that person suffers more than just loss of income.  A person’s job is often tied to their identity, their reputation, their sense of worth, and sense of purpose.  Losing a job, not getting a promotion, not getting hired, or being subjected to severe or pervasive harassment causes very real pain and suffering.  It can strain friendships, estrange family members, break up marriages, and ruin lives.  Because unlawful employment discrimination causes that kind of actual damage, most employment laws allow a person to recover money for those things.  In employment law, these damages are called compensatory damages and can be recovered in lawsuits against private employers, state and local government employers, and federal agencies.

Continue Reading Mental Anguish Damages in Texas and the Fifth Circuit

We all know that the First Amendment gives us the right to free speech. But, when it comes to the First Amendment, what you don’t know can hurt you.

TRUE: The First Amendment allows people to express their views.

FALSE:  The First Amendment protects employees from termination.

First Amendment protection and job protection are not intertwined. 

Many private sector employees fail to realize that their right to free speech does not prevent employers from limiting that speech.  Freedom of speech in the workplace protects public sector (i.e., government) employees.

Continue Reading Taking the First Amendment to Work: Can I really be fired for saying that? Private Sector Employees

While commissions and bonuses are subject to the various laws that regulate wages, such as the FLSA and the Texas Payday Law, they are unique in rather important manners. The most obvious way that they differ from hourly-based and salary-based wages is when they are considered “earned.” Put another way, if you are an hourly worker, your wages are considered earned as soon as you start working. If you have worked for an hour, you have earned an hour’s worth of wages. If you have worked half an hour, you have half of your hourly wage. It is simple. But this same inquiry varies dramatically with workers who earn their wages based on commissions. Continue Reading How Can I Get My Unpaid Commissions?