Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

In case you missed part one, the cursory intro blog can be found here. 

As described below, this blog serves as part two covering a deeper look into the benefits and payment provided to uniformed service members in the workplace. Such benefits include pensions, health benefits, and even vacation leave. If you’re wondering whether your employer provided health coverage upon request where your leave was for more than 30 days or less than 31 days then keep reading. Similarly, if you’re wondering whether your employer must grant your pension plan benefits which accrued during your military service then also keep reading. This brief blog broadly covers the answers.

Under USERRA, employees who leave their civilian jobs to serve in the uniformed services are entitled to continue receiving health insurance coverage while they are on military leave. If the employee is enrolled in an employer-sponsored health plan, they can maintain their coverage for up to 24 months during military service, though the employee may be required to pay up to 102% of the premium cost for the continued coverage. This provision is designed to ensure that service members do not experience a lapse in essential healthcare during their absence from civilian employment. Upon returning from military duty, the employee’s rights to reinstatement of health coverage are similarly protected; they must be reinstated in their previous health insurance plan, as though their employment had not been interrupted by military service.

In addition to health benefits, USERRA also addresses the issue of pay and other compensation. While military service typically results in a temporary loss of civilian income, USERRA ensures that service members are entitled to the same pay and benefits they would have received had they remained employed, particularly in the form of compensation during the reemployment process. This includes adjustments for any pay increases or bonuses the employee may have missed during their time away.  A vivid example as it applies to vacation leave: a  service member must be permitted to utilize any vacation leave which accrued prior to beginning their service instead of being offered unpaid leave. This permittance is by the service member’s request and the service member cannot be forced to use vacation time for the duration of the military service he or she was called to perform. Employers are prohibited from discriminating against service members on the basis of their military service, and must reinstate the employee to their prior position or an equivalent position with the same level of pay, benefits, and seniority.

 Notably, USERRA also protects the employee’s rights to other benefits like pension and retirement contributions during their military service. Contributions to retirement plans must be made by the employer for the duration of the employee’s military absence, ensuring that the service member’s long-term financial security is not adversely impacted. In summary, USERRA plays a vital role in safeguarding the financial and health benefits of service members, ensuring they do not suffer undue hardship due to their military commitments and can seamlessly transition back into civilian employment with all their rights intact.

If you think your rights have been violated under USERRA, please consult with an employment law attorney. Based on the assessment of the facts, actionable claims can be brought first to the attention of the Department of Labor Veterans’ Employment and Training Service. This is the governmental entity which handles USERRA complaints. A qualified attorney can assist in the navigation of filing the Form 1010 to initiate an investigation by VETS. Stay tuned for Part Three.

#DepartmentofLabor #Veterans #USERRA

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

As employment lawyers, we often meet with potential clients who don’t quite understand the difference between plain English retaliation and the kind of retaliation that rises to the level of actionable retaliation.

There’s a good reason why people don’t know the difference. The plain English definition of retaliation is completely different from the legal definition. Not all acts of plain English retaliation rise to the level of “actionable retaliation.” This blog explores the difference between these two and what they mean in the context of your job.

What Is Retaliation?

When I say “plain English retaliation,” what I mean is the layperson’s definition of retaliation. Merriam-Webster defines retaliation as: “to return like for like. [E]specially : to get revenge” or “to repay in kind.” 

In the workplace context, this can look something like the following:

Jordan works as a team lead for a mid-sized tech company. Jordan recently filed a complaint with Human Resources (HR) about his manager, Alex. Jordan alleged that Alex always assigns the most desirable projects to Alex’s best friend, Brent. Alex does this even when Jordan has more bandwidth for a new assignment than Brent. HR launched an investigation and interviewed Alex. As a result, Alex learned of Jordan’s complaints against him. 

Following the HR investigation, Jordan began noticing Alex’s retaliation. Jordan was no longer assigned to any high-profile projects. Alex stopped communicating with Jordan in person and started using email exclusively. Within three weeks of the HR complaint, Alex filed a very negative performance evaluation of Jordan, jeopardizing Jordan’s job. Jordan had never received a negative performance evaluation and had always maintained excellent performance records prior to his complaint. 

Here, it at least appears that Alex is “retaliating” or “seeking revenge” against Jordan for Jordan’s HR complaint. However, while this may be retaliation under the plain English definition, it does not constitute actionable retaliation. 

Unfortunately, there are no federal or Texas state laws that protect Jordan in this scenario. He has a personal issue with his supervisor, and now his supervisor has it out for him. It’s not unlawful for Alex to dislike Jordan for reporting him to HR. Sadly, Jordan does not have a cause of action to sue the company because of Alex’s “revenge.” 

Ultimately, because we live in an at-will jurisdiction, Alex could very well terminate Jordan’s employment. Hopefully, HR would see things differently here, especially because Jordan had a great performance record before his HR complaint. However, if HR sides with Alex, there’s not much Jordan can do—unless he can identify something that renders Alex’s retaliation actionable. 

What Is Actionable Retaliation?

Actionable retaliation, in a general sense, occurs when an employer takes an adverse action against an employee because the employee engaged in a protected activity. 

Protected activities might include:

  • Reporting discrimination or harassment
  • Participating in an investigation regarding someone else’s discrimination complaint
  • Filing a complaint with a government agency, such as the Equal Employment Opportunity Commission 
  • Exercising rights under employment laws, such as requesting medical leave under the Family and Medical Leave Act 

Examples of retaliatory acts might include demotion, termination, denial of benefits, reduction in hours, or even subtler forms like sudden exclusion from meetings or unfavorable work assignments.

For retaliation to be actionable, it must meet certain legal thresholds:

  1. Protected Activity: The employee must have engaged in a legally protected activity, such as those listed above.
  2. Adverse Action: The employer must have taken an adverse action that would dissuade a reasonable person from engaging in the protected activity. This includes significant actions such as termination, demotion, or a substantial change in job responsibilities. Trivial slights or minor annoyances often aren’t enough.
  3. Causal Connection: There must be a clear link between the employee’s protected activity and the employer’s adverse action. Timing can play a significant role here. For example, if an adverse action closely follows a complaint, it may suggest retaliation.

Back to Jordan’s example, if his original complaint to HR was based on something protected under federal or state laws, then any subsequent “revenge” from Alex could be actionable. If Jordan’s HR report was that Alex was discriminatorily depriving Jordan of work based on Jordan’s age (64 years old); then Alex learned of the HR report; and Alex began retaliating, that would be actionable. That is because age is a protected class under federal and Texas law.

Conclusion

Understanding the distinction between everyday retaliation and actionable retaliation is important for those who find themselves in workplace disputes. Employees should be aware of their rights and the thresholds they must meet in order to pursue legal action. If you want to learn more about whether you are being retaliated against, please call one of our Texas employment lawyers for a consultation.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

This blog looks into the criteria and obligations an employer must satisfy with respect to tipped employees. Pursuant to the Fair Labor Standards Act (FLSA), a tipped employee is an employee who regularly receives $30 per month in tips.

If you’re a tipped employee or are interested in learning more about tip credits and pools, keep reading. Section 3(m)(2)(A) of the FLSA governs the criteria for employers to take tip credits. A tip credit is the amount an employer takes towards the applicable federal/state’s minimum wage and overtime obligations. From here, this tip credit is utilized by the employer where the employee who regularly receives tips from customers coupled with wages, meets this minimum wage threshold. So here in Texas the applicable minimum wage is $7.25 for non-tipped employees. 

For tipped employees, an employer is obligated to pay the tipped employee at least $2.13 per hour. Here’s where the tip credit comes in, an employer is permitted to take the tip credit that is equal in difference between the direct or cash wage it pays the tipped employee and the applicable minimum wage.[1] (Please note that the federal minimum wage is $7.25 but some states may retain a higher minimum wage such as California for example.) So going off of the federal minimum wage and the minimum wage in Texas, the maximum tip credit that an employer may claim is $5.12 per hour. An employer is not permitted to retain a tip credit which exceeds the amount of tips the tipped employee actually receives. Employers who claim this tip credit must be able to show that in each workweek, the tipped employee is making the applicable minimum wage with direct or cash wage plus tips. 

Prior to taking a tip credit, an employer must inform employees of the above mentioned criteria. Moreover, an employer must also ensure that all tips received by the employee are kept by the employee. An exception to this is where tipped employees participate in a tip pool.

Tip pooling is a concept provided for by the FLSA, it permits employers to require employees to share their earned tips with other eligible employees. Currently, there is not a limit on the percentage or amount an employee may contribute to the pool. Other guidelines which dive further into tip pooling can be found on the Department of Labor’s (DOL) website regarding tipped employees. Notably, one of the most important takeaways from the tip pooling concept is who may not participate. The FLSA provides that an employer, manager, or supervisor may NOT participate in tip pooling. In fact, the FLSA prohibits them from retaining any tips even where a tip credit is not utilized by the employer OR whether the tips are received directly or via tip pool. An employer is also prohibited from requiring a tipped employee to forfeit tips to it, a manager, or supervisor. A manager or supervisor is only permitted to retain tips that they directly receive from a customer for a service he or she provided directly. 

In sum, tip credit is real. Sometimes misconceptions regarding the applicable minimum wage of tipped employees looms but this blog aims to resolve any confusion. The reason why some tipped employees, especially here in Texas, receive $2.13 per hour is because of the employer’s applicable tip credit. So long as the employee is receiving minimum wage each workweek, the employer is permitted to take a tip credit that is the difference between the direct or cash wage it pays directly to the tipped employee and the applicable minimum wage. 

For more information on tip pooling please reference the DOL’s website. Consultations can be scheduled with me here.

[1] https://www.dol.gov/agencies/whd/fact-sheets/15-tipped-employees-flsa. 

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Earlier this year, on National Equal Pay Day, President Biden reminded the country that “women working full-time and year-round are paid an average of 84 cents for every dollar paid to men. In more than 90 percent of occupations, women earn less than men—and these disparities are even greater for women of color and women with disabilities.” 

Wage disparities don’t just negatively impact women. Black and Hispanic men tend to earn less than their White and Asian counterparts. Indeed, across all protected traits and intersections, wage disparities insidiously begin somewhere and seem to interminably widen over time.   

The persistence of these disparities is due to a number of factors, including conscious and unconscious biases, occupational segregation, imposter syndrome, and the historical undervaluation of work typically performed by women and/or minority groups. Frankly, anyone can fall victim to unfair compensation practices. 

How does it begin?

In many jurisdictions, it is still lawful for workplaces to ask applicants directly what they are currently being paid. Even if the interviewing company has much more to offer, it will naturally tailor its compensation package to the current circumstances of the applicant. If the applicant currently has a low salary, the interviewing company need only offer just a touch more to win the applicant over. If the applicant accepts the role, she may be earning considerably less than her new peers who are performing the same work, just because others negotiated better, had more information, or had a better salary at their previous role. Workplaces can similarly ask applicants what their target salary range is and use that intel against the applicant. 

In both examples, the interviewing workplace gets to ask all the questions and garner all the power in the negotiation. Applicants are typically afforded no such privilege in exchange. Prospective salaries are simply shrouded in total mystery.

Pay transparency laws aim to address these systemic issues by equipping workers with the information they need to advocate for appropriate, equitable compensation. When pay structures are opaque, employees lack key information necessary to negotiate fair salaries or even to identify potential discrimination. By lifting the veil on compensation, legislators aim to create a more equitable labor market.

The Nation’s Burgeoning Pay Transparency Movement

Pay transparency laws generally require employers to disclose salary ranges, pay scales, or other compensation details to employees and/or job applicants. 

So far, nine states and DC have pay transparency laws of some kind. Four more states will have similar laws in effect in 2025. 

California’s pay transparency law mandates employers with 15 or more employees to include pay scales in job postings. California further provides a rebuttable presumption in favor of the worker should her employer fail to maintain records as required. 

New York City’s equivalent requires employers to post minimum and maximum wage ranges to job applicants. Colorado’s law goes further by requiring employers to include not only salary ranges but also details about benefits for all job postings—whether internal or public. 

Beyond states with existing laws, several other states and cities are considering similar legislation and local ordinances. As more jurisdictions join the movement, unfair pay practices will improve. 

Challenges

Some employers attempt to evade these laws by providing overly broad pay ranges in their job postings or excluding relevant information to avoid scrutiny. To counteract this, lawmakers and advocates have called for stronger penalties and more robust enforcement mechanisms, ensuring that the spirit of these laws is upheld.

To maximize the impact of pay transparency laws, legislators and advocates emphasize the need for complementary measures. These include enforcing anti-discrimination laws, providing robust training on bias reduction for employers, and ensuring accountability by enforcing penalties. 

Conclusion

As more states and cities adopt pay transparency measures, the cumulative effect may drive a broader paradigm shift—normalizing clarity in compensation and engendering equity and fairness in the labor market. Pay transparency laws empower workers, promote accountability for workplaces, and challenge long-standing inequities. If you believe that you are being deprived of equal pay for equal work, contact one of our Texas employment lawyers today.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

The blog serves as an introductory overview on employment agreements. An employment agreement is a legally binding document that outlines the terms and conditions of the working relationship between an employer and an employee. It is crucial for both parties as it sets clear expectations and provides a framework for resolving disputes. Common provisions in an employment agreement typically include job description, compensation, benefits, work schedule, confidentiality, non-compete clauses, and termination procedures. Each of these provisions serves to protect the rights and interests of both the employer and employee while ensuring mutual understanding and agreement on key aspects of the employment relationship.

Job Description and Duties is one of the first key provisions. This section outlines the role, responsibilities, and expectations of the employee within the company. It may include specific duties, reporting relationships, and performance expectations. A well-defined job description helps prevent misunderstandings and ensures both parties are aligned regarding the employee’s role within the organization.

Compensation and Benefits is another critical provision. It details the employee’s salary, wage rate, and any bonus or incentive structures. This provision should also address the frequency and method of payment (e.g., weekly, bi-weekly, monthly, or via direct deposit). In addition to base compensation, many employment agreements include information about benefits, such as health insurance, retirement plans, paid time off (PTO), sick leave, and other perks like gym memberships or company stock options. Clear terms around compensation and benefits help employees understand what they can expect financially and ensure compliance with wage laws. This is also the section where reference to additional compensation such as stock options may be found. 

Work Schedule and Location provisions typically specify the employee’s working hours, including whether they are expected to work full-time, part-time, or on an as-needed basis. It may also cover shift patterns, overtime rules, and the location of work, whether it’s on-site at the employer’s facility or remote. These provisions can also include flexibility regarding working hours or hybrid work arrangements, especially relevant in today’s work environment.

Another key provision is the Confidentiality and Non-Disclosure Agreement (NDA). Many employment contracts require employees to keep certain business information confidential, even after their employment ends. This is especially true for positions that involve access to proprietary data, trade secrets, or other sensitive information. The confidentiality clause ensures that the employer’s intellectual property, business plans, and customer information are protected. Employees may also be required to return any proprietary materials upon termination of employment.

Non-compete Clauses may also be included, particularly in industries where specialized knowledge or skills are highly valued. A non-compete provision restricts the employee from working for competing businesses or starting a similar business for a certain period of time after leaving the employer. The terms of non-compete clauses typically vary by jurisdiction but must be reasonable in scope, geography, and duration to be enforceable. This provision is intended to protect the employer’s competitive position and intellectual property. Unlike California for example, Texas is still a jurisdiction that enforces non-compete provisions. 

The Term and Termination section outlines how the employment relationship can be ended. It defines the conditions under which either party can terminate the agreement, with or without cause. This section also addresses notice periods, severance pay (if applicable), and any post-employment obligations such as non-compete or confidentiality agreements. Some agreements may also include a probationary period during which either party can terminate the contract with little notice or without cause. Understanding termination rights is crucial for both the employee and employer, as it provides clarity in the event of performance issues or other conflicts.

Other provisions may include Dispute Resolution mechanisms, which can specify the process for resolving disputes, often requiring mediation or arbitration before pursuing litigation. Intellectual Property Rights clauses can be included, particularly for employees who create work products such as software, inventions, or written materials as part of their job duties. Additionally, some contracts include Employment at Will provisions, which clarify that the employee can be terminated for any lawful reason, unless otherwise stated in the agreement.

Finally, Governing Law and Jurisdiction provisions indicate the legal jurisdiction that governs the contract, should disputes arise. This ensures that both parties are clear on which laws apply and where any legal matters will be addressed.

In summary, an employment agreement is a comprehensive document that ensures both the employer and employee are clear on their rights, responsibilities, and expectations. It protects both parties and fosters a more transparent and functional working relationship. Key provisions, including job duties, compensation, benefits, confidentiality, non-compete clauses, and termination procedures, help safeguard each side’s interests and provide a structure for resolving conflicts should they arise.

#EmploymentAgreements #NonCompetes #RestrictiveCovenants

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

Happy Holidays! This is a very special time of year but can feel chaotic across several industries. Restaurants and bars see some of their busiest years to date. Long-anticipated movies are finally being released and the theaters are packed. (Although I am excited for Wicked, I am even more excited for Sonic the Hedgehog 3). And of course, retail stores are busier than ever.

These industries are more often than not filled with hourly employees, who are considered “non-exempt” employees. But what does that mean? 

Under the Fair Labor Standards Act (“FLSA”), employees are divided into two categories: exempt and non-exempt. Exempt employees are exempt from overtime requirements under the FLSA, meaning that your employer does not have to pay you extra if you work over 40 hours a week as an exempt employee. Your employer can elect to pay you extra for extra hours worked, but the law does not require it to. Exempt employees are fixed salary employees, subject to certain salary thresholds per job type. For example, for “white collar” employees, the salary is at least $844/week ($43,888 annually). This will be increased to $1,128/week ($58,656 annually) in January 2025. These thresholds are determined by the Department of Labor (and, therefore, are prone to political pressures). See the applicable tables set forth by the DOL at https://www.dol.gov/agencies/whd/overtime/salary-levels. Please note that this is subject to change.

To be considered a “white collar” employee, you must fit into “executive, administrative” or “professional” roles. Common examples include lawyers, accountants, or software engineers. So, if you have a particularly heavy week, you unfortunately are not entitled to time and a half. You do, however, have the assurance of a steady, predictable salary every week. 

Non-exempt employees, however, are not exempt from the full protections under the FLSA. These are hourly employees or employees who make below the salary thresholds set forth by the Department of Labor, as discussed earlier. These employees must be paid a rate of 1.5 times their regular hourly rate for every hour worked over 40 hours in a week. That means a minimum wage worker making $7.25 must be paid $10.875 for every overtime hour. 

For example, if you are making minimum wage working the concession stand at the movie theater, but you work 50 hours the week Wicked is released, you must be paid $7.25 for the first 40 hours for a total of $290, and then $10.875 for hours 41-60 for another $217.50. In total, you must be paid $507.50 for the week. 

It is important to note that you are not entitled to work overtime by law. However, if you do work overtime, you must be paid accordingly by law. However, if you notice that you are being retaliated against after engaging in protected activity by having your hours cut, you may still be protected.

During this holiday season, be grateful to the non-exempt employees who are working extra hard so that you can enjoy yourself during the most wonderful time of the year. Also . . . tip your servers.

Are you a non-exempt employee who has not been paid appropriately under the law? Contact me in Dallas today or one of my talented colleagues in Houston or Austin for a consultation. 

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

As a Texas worker, you should know that the Fair Labor Standards Act (FLSA) offers many protections and safeguards for employees. In this blog, I’ll explain some key contours of the FLSA so that you can be more informed of your rights under the law.

What is the FLSA?

The Fair Labor Standards Act was enacted in 1938 to set basic standards for minimum wage, overtime pay, fair competition for employers, and employment of minors. A chief goal was to ensure that workers were fairly compensated for their time and labor. Today, the FLSA remains critical for employees across the country, and it is enforced by the U.S. Department of Labor (DOL).

Minimum Wage & Overtime 

One of the core protections under the FLSA is the minimum wage. As of 2024, the federal minimum wage is $7.25 per hour. In Texas, state law does not set a minimum wage higher than the federal rate, so the federal minimum wage applies here.

Overtime is another important aspect of the FLSA. Covered non-exempt employees must be paid time-and-a-half for any hours worked over 40 in a workweek. For example, if a non-exempt employee earns $10 per hour, they must be paid $15 per hour for each hour worked over 40 hours in a given week. However, some employees are classified as “exempt” under the FLSA, which means they do not receive overtime pay, regardless of how many hours they work.

Exempt vs. Non-Exempt Employees

While non-exempt employees are entitled to overtime pay, exempt employees are not. Determining whether or not one is an exempt employee can be tricky. There are several considerations for how one’s status is determined.

Employees who fall into certain categories—briefly described below—may be classified as exempt from overtime pay. There are strict tests and criteria to determine whether an employee meets the requirements for exemption. For example, to qualify as exempt, the employee must meet the following general criteria:

  1. Salary: The salary must meet the federal minimum threshold, currently $684 per week (equivalent to $35,568 annually).
    1. Sadly, just this week, a federal district court in Texas vacated the DOL’s attempt to increase this minimum salary. The DOL had increased the threshold to $844 per week as of July 1, 2024, with plans of increasing it again to $1,128 per week as of January 1, 2025. Unfortunately, the DOL’s agenda has been struck down.  
  2. Duties: The employee’s job duties must primarily involve executive, administrative, professional, computer, or outside sales responsibilities as defined by the FLSA.

Exempt Employment Categories

The executive exemption applies to employees whose primary role involves managing an organization or a significant department or division within it. 

The administrative exemption covers employees engaged in high-level office work related to the business operations or management of the organization. 

The professional exemption applies to employees whose work involves advanced knowledge and discretion in an area of science or learning. 

The computer employee exemption applies to workers with a specific set of duties and skills within the computer technology field.

The outside sales exemption applies to workers who make certain kinds of sales or who obtain requests for services while working outside of the employer’s offices.  

Part-Time Employees and Overtime

Another common misconception is that if an employee is classified as part-time, the employee is not entitled to overtime pay. This is not true under the FLSA.

The FLSA specifies that any employee—whether full-time or part-time—who works more than 40 hours in a workweek must receive overtime pay at time-and-a-half their regular rate of pay. The classification of “part-time” merely refers to the regularity of the employee’s schedule (typically fewer than 40 hours per week). The classification itself has no bearing on whether one is entitled to overtime.

In industries where workers face fluctuating schedules, tracking one’s hours can help ensure that the employer is complying with overtime laws. Failure to do so can result in significant penalties for employers under the FLSA.

What to Do If You Believe Your Rights Have Been Violated

If you believe your employer has failed to comply with the FLSA, there are potential avenues for recourse. An experienced employment law attorney can help you navigate your options and ensure that your rights under the FLSA are fully protected.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Ever wondered what the causation standard for an 11 (c) violation was? Well keep reading because the answer if further addressed below. The Occupational Safety and Health Act (OSHA) of 1970 was designed to ensure safe and healthful working conditions for employees across the United States. One critical provision within OSHA is Section 11(c), which provides protections for whistleblowers—employees who report unsafe working conditions or violations of workplace safety regulations. Section 11(c) is a vital part of OSHA because it safeguards individuals who take the courageous step of reporting their employer’s non-compliance with safety laws, ensuring that employees are not retaliated against for their actions.

Overview of OSHA and Section 11(c)

OSHA was created to address the increasing number of workplace injuries, illnesses, and fatalities during the mid-20th century. The law’s primary aim is to reduce work-related hazards and protect workers’ rights to a safe and healthy work environment. OSHA sets standards for workplace safety, regulates employers’ compliance, and enforces penalties for violations.

Section 11(c) of the Occupational Safety and Health Act specifically deals with whistleblower protections. This section prohibits employers from retaliating against employees who exercise their rights under OSHA, including the right to file complaints about unsafe conditions, request inspections, or participate in safety-related activities. The intent behind Section 11(c) is to encourage workers to report unsafe conditions without fear of losing their job, facing discrimination, or suffering other adverse consequences from their employer.

Under this section, whistleblower protection is extended to employees who report or refuse to engage in dangerous or illegal activities that violate OSHA standards. Such whistleblowers may file complaints with the Occupational Safety and Health Administration, and if the employer is found to have retaliated, the employee may be entitled to remedies including reinstatement, back pay, and compensation for any damages caused by the retaliation.

The Scope of Protection Under Section 11(c)

The protection afforded by Section 11(c) covers a wide range of activities that employees may engage in to safeguard workplace safety. This includes:

1. Filing a Complaint: Employees are protected when they file complaints with OSHA about unsafe or unhealthy working conditions.

2. Refusing to Work in Dangerous Conditions: If an employee reasonably believes that working conditions pose an imminent danger to their health or safety, they have the right to refuse to work, and this refusal cannot be used as a reason for retaliation.

3. Participating in Inspections or Investigations: Employees are protected when they cooperate with OSHA inspections, investigations, or hearings related to workplace safety.

4. Complaining About Employer Violations: If an employee informs the employer or other authorities about a violation of workplace safety rules, they are shielded from retaliation.

Retaliation and Enforcement

Retaliation against whistleblowers may take many forms, including demotion, suspension, salary reduction, termination, or creating a hostile work environment. It can also involve any action that adversely affects the employee’s work conditions or job security. OSHA is empowered to investigate allegations of retaliation and determine whether the actions taken by the employer were unlawful.

When an employee believes they have been retaliated against for engaging in protected activity under Section 11(c), they can file a complaint with OSHA. The complaint must generally be filed within 30 days of the alleged retaliation. Once a complaint is filed, OSHA will investigate the matter and determine whether there is sufficient evidence to support the claim. If retaliation is found, OSHA may order corrective actions, including reinstatement of the employee, back wages, and other compensatory damages.

However, enforcement of Section 11(c) can be complex. The burden of proof typically lies with the complainant, meaning that the whistleblower must provide evidence that the adverse action they experienced was directly related to their protected activity. Under the nexus requirement of a 11(c) claim is the but-for inquiry. Thus the question becomes was the whistleblower’s complaint a but-for reason for the subsequent adverse action he or she faced?  Some examples of but-for evidence included in the OSHA’s Desk Aid include close timing, between the protected activity and adverse action, evidence of hostility towards the protected complaint, and disparate treatment faced by the complainant when viewed in comparison to other employees. For more examples, see here.  If an employee is unable to prove this connection, his or her claim may be dismissed.

Conclusion

Section 11(c) of the Occupational Safety and Health Act plays a crucial role in ensuring that workers are able to exercise their rights without fear of retaliation. It encourages employees to speak up about unsafe working conditions, thereby helping to uphold the broader goals of the Occupational Safety and Health Act itself. By providing whistleblower protections, the provision helps maintain a balance between employer interests and employee rights, creating a safer work environment for all. For OSHA to be effective in reducing workplace hazards, it is essential that employees feel empowered to report violations and trust that they will not face retaliation for doing so.

Harjeen Zibari
Dallas Employment Trail Lawyer Harjeen Zibari

In today’s world of complex agreements and seemingly endless paperwork, we’ve all come across the phrase: “Consult an attorney.” It can be written in fine print at the bottom of documents. The phrase can be found in contracts, waivers, or other legal documents, almost like an afterthought. For many, this phrase feels like legal boilerplate or a mere formality, but it is not. Consulting an attorney is a crucial step for protecting yourself and understanding your rights and obligations.

Here’s why “consult an attorney” isn’t just a suggestion and why taking it seriously can save you from serious complications.

Complex Legal Language: It’s Not Just Jargon

Legal documents are notorious for their complex language and “legalese.” This isn’t accidental—legal terms often carry specific meanings that can differ from everyday usage. Without a legal background, it’s easy to misinterpret what you’re agreeing to. 

An attorney can clarify these terms, ensuring you know exactly what you’re signing. They’ll translate legal language into straightforward terms, so you can make informed decisions.

Understanding Your Rights and Obligations

When you sign a document, you’re bound to the terms outlined within it, and some agreements are stricter than others. In real estate, business partnerships, and yes, even employment contracts, the terms can significantly impact your future. When the document says to “consult an attorney,” it’s a signal that signing the agreement likely has consequences.

For example, employment contracts might include non-compete clauses that limit your career options after leaving a job. Employment severance and settlement agreements typically have language giving up rights to bring legal claims. Waivers that are compliant with the Older Workers Benefit Protection Act must advise you to consult with an attorney first. Consulting an attorney can help you understand your rights and ensure you’re not unknowingly giving up something valuable.

Avoiding Future Legal Battles

Many people skip the legal review to save time or money, but this can lead to costly disputes later. Failing to fully understand an agreement can result in unintended breaches of contract, which might lead to legal action.

Consider that employment agreement you might not have read carefully or didn’t fully understand. You could breach it by starting a competing business or hiring your friend from your old place of employment in violation of a non-solicitation clause. If you weren’t aware of these clauses or did not understand their implications because you didn’t consult an attorney, and you proceed with a restricted activity, a former employer may sue for breach of contract, leading to legal fees, damages, and a potentially ruined business relationship. Consulting an attorney from the start helps you spot these issues, allowing you to negotiate terms that work in your favor and avoid problems down the road.

Navigating Legal Consequences and Liabilities

Documents are often accompanied by specific legal consequences if the terms aren’t followed. Waivers, for example, may limit your right to sue in the event of an injury, while liability clauses could make you financially responsible for damages. While it’s possible to sign a waiver without an attorney, understanding its impact on your legal options is crucial.

If you’re signing something that includes language about waiving rights or assuming liability, an attorney can explain what it means for your future options. This way, you’re aware of the risks you’re taking on and can make an informed choice.

Understanding Alternative Options

An attorney can also offer alternative ways to proceed that may be less risky. For instance, if you’re unsure about a business partnership agreement, an attorney could suggest drafting a more limited agreement or creating terms that allow an easy exit. Attorneys often know about lesser-known solutions or strategies that can protect you more effectively.

Without an attorney’s advice, you might feel locked into specific terms that don’t work for you, simply because you’re unaware of other options.

Conclusion: When in Doubt, Reach Out!

The phrase “consult an attorney” may seem like a routine suggestion, but it’s a powerful reminder to take legal agreements seriously. An attorney’s guidance can protect your rights, help you avoid future disputes, and provide clarity and confidence as you move forward. The next time you see that fine print telling you to consult an attorney, take it as sound advice—it’s worth your time, effort, and peace of mind. Do you have a contract that you need help understanding prior to signing? Book a document review with me today!

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Did you know that Beaumont, TX was once home to one of the most important oil booms in U.S. history? It’s true! Growing up in Beaumont, a medium sized Southeast Texas town, field trips to the Spindletop site were pretty routine. Today you can still tour the Spindletop Boomtown Museum located on Lamar University’s campus in the southern part of Beaumont.

The oil and gas industry has undergone transformative changes since the discovery of oil at Spindletop in Beaumont in 1901. This landmark event not only marked the beginning of the Texas oil boom but also catalyzed the rise of petrochemical production. The vast quantities of crude oil extracted from Spindletop laid the groundwork for a burgeoning petrochemical sector, as the byproducts of refining oil became crucial for producing a wide array of chemicals and materials. This development helped fuel the industrial growth of the region and the nation, leading to advancements in everything from plastics to fertilizers.

As the petrochemical industry evolved, it became a vital component of the global economy, leveraging the raw materials derived from oil and gas to create essential products. In Beaumont and surrounding areas, facilities sprang up to process crude oil into petrochemicals, driving innovation and creating jobs. Today, the region continues to be a hub for petrochemical manufacturing, contributing significantly to the economic landscape of Texas and the broader U.S. economy. The legacy of Spindletop endures, as it not only symbolizes the birth of the oil industry but also highlights the intricate relationship between crude oil extraction and the diverse petrochemical products that support modern life.

The Golden Triangle (Beaumont, Port Arthur, Orange, TX) is also home to the world’s largest oil refinery. [1] Throughout the southeast Texas region, the petrochemical manufacturing industry in Jefferson County accounts for 46.7% GDP of the region according to the state comptroller’s site. In 2019 alone, the region boasted more than 34,000 jobs within the industry as well. Here, there are numerous petrochemical companies that are widely known such as Arkema, ExxonMobil, Goodyear, and Sunoco. All in all, the petrochemical industry has brought many jobs to the Southeast Texas region which has been great for the local economy.

However, turning shades to another aspect within the petrochemical industry is employment discrimination. As with any other industry, there has been a plethora of instances the U.S. Equal Employment Opportunity Commission (EEOC) has addressed several cases of employment discrimination within the petrochemical industry, revealing persistent issues related to race, gender, and disability.

In March of 2023, ExxonMobil Corporation was sued by the EEOC for failure to take effective measures to thwart harassment on the basis of race. Occurring at its Baton Rouge, Louisiana location, ExxonMobil was alleged to have failed to protect a Black employee who found a hangman’s noose at his worksite in 2020. Prior to this employee’s complaint, ExxonMobil was on notice of previous similar instances where three additional nooses were found at the baton Rogue plant. Furthermore, ExxonMobil is alleged to have only investigated a few but not all instances regarding the hanging of these nooses. Ultimately, the EEOC alleges that ExxonMobil failed to investigate all of the instances as well as failed to effectuate reasonable measurers to halt the racially motivated actions. For additional information regarding this lawsuit, see here.

 Another notable case involving employment discrimination and a petrochemical plant in Texas is where the EEOC field a lawsuit against Valero of claims of disability discrimination. Valero is alleged to have discriminated against an employee by discharging him for failure to take a reading test. Prior to the termination, Valero is alleged of failing to accommodate the same employee. For additional information on this lawsuit, see here.

These cases underscore the need for ongoing vigilance and proactive measures within the petrochemical industry to combat discrimination. They serve as a reminder that organizations must prioritize diversity and inclusion, ensuring equal opportunities for all employees, regardless of race, gender, or disability.

In a nutshell, employers must initiate a prompt and remedial measure following notification of racial discrimination and harassment in the workplace. An employer should also act on an employee’s request for accommodations then engage in the interactive process. Contact our office to discuss whether you may have a claims of employment discrimination in the workplace.

#EEOC #OilandGas #Discrimination

[1] https://comptroller.texas.gov/economy/economic-data/manufacturing/2020/southeast.php.