Colin Walsh
Texas Employer Lawyer Colin Walsh

In the intricate tapestry of legal frameworks, one concept that often surfaces is legal immunity. This term encompasses various protections granted to individuals or entities, shielding them from certain legal consequences. 

In employment law,  there are two main types of immunity that come into play: Sovereign Immunity and Qualified Immunity.  This blog provides a brief overview of both..

  1. 1. Sovereign Immunity:

Sovereign immunity traces its roots to the idea that the government is immune from lawsuits or legal action.  This immunity applies to both the federal government and state governments, as well as their agencies. This immunity shields government entities and officials from being personally liable for actions undertaken in their official capacity. Although this doctrine has ancient origins, its application varies across jurisdictions. 

However, sovereign immunity is not absolute. Exceptions exist, allowing legal action in certain circumstances. For instance, if a government entity engages in actions outside its official capacity or acts negligently, immunity may be waived, permitting legal proceedings.  IN. some situations, a state government waives sovereign immunity for certain causes of action simply by accepting federal funds.  The Rehabilitation Act is an example of this type of waiver.

In some cases, governments may consent to lawsuits or create specific procedures for citizens to seek redress.  Examples of laws where the government has consented to suit include Title VII of the Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code, as well as the Federal and Texas Tort Claims Act.  Those statutes also mandate specific procedures that must be followed in order to overcome sovereign immunity.  For example, under Title VII and Chapter 21, a plaintiff must first file a charge of discrimination with the Equal Employment Office of the Texas Workforce Commission, respectively to be able to bring suit under either statute against the federal or state government.

One final controversial note about state and federal sovereign immunity: it is not actually found anywhere in the Constitution.  The idea that a citizen of a state cannot sue that state’s government here in the United States was created by judges interpreting the 11th Amendment.  But take a look at the text of that amendment and you tell me whether that is what it actually say.

Anyway, on to qualified immunity! 

  1. 2. Qualified Immunity:

Qualified immunity is a legal doctrine primarily applied to shield government officials, such as law enforcement officers, from personal liability in the course of their duties. It grants protection unless the official’s conduct violates “clearly established” constitutional rights. Critics argue that this doctrine can shield officials from accountability, especially when there is ambiguity about whether a right was clearly established at the time of the alleged violation.  This can be a big problem.  Some courts take an extremely narrow view of what is clearly established law.  This has resulted in many officials being able to escape liability because the exact thing that official did had not happened before.  It can also lead to the bizarre outcome of a court finding that even though a government official violated the constitution or other law, they are not liable because no one had violated the constitution or law in that specific way before.  In other words, critics say, the government gets one free violation of the constitution and the law.

Debates surrounding qualified immunity often center on the balance between protecting officials from personal liability and ensuring accountability for potential misconduct. Advocates argue that it is essential for officials to perform their duties without the constant fear of litigation, while opponents assert that accountability is crucial to maintaining trust in public institutions.

These issues can be complex and confusing.  If you believe you have an employment case against a state government or the federal government, you should talk to an attorney about your options and what can be done.  The attorneys at Wiley Walsh, P.C> have experience with these issues and are happy to discuss potential options with you.  If you would like to set up a consultation, please contact us at 512-271-557 or you can book online at our website www.wileywalsh.com

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

As the holiday season approaches, many employees find themselves working extra hours to meet year-end deadlines or accommodate increased consumer activity. This is especially true in the retail and hospitality industries.

Various industries experience a significant increase in demand during the holiday season. For example, retailers see an uptick in customer traffic due to holiday shopping, and restaurants or hotels may encounter increased bookings for holiday events or as a consequence of holiday travel. These consumer demands often result in extended hours of operation, requiring employees to work longer hours to meet customer needs and fulfill orders.

While the reasons for working longer hours during the holidays can vary and may even be unexpected by the employer, employees must be paid for the work performed.

The prospect of holiday overtime brings into play the Fair Labor Standards Act, which governs various aspects of employment, including overtime pay.

The law does not require a special pay rate merely for working during or on holidays. Whether an employer chooses to offer additional pay for holiday work beyond what is required by the law is at the company’s discretion. Some employers may provide extra compensation or bonuses for working on holidays as an incentive or recognition of the inconvenience to employees.

Though there is no special premium rate for ordinary work during the holidays, the law governing overtime pay does not take vacation during the holiday season. Fifty-two weeks a year, non-exempt employees are entitled to receive overtime pay—typically set at one and a half times an employee’s regular hourly rate—for hours worked beyond the standard 40 hours per workweek.

A non-exempt employee is an individual covered by the wage and hour provisions of the FLSA. They are entitled to certain protections under the law, including those requiring a minimum wage and overtime pay. Exempt employees are typically salaried workers who meet specific criteria related to job duties and salary level, exempting them from overtime pay under the FLSA.

Non-exempt employees should be proactive in understanding their rights under the FLSA and advocating for fair and appropriate compensation. If an employer is violating overtime pay regulations, employees have the right to take legal action. If you are not receiving overtime pay for overtime hours worked, our attorneys are available for consultation.

With the hustle and bustle of the holiday season, it is easy for overtime pay to be overlooked or slip through the cracks. Employees should be mindful of the hours they work as their days get longer while meeting the demands of consumers during extended work hours. Employees should be careful when reviewing their pay stubs to ensure they are being paid in full for ALL hours worked; this includes pay at their premium overtime rate for hours worked over 40 in any given workweek. Don’t let your employer take advantage of the distractions caused by the busy holiday season.

As the holiday season unfolds and workplaces hum with heightened activity, it is essential for employees to understand the connection between holiday overtime pay and the FLSA. By staying informed about their rights and keeping a close eye on their hours worked and the compensation received, workers can enjoy the holiday season, knowing that they are being fully compensated for all the work they are performing to ensure their customers’ needs are being met.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

It’s that time of year again! As we roll into the holiday season, workplaces are gearing up for festive celebrations, including customary work holiday parties. These events are intended to foster camaraderie and team spirit. However, it is crucial to be reminded of the potential risks they pose, particularly concerning sexual assault and harassment.

Work holiday parties often provide a welcome break from the daily grind, offering employees an opportunity to relax, socialize, and celebrate the achievements of the year. It’s a festive atmosphere, and it should be enjoyed. However, the combination of festive spirits and relaxed environments can sometimes blur professional boundaries, leading to inappropriate behavior. Such behavior can put employees at risk of being preyed upon, leading to significant liability for employers.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination, including sexual harassment. Title VII applies not only during regular work hours but also extends to work-related events, including holiday parties. Employers are responsible for creating a workplace free from discrimination and harassment, and this duty extends to off-site and after-hours events.

In the past, small employers (with fewer than 15 employees) in Texas might have avoided liability for sexual harassment claims stemming from these holiday events. Yet, due to a much-needed change in the Texas Labor Code, as of 2021, smaller operations can no longer avoid the responsibility of creating a safe party atmosphere for their employees. Whether an employer in Texas has one employee or one thousand employees, Texas law protects all employees from unwelcomed sexual harassment.

Aside from protecting employees from sexual harassment, employers must take action aimed at protecting employees when that behavior crosses the line from harassment to sexual assault. Non-consensual sexual contact or intercourse is a criminal act that includes, but is not limited to, rape, attempted rape, unwanted touching, and other forms of sexual coercion. Criminal penalties may apply to the perpetrator, but civil penalties may still apply to the employer.

Employers should take measures to protect their employees at events during the holiday season. They should create and communicate clear policies regarding appropriate behavior at work events. They should not only implement reporting mechanisms to encourage employees to come forward if they experience or witness inappropriate behavior but should also respond appropriately and take swift remedial action when those reports are made. Employers should never blame or retaliate against the victim or a reporting witness.

Victims of sexual harassment or sexual assault in the workplace – including work-sponsored events – should never remain silent. Remaining silent about sexual harassment perpetuates a culture of secrecy and enables the continuation of harmful behavior. Speaking out is crucial, as it sends a powerful message that such behavior will not be tolerated. Moreover, reporting instances of sexual harassment helps create a safer working environment for everyone, putting others on notice of the dangers present and shining a spotlight on employers when they have failed to protect employees and fail to respond to complaints appropriately.

Our hope is that you have a safe and enjoyable holiday season. However, if you are or have been subjected to unwelcomed sexual harassment or assault and want to know your rights, our lawyers are available for consultation.

Have fun and enjoy this holiday season! Celebrate successes and the end of 2023 and the newness of 2024. Just remember: (1) mistletoe at office holiday events should only be viewed as festive décor and not an invitation, and (2) martinis should be consumed with caution.

Rachel Bethel
Texas Employer Lawyer Rachel Bethel

One category of discrimination that has yet to be federally protected in the U.S. has gained attention in recent years: caste discrimination. With the ever-increasing population of South Asians in the U.S., reports of discriminatory acts based on caste have risen considerably. 

Just this year, Seattle, WA and Fresno, CA—both cities with significant South Asian populations—became the first cities in American history to ban caste discrimination. While these are great strides in the right direction, the road ahead for larger jurisdictions will be long. 

Caste Discrimination Bill Vetoed in California

Just one month ago, Governor Newsom vetoed a bill, SB 403, that would have explicitly banned caste discrimination in California. California is home to nearly a million Indian Americans and hundreds of thousands of other South Asians as well. Notably, Governor Newsom commented that the specific addition was “unnecessary,” as California had already explicitly banned discrimination based on “sex, race, color, religion, ancestry, national origin, disability, gender identity, sexual orientation.” South Asian civil rights activists and lawmakers vehemently disagree. 

CA State Senator Aisha Wahab was responsible for putting forth SB 403. The purpose of the bill was to include “caste” within the definition of “ancestry” and further define “caste” itself. The bill would have provided much-needed clarity on what caste is and how it manifests into a basis for discrimination here in the U.S. Governor Newsom rejected an opportunity to elucidate and further protect an otherwise potentially nebulous class of people. 

Understanding Caste 

Caste, as defined by SB 403, is: 

An individual’s perceived position in a system of social stratification on the basis of inherited status. ‘A system of social stratification on the basis of inherited status’ may be characterized by factors that may include, but are not limited to, inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.

The caste system is one that dates back thousands of years in South Asia, chiefly in India. Although caste is typically associated with Hinduism, the culture of casteism has pervaded many other religions and cultures in South Asia. In a community or family that strictly, piously adheres to caste, the system can impact anything from whom one can marry, what jobs one can perform, what one can eat, and where one can look or walk, to which plates and cups one can use. India banned caste discrimination in 1948, but the system itself remains very much still in practice today.

The Road Ahead in the U.S.

While the introduction of caste discrimination bills is a step forward, it’s important to consider the complexities involved in addressing this issue. Many argue, for example, that determining caste identity can be difficult and that some individuals may misuse these protections. Perhaps it is true that others may not always know to which caste a person belongs. However, irrespective of whether an employee’s colleagues are all aware of the relevant castes at issue, so long as the parties involved are aware, at least the possibility for discrimination exists. 

There are approximately 5.4 million South Asians in the U.S. now. To the extent that someone has used caste as a basis for discrimination, an avenue for recourse should be available. This is a lived reality for many Americans, and it is essential to address just like any other form of discrimination. 

Conclusion

Caste discrimination bills propose to extend legal protections to individuals who face discrimination, including in education, employment, housing, and public services. The emergence of caste discrimination bills in the United States marks a legal path forward for those who have been and are being victimized in the workplace. 

By addressing this long-standing form of discrimination, American lawmakers join global efforts to combat caste discrimination. Here in Texas, home to hundreds of thousands of South Asian employees, it is only a matter of time before similar bills are drafted here. While the path ahead may be long, these recent bills are a significant step toward ensuring a more just society for all.

Shaleigha Shepard
Shaleigha Shepard Trial Attorney

As an employee in Houston, Texas, understanding your rights under the Family and Medical Leave Act (FMLA) is crucial. The FMLA is a federal law that provides eligible employees with job-protected leave for specific family and medical reasons. For workers facing health challenges or needing time to care for their loved ones, FMLA can be an essential support system. However, navigating its complexities requires insight and awareness.

In Houston, just like in the rest of the United States, eligible employees are entitled to up to 12 weeks of unpaid leave within a 12-month period under FMLA. This leave can be taken for various reasons, including:

  • The birth, adoption, or fostering of a child.
  • To care for an immediate family member (spouse, child, or parent) with a serious health condition.
  • To attend to the employee’s own health condition that makes them unable to perform their job.

It’s essential to note that the leave is unpaid, but employers may allow or employees may choose to use paid leave (like sick or vacation days) to cover some or all of the FMLA leave period.

To be eligible for FMLA in Houston, employees must have worked for their employer for at least 12 months, accumulated 1,250 hours of work in the preceding 12 months, and work for an employer with 50 or more employees within a 75-mile radius. Not meeting these criteria might exclude employees from FMLA coverage.

Employees seeking FMLA must give notice to their employer as soon as practicable. In cases of foreseeable leave, such as planned medical treatments or the expected birth of a child, employees should provide 30-day notice. In emergency situations, notice should be given as soon as possible.

Houston, being a part of Texas, also operates under state-specific employment laws, which may interact with federal laws like the FMLA. For instance, some employers might provide more generous benefits or offer FMLA coverage to employees not covered by the federal law. It’s crucial for Houston employees to understand both federal and state-level regulations to ensure they are fully informed about their rights.

Employers are obligated to maintain an employee’s health benefits during their FMLA leave and reinstate them to the same or an equivalent position upon return. Employers should not retaliate against employees for taking FMLA leave or interfere with their rights under the law.

Navigating the intricacies of FMLA in Houston, Texas, demands an understanding of both federal and state-specific laws. Employees must be aware of their rights, eligibility criteria, notification requirements, and potential benefits. Seeking legal counsel or guidance from HR professionals can significantly assist employees in comprehending and asserting their rights under the FMLA.

Remember, knowledge is power. Employees in Houston should familiarize themselves with these crucial details to ensure they can effectively utilize the provisions offered by the FMLA. Stay informed, know your rights, and seek assistance when needed to protect your interests in the workplace.

Know your rights when it comes to FMLA. If you’ve faced challenges or retaliation while exercising your FMLA rights, seeking guidance from an experienced employment attorney is crucial. Contact me in Houston or reach out to our skilled Texas employment lawyers in Austin or Dallas today for the support you need.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Sometimes I see random things and go down a rabbit hole. So, I decided to have a Tea Party, invite you along, and share my findings this time. I ran across a newspaper article about Piggly Wiggly, which lead me here. If you are from the south, then you know that Piggly Wiggly is a well-known supermarket chain founded by Clarence Saunders in 1916 in Memphis, Tennessee. I expect that the name Piggly Wiggly is familiar even beyond the south. Saunders introduced the concept of the modern grocery store with the first self-service grocery store model. The store was organized by departments, there was transparency with price marking, and customers could browse the store freely and pick their items from shelves rather than having a clerk fetch items for them. This innovation revolutionized the retail grocery business. 

Piggly Wiggly was very successful, paving the way for the supermarket model we see today, as other independent grocery stores and chains began to follow its model. The Dallas Morning News reports that by 1932, at its peak, Piggly Wiggly operated 2,660 stores. Over the years, Piggly Wiggly stores have evolved. Some are owned by individual franchisees, while others are part of larger corporate entities. Yet, it is not what it was in 1932. Now, despite being found in 18 states, Piggly Wiggly has significantly fewer locations, with approximately 500 stores. In Texas, there are two, one in Athens and the other in Paris.

Despite being a model for other retailers to follow, Piggly Wiggly has not always been a model to follow. The rabbit hole led me to 1987 when a class action racial discrimination suit was filed against Dixieland Food Stores, which encompassed 48 Piggly Wiggly stores in four states: Mississippi, Alabama, Georgia, and Florida. This lawsuit resulted in a settlement of $9 million and was a pivotal legal battle addressing allegations of racial bias in employment practices within these stores. The settlement was to represent back pay and damages to be paid to about 1,000 African American employees, including those “who are or have been employed by, or who have sought to be employed by D.L. Food Stores at any time from Aug. 7, 1981, through May 20, 1990[.]” (See L.A. Time Archives, Apr. 26, 1993, “Piggly Wiggly Grocery Store Chain Settles Four-State Racial Bias Suit for $9 Million.”)

In addition to financial compensation for the victims of Piggly Wiggly’s discriminatory practices, the settlement, which received approval from U.S. District Judge Harold Albritton of Montgomery, Alabama on March 20, 1992, mandated a significant restructuring of the company’s hiring practices. It included a stringent order requiring the company to ensure that 30% to 33% of its management positions were filled by African American individuals within the following five years. This was necessary when testimony revealed that African American employees were not provided the same advancement opportunities.  There was testimony that there was company policy that limited hiring opportunities for African Americans. A top management employee had been quoted making racially derogatory statements at management meetings such as: “(1) he would not hire another black until the government made him; (2) the store manager[s] should not hire blacks to handle money; and (3) the store manager[s] should not hire black cashiers because they steal. Mr. Neal also testified that Lee’s evaluation of the cause of inventory losses at the Marianna, Florida, store was that blacks were causing the white employees to steal.” (See Wynn v. Dixieland Food Stores, Inc., 125 F.R.D. 696 (M.D. Ala. 1989).

While the settlement’s financial compensation was substantial, the underlying emphasis on the imperative of diversity, inclusion, and fair employment practices resonated far beyond the monetary value. It marked a notable moment in the ongoing struggle for workplace equality, reminding corporations of the necessity to create environments that welcome and support individuals from all racial backgrounds.

What happened at these Piggly Wiggly stores in the 80s and before, is not unheard of today. Race discrimination in hiring, firing, and promotions, is a common and real occurrence.  If you or someone you know is facing race discrimination, we have employment attorneys available for consultation. 

Going down the rabbit hole can lead to interesting facts. This moment in history began with my reading an article predicting a comeback for the grocery retailer in the state of Texas. C&S Wholesale Grocers, the owner of the Piggly Wiggly brand, struck a deal to acquire more than 400 Kroger and Albertsons stores across the country. However, this acquisition is contingent upon the Federal Trade Commission’s approval of the pending $24.6 billion merger between Kroger and Albertsons. Of those 400 stores, 26 are reportedly in Texas. Will they be branded Piggly Wiggly? I don’t know. I really do not care. I am loyal to my current grocery chain, but it was fun looking at a little piece of history.

Colin Walsh
Texas Employer Lawyer Colin Walsh

My birthday is this week.  I turn 40.  That means I’m now in a protected class!  The older worker class.  So as I continue the slow walk up the stony steps towards the box, I thought I’d talk about the ADEA.

Age discrimination in the workplace is a pervasive issue that affects countless individuals across the United States. The Age Discrimination in Employment Act (ADEA) was enacted to combat this problem and ensure that individuals are judged based on their abilities and qualifications rather than their age. 

The ADEA was passed in 1967 and amended several times since to address the issue of age discrimination in employment. Its primary objective is to protect workers aged 40 and older from discriminatory practices in hiring, promotion, compensation, and termination. The ADEA applies to employers with 20 or more employees, employment agencies, labor organizations, and the federal government.

Key Provisions of the ADEA

  1. 1. Prohibition of Age Discrimination: The ADEA makes it illegal for employers to discriminate against employees or job applicants based on their age. This includes all aspects of employment, from hiring and firing decisions to promotions and compensation.
  2. 2. Equal Employment Opportunities: The ADEA mandates that employees aged 40 and older should be provided with the same employment opportunities as younger workers. They should not be excluded or disadvantaged based on their age.
  3. 3. Bona Fide Occupational Qualification (BFOQ): While the ADEA prohibits age discrimination, there are exceptions when age is a bona fide occupational qualification reasonably necessary for the normal operation of a particular business. For example, age limits can be imposed for certain safety-sensitive positions.
  4. 4. Retaliation Protection: The ADEA also safeguards employees who assert their rights under the act by prohibiting retaliation. This means that if an employee reports age discrimination or participates in a related investigation, they cannot be subject to adverse employment actions as a result.

Significance of the ADEA

  1. 1. Promoting Equal Opportunity: The ADEA plays a crucial role in promoting equal employment opportunities for older workers. It ensures that they are not unfairly marginalized in the workforce based solely on their age.
  2. 2. Fostering Diversity: Age diversity in the workplace is not only a matter of fairness but also contributes to a rich and diverse workforce. The experience and wisdom of older employees can bring unique perspectives and skills to the table, enhancing overall productivity and innovation.
  3. 3. Economic Security for Older Workers: As people are living longer and working well into their later years, the ADEA provides economic security by preventing age-based discrimination that could otherwise lead to unemployment or underemployment.

There are problems with the ADEA and its coverage is incomplete.  As mentioned above, it only covers employers with 20 or more employees.  Also, because it is only focused on older workers, young scamps might be discriminated against.  In some cases, younger workers may claim that policies intended to protect older employees actually discriminate against them. Further, while age discrimination is illegal, discrimination based on higher pay is not.  Older workers tend to be paid more than younger workers because they have more experience and are awesome.  One cynical defense that has gained traction is that these older workers were not fired for their age, but their pay.  The legal gymnastics that courts go through to say that age played no role in such a decision is disheartening.

In any event, the Age Discrimination in Employment Act is a critical piece of legislation that plays a pivotal role in protecting the rights of older workers. It fosters equal employment opportunities, promotes diversity, and ensures economic security for individuals aged 40 and older. However, it is essential to recognize the challenges and limitations of the ADEA and work towards continuous improvements to address the evolving nature of age discrimination in the modern job market. By upholding the principles of fairness, equity, and respect for the wisdom of experience, we can create a more inclusive and prosperous work environment for people of all ages.

Paige Melendez
Dallas Employment Lawyer Paige Melendez

When a company files for bankruptcy, the media plasters photos of their “going out of business” signs and empty storefronts to announce that the company could be no more. What is not shown is the complex, often long process of actually filing for bankruptcy. Filing for bankruptcy also comes in different flavors and different factors may help employees’ situations. To give a general idea of how bankruptcy affects employees, below we’ll look at the types of bankruptcy as well as examine the additional factors that may change the outcomes for employees. All in all, the announcement of bankruptcy can be terrifying for any employee that is currently employed by that company, but by learning more about the process it can help employees make more informed decisions. 

Beginning with types of bankruptcy, if a company files under Chapter 11, it means that the company may attempt to reorganize and continue operating under court supervision. In this case, the company may have to make difficult decisions such as reducing its workforce, closing unprofitable departments, or renegotiating contracts with suppliers and creditors. The company may also be able to negotiate with labor unions to reduce salaries or benefits temporarily. However, in some cases, employees may be able to keep their jobs or be rehired once the company emerges from bankruptcy. 

Another potential filing is under Chapter 7 or where a company is liquidated. Liquidation means that a business’ assets will be sold to pay off its creditors. In this case, employees will likely lose their jobs, and the bankruptcy trustee will use the proceeds from the asset sales to pay any outstanding wages and benefits owed to them. This situation is not ideal, but there’s still another option.

The third option entails a company being sold. In these cases, a bankrupt company may be sold to a new owner who will continue operating the business. In this scenario, the new owner may choose to retain some or all the existing employees or may offer them new contracts with different terms and conditions.

Moving on to specific factors that may come into play, the size of the company can make a difference. For larger companies, there may be more resources available for restructuring or finding a buyer, which could increase the chances of employees being able to keep their jobs or finding new employment opportunities. Conversely, smaller companies may not have as much leverage, and may be more likely to go out of business entirely.

The industry that the company operates in can also play a role. For example, if the company is in a declining industry or one that is particularly affected by economic downturns, it may be more difficult for employees to find new jobs quickly. On the other hand, if the company is in a growing industry with high demand for workers, affected employees may have more options.

Finally, the legal framework in the jurisdiction where the company is based can impact what happens to employees. For example, some countries have stronger labor protections that can make it more difficult for companies to lay off employees or reduce their benefits. Similarly, some countries may have more generous social safety nets that can help mitigate the impact of job loss.

Overall, when a company files for bankruptcy, it is a complex and difficult situation for employees, but employees do not have to go down with the ship. Instead, employees can consider resources available to help affected workers navigate this challenging time including unemployment benefits, job training programs, and setting up a time to speak with a Dallas Employment Lawyer. 

Paige Melendez
Dallas Employment Lawyer Paige Melendez

There are certain skills that as we go through life we must obtain. One of those of those skills is knowing when enough is enough and it’s time to walk away. And it is a skill to be able to recognize that and act on the recognition. This skill is especially relevant in any type of legal process. The reason why is that sometimes moving forward is not the best action you can take and that’s a big decision, but hopefully some of the considerations below will help to illustrate good ways to analyze the choices made as a client. 

We’ll start with an example of a situation where a big decision must be made: do you file a lawsuit?

That decision should be informed by a multitude of factors and most of them have nothing to do with the law. I know, the law not being one of the main contenders seems like an odd stance, but there are so many relevant human considerations that should be taken into account instead. To take care of this, let’s suppose that the question of filing a lawsuit has already been decided – there are grounds to file, the Firm agreed, and the only decision to be made is whether to go for it. 

As a client, certain things may be helpful to consider in this situation: family circumstances, time, financial ability, and emotional wellbeing. To begin with, family circumstances matter more than it may seem at first blush. The litigation process can take years and years to work your way through, this means time away from the family when you’re needed to give information for the case, be deposed, and even attend important meetings with your attorney. The time investment adds up especially since there are certain deadlines and work that must be completed by the client and by specific deadlines. The time away from family is just one of the facets of time to consider. The time that a client must put in to successfully litigate a case should not be underestimated. The specific deadlines matter for both your case and your attorney – the 9:00 P.M. phone calls that must be answered are nothing to overlook as well as early times for depositions where you must take off work. 

Missing work can have negative consequences for current employment, which brings us into financial ability. As I’m sure the media portrays, litigation is costly. Not only the startup costs, but the costs that manifest in other ways like the income that is missed by missing work. The financial portion is a huge part of litigation and as much as we would want litigation to be free, the costs can be higher than is realized upfront. This brings us to the last factor that can be considered: emotional wellbeing.

The emotional toll that litigation takes is vast. Not only do you have to repeat your story and possible trauma over and over again, but in depositions you may have to experience distress and discomfort defending it. The strength that is required to push through is taxing mentally and emotionally both to you, but also to the people around you. 

But all these factors are not to suggest litigation is not all uphill battles and hard work. Trials and having a case heard by the justice system is rewarding. Your case and voice being heard in an impactful way that will become a public record is a powerful acknowledgement of the harms that caused you to seek an attorney in the first place. The validation, even if the trial is lost, can make all the things above seem like a small price to pay. The passion is what can make litigation worth it, and we want to support that passion. However, as Dallas Employment Lawyers, we also want you to make the best decision for you because in the end that’s what really matters.

Paige Melendez
Dallas Employment Lawyer Paige Melendez

April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test. 

A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.

Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.

Another consideration when it comes to evaluating how drug testing functions in your workplace is to consider whether the testing is required by law or regulation. In some industries, such as transportation and healthcare, drug testing may be required by federal or state regulations. In these cases, the situation becomes tricky for employees because failure to drug test could be used as a reason for termination. This means that disclosing any or all over the counter and prescription medications that you may be taking becomes a necessity to avoid a false positive. In fact, some government agencies require drug testing as a prerequisite to employment.

Based on the above, it does not seem to leave a lot of options for employees to avoid drug testing though drug testing remains controversial. The controversy stems from the fact that drug testing is not always a reliable indicator of current drug use or impairment. Some drugs, like marijuana, can remain detectable in the body for days or weeks after use, even if the employee is no longer impaired. Additionally, drug tests may produce false positives, leading to unfair or incorrect conclusions about an employee’s drug use.

The landscape of drug testing in the workplace is not a new battlefield. The inaccuracies in tests, the potential to punish employees for off-work activity, and the potential for discrimination all support arguments against drug-testing. However, if there is a drug-testing policy it is important to be informed about how it works and what you may be required to do. That makes it easier to notice when an employer may be breaking the law, but a Dallas Employment Lawyer can help assess it, too. 

“Drug Testing in the Workplace” outlined by the Texas Workforce Commission: https://efte.twc.texas.gov/drug_testing_in_the_workplace.html

Substance Abuse and Mental Health Services Administration: https://www.samhsa.gov/

Department of Transportation Office of Drug & Alcohol Policy & Compliance: https://www.transportation.gov/odapc