Areyana Johnson
Austin/Houston Employment
Trial Lawyer Areyana Johnson

It is widely known that is unlawful to discriminate against someone with a disability. Having a disability is considered a protected classification under the Americans with Disabilities Act, as amended and the Texas Labor Code. This blog addresses whether and under what circumstances an employer may inquire about your disability during the pre and post onboarding employment process.

One of the core tenets of the ADA is to prevent discrimination against qualified individuals based on their disabilities, ensuring they have equal opportunities in the workplace. This means that employers are prohibited from inquiring about an applicant’s disability status during the hiring process, a restriction that promotes a fair assessment of a candidate’s abilities and qualifications without bias. The rationale behind this prohibition is to create a level playing field where an individual’s skills, experience, and potential can be evaluated independently of any disabilities they may have. When employers focus solely on an applicant’s abilities and qualifications rather than their disability status, it encourages a more diverse workforce and helps to dismantle preconceived notions about the capabilities of people with disabilities.

 By refraining from such inquiries, employers not only comply with the legal stipulations of the ADA but also foster an inclusive environment that values diversity and promotes a culture of respect and equality. Furthermore, asking about disability status can lead to unintended biases and stereotypes, potentially influencing hiring decisions in a negative way. The ADA recognizes that many individuals with disabilities are highly qualified and can contribute significantly to an organization, and this legislation serves to eliminate barriers that may inhibit their employment opportunities. From an employee’s perspective, it is essential to understand that the inquiry into an applicant’s disability status can lead to legal repercussions if it is determined that an employer-based discrimination occurred based on this information. In practical terms, employers should focus their questions during the hiring process on the candidate’s qualifications, skills, and experiences relevant to the job. For instance, an employer may ask about a candidate’s ability to perform specific tasks or to fulfill the essential functions of the job without referencing any disability.

This approach not only aligns with the ADA but also encourages a dialogue that is centered on the candidate’s professional competencies. It’s also important to note that while employers cannot ask about disability status, they are permitted to inquire if an applicant requires reasonable accommodations to perform their job effectively, but this is typically done after a job offer is made or when discussing specific tasks related to the position. This nuanced understanding allows for the necessary adjustments to be made without infringing upon the rights of the applicant. Employers should be aware of the concept of “disability disclosure,” which occurs when applicants voluntarily share their disability status. In such cases, it is crucial that employers handle this information sensitively and confidentially, ensuring that it does not influence hiring decisions inappropriately. Additionally, employers are encouraged to implement training programs to educate their staff about the ADA and the importance of inclusivity in the workplace. Such training can equip hiring managers with the tools they need to create a more equitable hiring process, emphasizing the importance of valuing candidates for their capabilities rather than their disabilities. By establishing clear policies that promote accessibility and support, employers can cultivate an environment that not only complies with legal standards but also enhances their organizational culture.

In conclusion, the ADA plays a vital role in protecting individuals with disabilities from discrimination in the hiring process. By prohibiting employers from asking applicants about their disability status, the ADA encourages a focus on qualifications and abilities, fostering a more inclusive and equitable workplace. Employers who embrace these principles not only comply with the law but also benefit from the diverse perspectives and talents that individuals with disabilities bring to the workforce. This commitment to inclusion can ultimately lead to a more dynamic, innovative, and successful organization, highlighting the importance of valuing every individual for their unique contributions. If you would like to know more about how our firm can assist you with your potential legal matter, please don’t hesitate to contact me.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Generally, an employer must take prompt remedial action upon its awareness of discrimination or harassment in the workplace. This general duty is applicable whether an employer has actual awareness or should be aware of the unlawful behavior taking place.

Sensibly, this means the employer should conduct an investigation to unearth what steps of actions should be instituted next. It is important to note that where employers fail to take prompt remedial action, employers can be held liable under several employment laws such as Title VII of the Civil Rights Act of 1964 and Texas Labor Code.

Employer instituted action within one month following receipt of unlawful harassment in the workplace is considered prompt. By way of illustration, the Texas Supreme Court previously answered on whether an employer acted promptly following a complaint of sexual harassment. In Fossil Group, Inc. v. Harris[1], here the issue was whether there was legally sufficient evidence that the employer failed to respond promptly to complaints regarding sexual harassment. While the evidence was uncertain on the timing of the employer’s receipt of harassment, it was undisputed the employer gained knowledge of the unlawful behavior.

Moreover, assuming the employer learned of the harassment on the earliest possible date, it acted promptly as a matter of law by discharging the harasser within one month.  “[C]omplainants often must ‘tolerate some delay’ for the employer to gauge the complaint’s credibility and the seriousness of the situation, especially when a complaint is sent through an anonymous reporting system.” Here, a month was not an unreasonable time under the circumstances considering that the plaintiff resigned within days of her first complaint, preventing a faster investigation and lessening the urgency of employer action.  Furthermore, there was no evidence of a need for “interim” action because the plaintiff was no longer an employee. The high Texas court rejected the plaintiff’s theory that the employer gained earlier “constructive” notice of the harassment. None of the individuals who knew of the harassment had the authority to address the problem or an affirmative duty to report the problem to management. This case showcases a recent and useful example of prompt action by an employer following notification of unlawful behavior in the workplace. Employers should not grow idle hands following notification of discriminatory or harassing behavior against its employees.

Now that we have a general idea of what prompt remedial actions looks like, what’s next from here? Typically following a complaint regarding unlawful behavior, an employer should investigate. Employers have a crucial obligation to address and rectify instances of unlawful harassment in the workplace promptly and effectively. Upon receiving notice of such harassment—whether through a formal complaint, observation, or any other means—the employer must act swiftly to investigate the allegations thoroughly. This duty encompasses several key responsibilities. Firstly, the employer must ensure that the investigation is impartial and conducted by individuals who are not biased or involved in the matter at hand. This process should include gathering evidence, interviewing relevant parties, and documenting findings comprehensively. Concurrently, the employer is required to take immediate steps to prevent further harassment, which may involve separating the complainant and the alleged harasser, adjusting work assignments, or providing interim measures to protect all parties involved. If the investigation substantiates the harassment claims, the employer must then implement appropriate corrective actions. These actions could range from disciplinary measures against the harasser to revising policies or providing additional training to staff. Furthermore, the employer should communicate clearly with the affected employees about the outcome of the investigation and the steps taken to address the issue. It’s vital that the employer demonstrates a commitment to creating a safe and respectful work environment by fostering a culture where harassment is not tolerated and where employees feel empowered to report such behavior without fear of retaliation. Failure to act promptly and decisively not only undermines the trust of the workforce but also exposes the organization to potential legal liabilities and reputational damage. 

In sum, an employer should provide prompt and effective response to unlawful conduct. Even where an employer has acted promptly, an employer should also ensure that its policies and practices are sound as to better assist in the facilitation of haste action from various outlets within the employer.

Kalandra Wheeler
Kalandra Wheeler is a Board Certified Houston/Austin employment lawyer.

Plaintiffs’ lawyers work tirelessly to protect employee rights, battling employers who often prioritize their own interests over those of their workers. Big business needs you in their workforce. Still, they know workers need employment, and the lure of the job is enticing when faced with the alternative: unemployment. American workers have bills to pay and families to provide for. So, in exchange for offering employment, many employers ask workers to unknowingly bargain away their rights.

It is increasingly common for employers to require employees to sign employment agreements. These agreements do nothing to guarantee the employee’s job, as they often include language that states, “nothing in this agreement changes the employee’s at-will employment status,” or something similar. This means the employee can still be fired for any reason, no reason at all, or even a fabricated reason—as long as it’s not an unlawful reason.

The real purpose behind these agreements is to protect employers. When something unfair or unlawful happens to an employee, employers want to make sure the business has limited its exposure or liability. They do this by stealing from their workers.

Employers steal opportunities through noncompete and non-solicitation agreements. Employers steal the justice system through arbitration agreements that remove judges and juries from the legal process. Employers also steal time with clauses that reduce the period in which employees can bring claims against an employer for its violations of the law.

Unfortunately, many employees sign employment agreements without fully understanding the terms; the majority aren’t lawyers. However, you can bet that most companies had lawyers draft these agreements. Other employees may not even realize they’ve signed these various agreements, the employer having buried them in a mountain of onboarding paperwork and training materials. Sadly, this means many employees may not discover the great heist until it is too late.

Any belief underlying a claim that all employees signing these agreements have a choice, or that all employees have bargaining power when entering into these contracts, is misplaced. In reality, most are fundamentally unconscionable, with employers holding significant power over prospective employees who are desperate for work. Despite this imbalance, courts often uphold these agreements.

There is constant effort by plaintiffs’ attorneys, organizations and agencies designed to protect employee rights, and employee-friendly politicians and leaders to protect the rights of American workers. Despite these efforts, the struggle persists, as big business and the wrong lawmakers continuously place so little value on these rights.

In 2022, the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA) amended the Federal Arbitration Act (FAA), granting sexual assault and harassment victims the right to pursue their claims in court, even if they had signed predispute arbitration agreements. However, the fight against arbitration agreements in other areas of employment law continues.

Arbitration agreements are particularly problematic. Arbitrators make their money from the employers who require employees to sign these agreements. When a dispute arises, it is the employer who pays for the arbitration process, including the arbitrator. If this were happening in a court of law, and a party to a dispute paid a judge, it would be considered bribery. Yet, this conflict of interest remains hidden behind the idea that employees “consented” to arbitration, even though the alternative was quite possibly unemployment.

In April 2024, the Federal Trade Commission (FTC) issued a rule to prohibit employers from entering into new noncompete agreements and from enforcing existing noncompetes. The FTC argued that noncompetes restrict workers’ freedom, suppress wages, and often force employees to relocate or leave professions they enjoy.

Of the FTC rule that was set to go into effect in September 2024, FTC Chair Lina M. Khan stated, “The FTC’s final rule to ban noncompetes will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to market.” However, companies have sued to block the implementation of this rule, leaving the decision in the hands of the courts.

Some states have already protected employees by banning noncompetes, including California, Minnesota, North Dakota, and Oklahoma. In these states, employees enjoy greater protections than under federal law. Employers must compete for valuable workers, pay them what they are worth, and foster opportunities for economic growth.

Where noncompetes are still allowed, plaintiffs’ attorneys continue to fight these restrictive agreements.

Likewise, some employers attempt to reduce the statute of limitations for filing claims. Where the law, as written, may provide an employee with a 300-day, 180-day, or 2-year statute of limitations, employees may unknowingly sign away these deadlines. Consequently, if an employee doesn’t realize they’ve signed an agreement with serious time limitations, they may find they’ve gone to the courthouse too late. Disturbingly, some courts have found these shortened timeframes acceptable, further disadvantaging employees.

New York City took action to protect workers by updating its Administrative Code. This change ensures that any employment agreement provisions attempting to shorten the statutory period for filing claims under the NYC Human Rights Law are unenforceable and void. The city’s amendments demonstrate the positive impact that lawmakers can have on protecting workers and upholding justice.

There are many ways that employers steal rights from employees. Unfortunately, as more employers implement restrictive agreements, employees have fewer job options for avoiding them. When courts and employers fail to protect workers, it falls to lawmakers to step in. Federal, state, and local officials hold the power to prevent injustice and ensure employees retain their rights.

Every lost protection for American workers is another reason to vote. Until stronger legal protections are in place, employees must remain vigilant. If you have signed an employment agreement and need to understand your rights, our attorneys are available for consultation and here to help you navigate the complexities of these contracts.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

This blog dives into general concepts of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

USERRA is creature of federal law which provides protection to employees in the military.  In general, USERRA provides a guaranteed place of employment upon returning from military leave, which includes service or training. By place of employment, USERRA specifically guarantees the right to be reemployed at an employee’s job with the same or nearly comparable position accompanied with the same benefits.

USERRA applies to employers of all sizes including the federal government. In order to be eligible for reemployment, an individual must satisfy certain requirements. As defined in the statute, rights of reemployment extend to individuals who have been absent from work due to “service in the uniformed services”.[i] Service in the uniformed services is broadly defined as performance of duty on a voluntary or involuntary basis in a uniformed service. [ii]Examples include active duty, active duty for training, initial active duty for training, inactive duty for training, full time National Guard duty, and absence from work for an examination used to assess an individual’s duty for fitness.[iii] This is not an exhaustive list, for more qualifying acts of service, see here.

Moreover, uniformed services consist of the Army, Marine Corps, Navy, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve and Coast Guard Reserve, Army National Guard and Air National Guard, Commissioned Corps of the Public Health Service, or any group of individuals authorized by the President in a time of war or emergency.[iv]

USERRA’s reemployment rights are only applicable where an individual ‘s cumulative absence from work does not exceed five years. Upon returning back to work, a service member must return within a specified time frame. This time frame is based on the length of service. By way of example, a service member whose military service took place for 1 to 30 days must report back to work on the first regularly scheduled work date that is one day after the completion of service. However, this temporal requirement has accompanying limitations. The service member must be permitted travel time for a safe return back to work following military service and an 8-hour rest period. Where a service member finds an impediment such as impossibility or unreasonableness to return to work on the date given, the service member must report to work as soon as possible. This flexibility is only permitted when faced with an obstacle as described in the preceding sentence and through no fault of the service member. For additional time frames for reporting back to work following duty, see here.

The type of reemployment position is also dependent upon the length of service absent a disability incurred or aggravated by service. For example, an individual whose service lasted from 1 to 90 days, must be promptly reemployed in first a job the individual would have held barring reporting for duty.[v] The individual must be deemed qualified for the position or can become qualified following the employer’s reasonable efforts.[vi] Where unavailable, the individual must be promptly reemployed in a position which the individual was employed on the date of the start of service in the uniformed services.[vii] However, this is only where the individual is unqualified to perform the duties of the position the individual would have been returned to absent reporting to service and reasonable efforts by the employer. [viii] This hierarchy is premised upon the escalator position principle. Under this principle, it is required that every returning service member is reemployed into the position the service member would have been in with reasonable certainty if employment was continuous and with full seniority.

In sum the main takeaways from this blog are two-fold: military members have rights to reemployment following reporting for duty and their reemployment position is based upon their length of reported service. It is on the employer to ultimately provide benefits, including pay, to employees on a leave of absence. USERRA requires that employers offer the most favorable treatment accorded to any comparable form of leave when an employee performs service in the uniformed services.

Paige Melendez
Houston Employment Trial Lawyer Paige Melendez

Service animals are an essential component of the lives of many individuals with disabilities, providing significant assistance that enables them to navigate daily activities with greater independence and safety. Under various legal frameworks, including the Americans with Disabilities Act (ADA) in the United States, service animals are recognized as a reasonable accommodation, ensuring that individuals with disabilities have equal access to public spaces and services.

Definition and Role of Service Animals

Service animals are typically dogs that are individually trained to perform tasks or do work for people with disabilities. These tasks can vary widely depending on the specific needs of the individual. For example, service animals can assist individuals with visual impairments by acting as guide dogs, or they can alert individuals with hearing impairments to important sounds. Service animals can also be trained to detect and respond to medical conditions such as seizures or diabetic episodes, providing vital assistance that can be lifesaving. Moreover, they can aid individuals with mobility impairments by retrieving objects, opening doors, or providing stability for walking.

The ADA defines a service animal as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The work or tasks performed by the service animal must be directly related to the individual’s disability. It is important to note that there is a differentiation between a service animal and an emotional support animal, which is not addressed here.

Legal Framework and Protections

The ADA mandates that service animals must be allowed to accompany people with disabilities in all areas where members of the public are permitted to go. This includes restaurants, hotels, retail stores, hospitals, and public transportation, among other places. The presence of a service animal is considered a reasonable accommodation, and businesses or entities cannot impose additional charges or requirements on individuals with service animals.

Furthermore, the ADA stipulates that businesses may only ask two specific questions when it is not obvious what service an animal provides: 

  1. (1) Is the dog a service animal required because of a disability? 

(2) What work or task has the dog been trained to perform? 

These questions are designed to ensure that the individual’s privacy is respected while verifying the legitimacy of the service animal.

In workplaces, service animals can also be a critical part of reasonable accommodations, enabling employees with disabilities to perform their job functions more effectively. Employers are required under the ADA to provide reasonable accommodations unless doing so would cause undue hardship for the business. If an individual requires this type of accommodation, the interactive process begins by an employee identifying their need for a reasonable accommodation to the appropriate person in their workplace. After requesting the reasonable accommodation, the interactive process should aid both the employer and employee into coming to a reasonable accommodation.

In conclusion, service animals are a vital accommodation for individuals with disabilities, facilitating independence and access to public life. Legal frameworks like the ADA provide essential protections, ensuring that these animals can accompany their handlers in various settings without undue barriers. If you believe that you are an individual that has been discriminated against because of your need for a reasonable accommodation like a service animal, then please call Wiley Wheeler, P.C. to discuss your potential case.

Harjeen Zibari
Dallas Employment Trial Lawyer Harjeen Zibari

A great deal of our practice involves interfacing with federal agencies, but they’re not all the same. The National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), and the Department of Labor (DOL) are three distinct federal agencies in the United States, each with different responsibilities related to labor and employment.

National Labor Relations Board (NLRB) The NLRB primarily oversees the enforcement of labor laws related to collective bargaining and unfair labor practices.It protects the rights of employees to organize, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection.

The NLRBinvestigates and remedies unfair labor practices, conducts elections to determine union representation, and enforces orders related to labor disputes.

It operates under and is concerned with the National Labor Relations Act (NLRA) of 1935.

Typical Cases includeunion organizing efforts, employer retaliation against union activities, and collective bargaining disputes.

Equal Employment Opportunity Commission (EEOC)

The EEOC enforces federal laws prohibiting employment discrimination. It was created to ensure that employees and job applicants are not discriminated against based on race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability, or genetic information.

The EEOC investigates discrimination complaints, mediates and settles discrimination claims, and files lawsuits in a select handful of cases every year.

The main legislation the EEOC deals with is Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act of 1963.

Typical cases include workplace harassment, discrimination in hiring, firing, promotions, or compensation, as well as retaliation for filing a discrimination complaint or otherwise engaging in protected activity under a relevant statute.

Department of Labor (DOL)

The DOL oversees a broad range of labor and employment issues, including workplace safety, whistleblower protection, wage standards, and federally-protected leave under the FMLA.

The DOL enforces federal labor standards laws, administers unemployment insurance and workers’ compensation programs, regulates wage and hour standards through the Wage and Hour Division (WHD), and investigates violations under the FMLA.

The main legislation the DOL deals with is the Fair Labor Standards Act (FLSA) of 1938, the Occupational Safety and Health Act (OSH Act) of 1970, and the Family and Medical Leave Act (FMLA) of 1993.

Typical Cases include minimum wage and overtime pay disputes, certain whistleblower claims, workplace safety violations, and family and medical leave entitlements.

In summary, the NLRB deals with collective bargaining and unfair labor practices, The EEOC focuses on addressing employment discrimination, and The DOL handles a variety of labor issues including wage standards, workplace safety, and unemployment benefits.

These are all distinct areas of the law and can be confusing to navigate. If you’d like some help with a labor or employment dispute, If you have have been discriminated against for your sexual orientation or gender identity, contact me in Dallas or one of our other talented Texas employment lawyers in Austin or Houston today.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

The Americans with Disabilities Act (ADA), first enacted in 1990, represents a landmark in civil rights legislation, aimed at prohibiting discrimination against individuals with disabilities in various areas of public life, including employment, public accommodations, transportation, and telecommunications. Its overarching goal is to ensure that people with disabilities have the same rights and opportunities as everyone else. This commitment was significantly reinforced through the ADA Amendments Act (ADAAA) of 2008, which expanded the scope and impact of the original legislation by broadening the definition of disability and making it easier for individuals to prove that they have a disability under the law.

The ADAAA was a response to a series of Supreme Court decisions that had narrowed the definition of “disability,” thereby limiting the protections available to many individuals. One critical area where the ADAAA made substantial improvements was in the definition of “major life activities,” which now includes a more comprehensive list of activities, such as reading, concentrating, and working, thus recognizing a broader range of impairments. Additionally, the ADAAA emphasized that the determination of whether an individual has a disability should not be based on whether the impairment is severe, but rather on whether it significantly limits one or more major life activities. This shift was crucial in expanding protections and ensuring that individuals who may not have severe disabilities but still face significant challenges are covered under the ADA.

Disability Discrimination by Association

In conjunction with these changes, the ADAAA also enhanced protections for individuals who are discriminated against based on their association with someone who has a disability, a concept known as “disability discrimination by association.” This provision acknowledges that discrimination can occur not only directly against individuals with disabilities but also against those who are linked to them, such as family members, caregivers, or friends. By wat of example, an employer might refuse to hire a qualified candidate because they have a family member with a disability, under the incorrect assumption that this association could result in higher insurance costs or absenteeism.

Another example is where an employer may fail to permit an employee who has children with disabilities to work remotely while allowing other similar employees to work remotely. The ADAAA’s inclusion of protections against discrimination by association serves to address these unjust biases and ensures that individuals are not penalized or discriminated against based on their relationship to someone with a disability. This facet of the ADA is important for promoting a more inclusive society, as it recognizes that the impact of disability extends beyond the individual and affects families and communities as a whole.

The principle of non-discrimination by association aligns with the broader objectives of the ADA and reflects an understanding that disabilities affect not just individuals but also their social circles. For example, if a parent is caring for a child with a disability, the parent should not face discrimination in employment or other areas simply because of their caregiving responsibilities. By extending protections to those associated with people with disabilities, the ADAAA helps to prevent indirect discrimination and ensures that all individuals are treated fairly and equitably, regardless of their familial or caregiving status. This extension of protections is particularly significant in the context of workplace policies and practices, where there can be a tendency to make assumptions or generalizations about the impact of disability on employees or their families.

Ultimately, the ADA and its amendments represent a dynamic and evolving effort to create a more just and equitable society. By addressing both direct and indirect forms of discrimination, the ADAAA builds on the foundational principles of the original ADA and continues to advance the rights and opportunities of individuals with disabilities. The ongoing commitment to interpreting and enforcing these protections in ways that reflect the lived experiences of people with disabilities and their families underscores the importance of vigilance and advocacy in the quest for full inclusion and equal treatment. As society progresses, the principles embodied in the ADA and the ADAAA will remain crucial in shaping a world where everyone, regardless of disability or association, can participate fully and equally in all aspects of life. For additional guidance on disability discrimination by association under the ADA, please click here.

#ADA #Disability #EmploymentDiscrimination

See more blogs from Areyana here.

Rachel Bethel
Austin/Houston Employment Trial Lawyer Rachel Bethel

Employees with disabilities face many potential obstacles in the workplace. Having invisible disabilities adds another layer of unique challenges.

Invisible disabilities are conditions that are not immediately apparent to others, such as chronic pain, mental health conditions, or autoimmune disorders. For those with invisible disabilities, your supervisors and colleagues may have no idea that you even have a condition or may need accommodations.

In Texas, employees with invisible disabilities should be aware of their rights and take steps to protect themselves. This blog outlines essential strategies for employees with invisible disabilities to safeguard their rights and well-being at work.

Understanding Invisible Disabilities

Invisible disabilities encompass a wide range of conditions that are unlikely to be obvious to others but can significantly impact an individual’s daily life.

Examples may include:

– Chronic illnesses (e.g., fibromyalgia, Crohn’s disease, ulcerative colitis)

– Neurological conditions (e.g., epilepsy, multiple sclerosis)

– Learning disabilities (e.g., dyslexia, ADHD)

– Mental health conditions (e.g., depression, anxiety, PTSD)

– Psychiatric conditions (e.g., bipolar disorder)

Know Your Rights Under the Law

Employees with invisible disabilities in Texas are protected under federal and state laws. Key protections include:

·      Americans with Disabilities Act as Amended (ADAAA): The ADAAA prohibits discrimination against individuals with disabilities and requires employers to provide reasonable accommodations to qualified employees. Note that the ADAAA’s protections do not apply to every employer or to every request for reasonable accommodations. Contact a Texas employment lawyer to learn more.  

·      Texas Labor Code: This state law mirrors the ADAAA’s protections, generally prohibiting disability discrimination and requiring reasonable accommodations.

Disclosing Your Disability

Unlike with more obvious disabilities, for those suffering with invisible disabilities, disclosure of at least some information will be necessary in order to assert your protected rights. Disclosure is key to ensuring that you are accommodated. Consider the following factors before disclosing:

·      Necessity for Accommodations: If you need reasonable accommodations to perform your job effectively, you will need to disclose your disability to your employer.

·      Privacy: Importantly, sharing all the specific details of your conditions with your teammates and supervisors is not necessary. Start by contacting someone at human resources and letting them know that you need to apply for a reasonable accommodation. Share the information necessary to support your accommodation request. Then, work with human resources to identify what, if any, supporting documentation you need to provide from your medical provider.

Requesting Reasonable Accommodations

Reasonable accommodations are adjustments or modifications that enable employees with disabilities to perform their job duties. Examples include flexible work schedules, remote work options, ergonomic workstations, and modified duties. To request accommodations:

·      With your medical provider, determine what potential accommodations will help you perform your job effectively.

·      Communicate your request to your employer and provide them with relevant medical documentation if necessary.

·      Work collaboratively with your employer to identify and implement suitable accommodations. If the employer requests, discuss alternative accommodations as well.

Protecting Yourself from Discrimination

Despite legal protections, discrimination can occur. Some tips for protecting yourself include:

Documenting Everything: Keep records of all communications with your employer regarding your disability and accommodations. Also ensure that you have or obtain medical records to support your invisible disability diagnosis in the event you need to request an accommodation.

Reporting Discrimination: If you experience discrimination, do write in a report of discrimination to your employer. Also feel free to contact one of our employment lawyers to obtain guidance on next steps.

Conclusion

Employees with disabilities, visible or not, have rights to federal and state protections. By understanding your rights, you will feel more empowered to assert your rights and obtain support in the workplace. Remember—you are not alone. Resources are available to help you navigate these employment concerns and thrive in your career.

Areyana Johnson
Austin/Houston Employment Trial Lawyer Areyana Johnson

Amended Sexual Harassment Laws in Texas

Prior to 2021, sexual harassment claims against employers in Texas were quite limited. Newly enacted laws in 2021 expanded protections for employees asserting sexual harassment claims. Almost all employers may now face liability for these types of claims, including employers with only one employee. Specifically, under the 2021Texas Commission on Human Rights Act (TCHRA) amendments, an “employer” is “a person who employs one or more employees or acts directly in the interests of an employer in relation to an employee.” Section 21.141 Texas Labor Code.

Acts of Sexual Harassment as Defined in TCHRA

Sexual harassment can take form in many ways. Generally, sexual harassment is unwelcome behavior rooted in a sexual nature. As defined in Section 21.141(2), this unwanted behavior is a sexual advance or request for a sexual favor, or other acts whether verbal or physical of sexual nature which affect the terms, conditions, or privileges of an employee’s employment. Whether explicitly or implicitly, sexual harassment can be found in numerous forms. This is true even where an employee has submitted to or rejected the sexual advance, request, or favor.

Staffing Agency Liability

Well, what does this mean for staffing agencies and how does liability attach? The inquiry to assess staffing agency liability for sexual harassment claims is whether the staffing agency is an employer for TCHRA purposes. The answer lies within chapters 21 and 91 of the Texas Labor Code. A staffing agency may qualify as a professional employment organization (PEO).  As a PEO, a staffing agency can also qualify as a co-employer where the staffing agency is a “party to a co-employment relationship.” Section 91.001(3-a) Texas Labor Code.

There is a recent state court case which casts light on the distinction. In Harbor America Central, Inc. v. Armand, the court held that a “professional employer organization” (PEO), can be an “employer” appropriately named in an action under the TCHRA (which is Chapter 21 specifically of the Texas Labor Code). Harbor America Central, Inc. v. Armand, ___ S.W.3d ___, 2024 WL 1289596 (Tex. App.—San Antonio March 27, 2024). However, the inquiry does not end here.  To be liable as an employer under Chapter 21, the staffing agency/PEO must still satisfy the definition of an employer under Chapter 21 and be an employer of the claimant. In this case, there was no dispute that the PEO qualified as an employer under Chapter 21 because it was engaged in commerce and had more than 15 employees.

However, to be an employer liable to a claimant under Chapter 21 the employer must have an employment relationship with the claimant. In this sexual harassment case, the defendant staffing service’s contract with the client employer included multiple provisions suggesting the staffing service was a joint employer of the claimant-employee. This is where the joint employment liability theory lies present.

However, the court of appeals found that the district court erred in finding as a matter of law that the staffing service was the claimant’s employer. There were issues of fact regarding the staffing service’s control over the claimant and the economic realities of their relationship. As a result, the court of appeals remanded the case for additional proceedings.

In sum, staffing agencies may be held liable for sexual harassment claims. In order to be held liable, a claimant must prove that the staffing agency is considered an employer for purposes of the Texas Labor Code. The 2021 amendments to Chapter 21 of the Texas Labor Code, TCHRA, affords greater protections for employees. In the years to come, it’ll be interesting to see what other avenues of recourse employees may have against a non-traditional employer. While the 2021 amendments were a great step in the right direction, Texas laws are still generally employer friendly.

Was your employer made aware of your sexual harassment claim?  An employer is liable for sexual harassment if it knows or should have known about the harassment and failed to act. Employers must take immediate and appropriate corrective action. Don’t hesitate to book a consultation with our firm to discuss your potential employment law claim.

Areyana N. Johnson is a Trial Attorney located in our Houston office of Wiley Wheeler, P.C. Additional employment law blogs from Ms. Johnson can be accessed here.

Cameron Hansen
Austin/Houston Employment Trial Lawyer Cameron Hansen

The recent decision by Judge Ada Brown of the U.S. District Court for the Northern District of Texas in Ryan, LLC v. Federal Trade Commission, No. 3:24-CV-00986-E (N.D. Tex. 2024), has significant implications for employees, particularly those bound by non-compete agreements. As a plaintiff’s employment attorney in Texas, I often see the unfair, predatory and restrictive effect of these agreements on employees’ ability to work freely and earn a fair wage. This decision is a major setback in the FTC’s attempt to fix this problem for American workers.

Background of the Case

The central issue in Ryan, LLC v. Federal Trade Commission revolves around the FTC’s newly introduced “Non-Compete Rule,” encapsulated in 16 C.F.R. § 910.1-.6. This rule aims to make most non-compete agreements unenforceable, allowing employees to work where, when and how they choose. The plaintiffs, comprising Ryan, LLC and several business organizations including the Chamber of Commerce of the United States of America and the Texas Association of Business, challenged the FTC’s authority to enforce this rule. Judge Brown, who was appointed to her position by President Trump in 2019, found that the Rule is likely unlawful and should be halted pending further evaluation.

Key Points of the Court’s Decision

1. Judge Finds that FTC Lacks Substantive Rulemaking Authority:

            Judge Brown’s decision primarily hinges on the interpretation of the Federal Trade Commission Act (FTC Act). She found that the FTC lacks the substantive rulemaking authority under Section 6(g) of the FTC Act to regulate unfair methods of competition through this Non-Compete Rule, despite the Statute explicitly providing the FTC the power to “make rules and regulations for the purpose of carrying out the provisions of this subchapter.”. 15 U.S.C. § 46(g). Judge Brown held that this language in the FTC Act only empowers the FTC to prevent unfair methods of competition through case-by-case adjudication, not rulemaking.

2. Judge Finds the FTC’s Decision to Make the Ban was Arbitrary and Capricious:

            Although the FTC has been studying non-compete agreements and the potential effects of banning them since 2018, Judge Brown also found that the FTC’s decision to ban non-compete agreements was an arbitrary or capricious decision – essentially, that there was no good reasoning to ban non-compete agreements in this way. The FTC held public hearings, workshops, and reviewed both academic studies and public comments on non-compete agreements for approximately 5 years before proposing its first draft of the non-compete ban. Judge Brown, however, found these efforts were not enough to make a reasoned decision on whether or not to ban non-compete agreements because “it is unreasonably overbroad without a reasonable explanation.” Specifically, Judge Brown found the FTC’s studies of States’ non-compete regulations to be “completely inapposite” to the FTC’s ban, because the States’ regulations were not as broad and were based on “specifical factual situation(s).”

3. Impact on Employees:

The preliminary injunction granted by the court postpones the effective date of the FTC’s Non-Compete Rule as applied to the plaintiffs. For now, Judge Brown’s decision means non-competition agreements are not banned by the FTC Rule. This decision leaves employees in a state of uncertainty, as the enforceability of their non-compete agreements remains in limbo.

The Unfairness of Non-Compete Agreements for Employees

Non-compete agreements have long been criticized for their restrictive nature and the unfair burden they place on employees. These agreements often limit workers’ ability to seek better job opportunities, negotiate higher wages, and fully utilize their skills and expertise. In Texas, while non-compete agreements must be reasonable in scope, duration, and geographic reach, they still pose significant challenges for many employees.

For instance, an employee bound by a non-compete agreement might find it difficult to switch jobs within the same industry, even if their new role does not directly compete with their former employer. This restriction can stifle career growth and perpetuate wage stagnation, particularly for mid-level and entry-level employees who lack the bargaining power to negotiate more favorable terms.

Implications for Employees

Employees should be aware that while Judge Brown’s decision halts the immediate implementation of the FTC’s rule, it does not resolve the broader debate over the enforceability of non-compete agreements. The court’s decision leaves many employees in a state of uncertainty. Those who were hopeful that the FTC’s rule would provide them with newfound job mobility must now wait for further legal developments. In the meantime, employees should document any potential abuses of non-compete agreements by their employers and be prepared to challenge overly restrictive covenants.

Looking Ahead

The court has indicated that it intends to rule on the ultimate merits of the case by August 30, 2024. This forthcoming decision will likely provide further clarity on the FTC’s authority and the future of non-compete agreements. Employees should stay informed about developments in this case and be prepared for potential changes.

Conclusion

The Ryan, LLC v. Federal Trade Commission decision represents a significant moment in the ongoing debate over non-compete agreements and the FTC’s regulatory authority. While the court’s decision offers a temporary pause, the broader implications for non-compete agreements and employment law will continue to unfold in the coming months.

In the meantime, employees should continue to operate within the existing state laws governing non-compete agreements, ensuring that their rights are protected and that they are not unfairly restricted from pursuing new employment opportunities. This case highlights the dynamic nature of employment law and the need for vigilance and adaptability in navigating its complexities.

If you would like to speak with an attorney regarding your non-compete agreement, please reach out to Rob Wiley, P.C. at (512) 271-5527 or https://www.wileylawyers.com/.