As you may hear over and over again, Texas is an at-will employment state.  What that means is that there are limited protections for employees in the workplace.  At-will employment means that employers can change the terms and conditions of a person’s employment, discipline an employee, or even terminate an employee for any reason or no reason at all.  The actions of the employer may be unfair, they may be unreasonable, they may even be based off false allegations, but that does not mean that an employer’s actions are unlawful.  

For an employer’s actions to be unlawful, the employer’s actions must be based on unlawful motivations.  Unlawful motivations would be things like race, color, national origin, religion, sex, age, or disability. These are just a few examples of the unlawful motivations an employer may have.  

Continue Reading I complained of discrimination. My employer retaliated. Am I protected?

As a precursor to filing a lawsuit under the laws that the EEOC enforces such as Title VII, the Americans with Disabilities Act, and the Age Discrimination in Employment Act,  employees must first file a charge of discrimination with the EEOC. As it stands now, the vast majority of these charges are dismissed by the EEOC. But not because these charges lack merit. The dismissal is often necessitated by a lack of resources and investigators. Often times this leaves the EEOC unable to conduct a proper investigation into the thousands of charges that are filed each year with the federal agency.

At this moment, the EEOC is on the precipice of making two major changes to the process of how the federal agency is going to handle the dismissal of charges of discrimination. These changes will include a change in the procedures in which the dismissals are processed, and they will include a change in the dismissal language contained in the right to sue letters that the EEOC issues upon the dismissal of a charge of discrimination. I will attempt to briefly outline some of the dangers and benefits of these changes

Continue Reading EEOC Contemplates Much Needed Changes for Charge Dismissals

When subjected to harassment or discrimination at work, different people respond in different ways. Under certain circumstances, some employees feel they have no other choice than to resign. Unfortunately, it can be very difficult for those who do so to then bring a successful claim against their former employer for lost wages. To recover actual damages for lost wages, an employee who quits as opposed to being fired must argue they were constructively discharged – the legal term for forced to resign.

Obviously, if your employer tells you to quit or be fired, constructive discharge would apply. However, such a clear ultimatum is not often the case. More common is when an employee finds themself in a situation where they are being subjected to harassment or discrimination and can simply take no more. Often, these workers have already complained to management or human resources and nothing has been done. Indeed, it may even be that the employer is trying to get the employee to quit.

Continue Reading Constructive Discharge: Are your working conditions so intolerable that a reasonable person would resign?

Halloween is one of my favorite times of the year.  I am a big fan of the horror genre.  When I was in undergrad, I took an entire semester-long course on the Vampire in Slavic Culture.  I saved every one of the books that I had to buy for that course.  I own the complete 30-film collection of Universal Studios’ Classic Monster movies on blu-ray.  I have gone on many ghost tours in different cities and have stayed in supposedly haunted hotels.

In Texas, since it is a conservative state within, arguably, the most conservative federal appellate circuit, plaintiff’s side employment law can be a horror show.  And so, with that masterful segue, let’s do something kind of fun . . . for a legal blog.  Let’s look at haunted houses and vampires through the lens of employment law.

Continue Reading Hauntings and Hankerings A Look at Haunted Houses and Vampires Through Employment Law

I’ve heard: “my vote doesn’t matter,” “the election is rigged,” and “I don’t have time.”  If votes were of no consequence, politicians wouldn’t spend millions vying for your vote.  If your vote had no value, there would be no history of people fighting for the right to do so against forces trying to deny that right to so many others.  

January 1965 – the Southern Christian Leadership Conference launched a voting rights campaign in Selma, Alabama. In Dallas County, Alabama, where African Americans made up slightly more than 50 percent of the population, less than 1 percent of eligible African American voters were registered to vote.  When attempting to register to vote, or organize others to vote, African Americans were harassed, assaulted, jailed, and even murdered.  

Continue Reading The Value of Your Vote – Get Out and Vote

On September 22, 2020, the Department of Labor (DOL) announced a new proposed rule that would, if it becomes final, change the test the DOL uses to determine if a worker is an “independent contractor” or an “employee” under the Fair Labor Standards Act (FLSA). The result of this proposed rule change will inevitably be that thousands of employees will be reclassified as independent contractors under the FLSA. The FLSA is the federal law mandates employers to pay their employees minimum wage, overtime for time worked over 40 hours, and other record keeping requirements. My goal is to provide a brief overview of the new proposed changes and hidden dangers in the DOL’s proposed rule change.

Continue Reading Department of Labor’s New Proposed Regulations Pose a Threat to Employee Rights

In a previous blog post I wrote about arbitration. As a reminder, arbitration is essentially an alternative venue to litigate claims – a private venue companies are often willing to pay a lot for because it keeps disputes out of the public record and tends to be more favorable to employers. In this blog I will talk about how some companies go even further by requiring employees to not only agree to arbitration, but to agree to an entire alternative dispute resolution (ADR) process/procedure.

Continue Reading Complications that Result from Alternative Dispute Resolution Procedures

I hear it all of the time during consultations.  A potential client will tell me about the discrimination they have experienced at work.  They will describe how they were the only member of a protected class (age, race, sex, disability, religion, national origin, color) who applied for a promotion and that in fact, they were the only one qualified for the position, but they didn’t get it.  “You know,” they will continue, “I can’t think of anyone in my protected class who has been promoted to such a position.”  I will then ask this person why they think they were not promoted.  The person will then invariably say, “I think it was because of my protected class, but I can’t prove it.”

Continue Reading Circumstantial Evidence is just as Good as Direct Evidence

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

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

Social Media and Applying for a Job

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

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

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

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

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