If a person or company breaches a contract they have, that person or company can be sued immediately in court. If someone gets in a car wreck, in theory, a lawsuit could happen the next day. Ditto if you don’t get paid minimum wage or overtime. But with employment
We asked Colin W. Walsh, an experienced Trial Attorney in the Austin office of Rob Wiley, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Walsh carries.
1. What do you like most about being an employment lawyer?
I enjoy getting tangible results for my clients and being involved in an area of law that affects everybody every day.
2. What is the most important issue to you of being an advocate?
One of the most important issues to me as an advocate is to not only zealously represent my clients, but also the law.
3. What kind of clients do you like best?
I like the clients that I am able to help who were not able to find help elsewhere. On a couple of occasions now, a client has told me that my firm is the first one that has listened to his or her issue and offered any kind of assistance.
4. What do you think is the most important part of a good case?
The client. If the client is not invested, then the other side won’t take it seriously and neither will the jury.
5. What labor and employment issues do you think are currently trending?
The biggest employment discrimination issues I see right now are related to age, disability, and pregnancy discrimination. For some reason, these types of discrimination seem to be acceptable to employers. The other issues right now are minimum wage and overtime pay.
6. Who is your favorite Supreme Court Justice?
Justice William Brennan.
7. What would you say to HR of a company about how to treat employees?
It would be to listen to your employees. Most employees are not looking to sue when he or she goes to Human Resources. These employees are sincerely looking for help. Nothing makes an employee seek legal counsel like when he or she complains about something and HR starts investigating the employee instead of the complaint.
8. Besides Rob Wiley, P.C., what is the most interesting job that you have had?
The most interesting job I’ve had is working as an extra in film and television. I should have known that I was destined to be a lawyer at that point because two of my biggest gigs were the TV show “Boston Legal” and the film Charlie Wilson’s War.
9. What is your favorite food?
Meat pies. I first discovered them when I studied abroad in undergrad. I can’t believe these have not caught on in the U.S. because they are brilliant.
10. What’s the best part of living in Austin?
All of the outdoor festivals. And the Longhorns.
Colin W. Walsh is a Trial Attorney in the Austin office of Rob Wiley, P.C. He graduated from The University of Texas at Austin with a bachelor’s degree in theatre in 2006. Mr. Walsh then graduated from The University of Texas School of Law with honors in 2011.
Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work. That raises the question of what equal work means. The statute itself helps with this question a little bit. The text of the statute states that work is considered equal if the performance of both jobs…
In order to make a viable retaliation claim, a plaintiff must generally have evidence of each element of a what is called a prima facie case. The phrase prima facie simply means “on first impression.” In the employment law context, a prima facie case means the basic elements of a claim that, if true, give rise to an inference of discrimination or retaliation. So for a retaliation claim, a plaintiff must usually show the following elements (1) that the plaintiff engaged in protected activity, (2) that the plaintiff suffered a materially adverse action, and (3) that a causal link exists between the protected activity and the adverse action. If facts establish each of those elements, then under the law, an inference of retaliation arises, which the defendant must then rebut by producing a legitimate, non-retaliatory reason for the adverse action. The purpose of this post is to briefly discuss what is necessary to show that third all-important causal link element under Fifth Circuit law.
The first thing that needs to be made clear is what level of causation is necessary to show the causal link. The causal link standard is very low. According to the Fifth Circuit, all a plaintiff must show to establish a prima facie causal link is that the protected activity and the adverse action are “not wholly unrelated.” See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001). So how do you do that?
In 2019, the attorneys at Wiley Walsh, P.C. acted as lead counsel in two federal jury trials and one arbitration. With help by attorneys from Wiley Wheeler, P.C. on the jury trials and help by attorneys from Rob Wiley, P.C., our clients prevailed in all three proceedings. We also co-counseled with the EEOC in a case that resulted in a cutting-edge consent decree against a major airline involving online sexual harassment.
In 2020, despite a pandemic, shelter-at-home-orders, and the closing of the courts to in person proceedings, we did even better. Although, there were no trials, our appellate docket was very successful.
And it started right away. First, on January 7, the Administrative Review Board reversed summary judgment against one of our clients asserting retaliation under the Surface Transportation Assistance Act. We alleged that our client was retaliated against by a trucking company for reporting safety issues. The Administrative Review Board held that our client was entitled to a full hearing on the merits. That hearing is currently scheduled for April 2021.
Let’s say you have been discriminated against based on your race, but either work for a company with less than 15 employees or are an independent contractor. You know that neither Title VII nor the Texas Labor Code applies to you. Is there any other protection? YES! The answer is 42 U.S.C. §1981.
Let’s say you are an employee of a company with 15 or more people, but that you didn’t hire a lawyer until well after the 300-day statute of limitations for Title VII to assert your race discrimination claim. Do you have any hope? YES! The answer is 42 U.S.C. §1981.
So, what is 42 U.S.C. § 1981?
42 U.S.C. § 1981 prohibits race discrimination and retaliation in the making and enforcing of contracts. It is meant to provide “broad and sweeping” protection against all race discrimination. Faraca v. Clements, 506 F.2d 956, 959 (5th Cir. 1975). According to the Supreme Court, the Civil Rights Act of 1866, from which § 1981 is derived, “was designed to prohibit all racial discrimination . . . with respect to the rights enumerated therein.” Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-36 (1968).
Even if you’ve never seen the TV show or read any of the books about Perry Mason, criminal defense attorney extraordinaire, you know the moment I’m talking about. It happens at the end each episode or book. Perry Mason is representing an innocent man or woman, but things are not looking good. The District Attorney, Hamilton Burger is on the attack, presenting one damning piece of evidence after another. But then Perry calls one more witness or recalls a witness from earlier in the trial and everything changes. Under withering cross-examination, Perry breaks down the witness by pointing out inconsistencies, falsehoods, and ulterior motives. By the end, the witness is a reduced to a quivering mass of raw nerves. And then the witness confesses! Or points to the real guilty party sitting in the back row of the courtroom. The charges against Perry’s client are quickly dropped and Perry Mason once again emerges victorious.
Continue Reading The Case of the Missing Perry Mason Moment
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.
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.”
One issue that comes up repeatedly is whether an individual is an independent contractor or an employee. The reason this comes up quite often in an employment law context is because most employment laws only apply to employees. For example, the retaliation provision of Title VII, which prohibits retaliation for reporting unlawful discrimination, expressly applies only to employees.** The difference also matters for benefits, overtime pay, minimum wage, and tax consequences. Very broadly speaking, independent contracts are usually cheaper for employers than employees. Because of that, employers often misclassify employees as independent contractors. This blog post looks at what that means.
When someone gets treated unlawfully at their job because of that person’s race, age, gender, sex, sexual orientation, disability, religion, national origin, or color that person suffers more than just loss of income. A person’s job is often tied to their identity, their reputation, their sense of worth, and sense of purpose. Losing a job, not getting a promotion, not getting hired, or being subjected to severe or pervasive harassment causes very real pain and suffering. It can strain friendships, estrange family members, break up marriages, and ruin lives. Because unlawful employment discrimination causes that kind of actual damage, most employment laws allow a person to recover money for those things. In employment law, these damages are called compensatory damages and can be recovered in lawsuits against private employers, state and local government employers, and federal agencies.