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.
Mental Anguish Damages in Texas and the Fifth Circuit
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.
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Employment Law Basics: What does “at will” employment mean?
One of the questions I get all of the time during consultations is, “what does it mean to be an ‘at will’ employee?” If you have this question, then you are in luck because that is what this week’s blog is all about!
First, “at will” employment is the default employment relationship in the state of Texas. That means if you do not have a contract or agreement defining some other type of employment relationship with your company, then you are an “at will” employee. By far, most employees are “at will” employees.
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Why Trial Experience Matters
Jury trials and the lawyers and firms who do them are increasingly rare. But it is well worth seeking one out if you have an employment dispute even if you don’t want to go to trial. That is because Jury trial experience informs every decision made in a case and may drive up settlement value leading to better, more informed representation.
A short time ago, at the federal courthouse, I was talking to a named partner from a prominent employment defense firm in Austin, Texas. During a break in his jury trial that I happened to be watching, he told me that the last time he tried a case to a jury was almost four years ago when we were on opposite sides of a state court retaliation claim. At the time of the conversation, I had already done one jury trial that year and would do another in about two months. Moreover, I had done two jury trials the previous year. During the trial we did together almost four years ago, he had remarked to me that although he had represented that particular client for 10 years, this was only the second jury trial he had done for them.
Whistle(blow) while you work
You saw your boss, coworker, or subordinate do something that you believe is illegal. Maybe they stole money from the company. Maybe they falsified or altered a report. Maybe they lied to shareholders. Maybe they asked you to do something that you believed was illegal. You want to report it, but you also want to know whether you can be fired for your whistleblower activity.
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Undisputed allegations that an employee was subjected to intentional sabotage in the workplace, which included forcing the employee to operate a two person machine by herself and placing heavy materials she needed to work out of her reach, is enough to establish a prima facie case of retaliation.
“Lopez responds that she suffered the following adverse employment actions as a result of her complaints: (1) she became the subject of actual sabotage in the workplace; (2) she was given a machine that usually had two operators, but she was supposed to operate it alone; (3) the men in the workplace were threatened not
: In FLSA Collective Action, potential defenses showing that plaintiffs are not similarly situated are only addressed at the decertification stage, not during the initial conditional certification inquiry.
Defendant contends that even if there was a common illegal policy, the suit cannot proceed as a collective action because Defendant will assert defenses that require individualized analysis for each putative class member (Dkt. #22 at p. 12). Challenges in litigating the suit or a particular need to address each perspective member of the collective
in FLSA Collective Action, Declarations from Plaintiff and other individuals detailing similar primary job duties and that they did not receive overtime pay is sufficient to conditionally certify class.
Plaintiff offers testimony that he performed the duties of a mortgage loan officer working for Defendant . . . . Plaintiff provides declarations of other individuals who claim the same primary job duty. Further, Plaintiff asserts that the “same pay practice” is Defendant failing to pay loan officers compensation tied to actual hours worked, denying
Assertion of Faragher-Ellerth defense based in part on internal investigation waives work product and attorney-client privileges for all documents created as part of the internal investigation.
Even if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work- product doctrine for all documents created as
Notes taken during investigation of sexual harassment complaint are not protected by work product doctrine if company has policy of investigating all complaints of sexual harassment.
It is clear that, pursuant to Herzing’s policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business. Accordingly, the work-product privilege does not apply to Baiocchi’s notes. Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 at *4 (E.D.