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.
We asked Jairo N. Castellanos, 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. Castellanos carries.
1. Why did you start practicing labor and employment law?
I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.
2. Who is your favorite Supreme Court Justice?
My favorite sitting justice is Justice Sonia Sotomayor.
3. What skills do you value as an employment attorney?
I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.
4. What do you do when you’re not practicing law?
I like to read fiction and spend time with my daughter.
5. What’s your favorite legal movie
That is a toss-up between A Civil Action and My Cousin Vinny.
6. What’s your favorite legal TV show
Always Sunny in Philadelphia when they are discussing bird law.
7. Have you ever learned something from one of your clients?
I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.
8. If you could argue any case in history, what would it be?
Brown v. Board of Education of Topeka.
9. What do you most want your clients to know about you?
That in me they can find someone that will fight his hardest for them regardless of the outcome.
10. Who’s your favorite judge?
Former Chief Justice John Marshall
Jairo N. Castellanos is a Trial Attorney in the Austin office of Rob Wiley, P.C. He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009. Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.
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.
One would be hard pressed to find someone who does not know that we are afforded free speech under the First Amendment of the United States Constitution. Similarly, we are also afforded the same right under the Texas Constitution Article 1 Section 8. Indeed, there are very few rights that are as well-known as the right to free speech, yet, the implications or effects that this fundamental right has in our workplace are often misunderstood and overestimated. My goal is to help clarify or shed light on a few misconceptions that I often see in my day to day practice.
While commissions and bonuses are subject to the various laws that regulate wages, such as the FLSA and the Texas Payday Law, they are unique in rather important manners. The most obvious way that they differ from hourly-based and salary-based wages is when they are considered “earned.” Put another way, if you are an hourly worker, your wages are considered earned as soon as you start working. If you have worked for an hour, you have earned an hour’s worth of wages. If you have worked half an hour, you have half of your hourly wage. It is simple. But this same inquiry varies dramatically with workers who earn their wages based on commissions.…
Continue Reading How Can I Get My Unpaid Commissions?
Do you find yourself in a situation where you are being discriminated at work, but you have no idea what to even do beyond going to HR? This is probably one of the most common scenarios I encounter during consultations. What I’d like to do is go over some very basic things to keep in mind if you find yourself in a situation where you suspect that you are the victim of discrimination.
Documentation is king.
The very first thing to do is take stock of the documents you have that are related to your employment. For example, any type of disciplinary documents, employee handbook, company memos, pertinent emails, termination letter, any complaints that you have filed or sent to anyone at the company like your boss, HR, or a coworker, or anything that may be relevant.
In March 2020, Governor Abbott joined several other governors around the nation to formally declare COVID-19 to be a public health disaster. Subsequently, Governor Abbot issued several executive orders limiting commercial activities to only those that were considered “essential businesses.” This meant that many Texans were left without work and eligible to receive unemployment benefits to help them through these troubling times. As we enter the gradual re-opening of businesses, a large swath of pressing questions presents itself to many workers that are worried about what could be seen as a premature action in light of the health risks. I will aim to shed light on two major questions that are frequently posed to us.
Continue Reading What The Reopening of Businesses Could Mean For Your Unemployment Benefits And Work From Home Status
We have all been there. You have gotten the job offer, and all that is left to do is sign the employment agreement. But before you sign that agreement, be sure to read it. In order to properly decide what is the best decision for you to make requires you to weigh all the available information. In this spirit, I’d like to touch upon two employment clauses that are gaining widespread attention. In doing so, I hope to highlight some of the dangers and pitfalls that come along when these clauses are ignored.
Continue Reading Dangers and Pitfalls of Blindly Signing an Employment Contract
Macy’s, Inc. v. Nat’l Labor Relations Bd., No. 15-60022, 2016 WL 3124847 (5th Cir. June 2, 2016).
Judges: Dennis, Benavides, Costa.
While Macy’s argued that the NLRB disregarded the law when it only certified a portion of one store’s employees, stating that the entire store would be the correct class, the Court nonetheless held…
“Plaintiff merely provides additional facts in her complaint that were not in her EEOC charge. In particular, she identifies the individuals mentioned in her charge who were allegedly promoted over her and who received higher wages for the same work. This is not an issue in which the Plaintiff is attempting to assert wholly new…
“Plaintiff states during her employment she was paid less than her male counterparts with equal or less experience. She cites three examples: (1) an unidentified male employee, who worked at the vision center for a month longer than her, told her that he made two dollars more per hour; (2) an unidentified male employee made…