Employee Rights

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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 changesContinue Reading EEOC Contemplates Much Needed Changes for Charge Dismissals

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

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 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 JobContinue 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

The Family and Medical Leave Act provides eligible employees with unpaid, job-protected leave for certain family and medical reasons.  When employees request or take leave, these workers have protections from FMLA interference and retaliation.  This means that employers may not interfere with a worker’s rights to take FMLA leave and may not take adverse employment actions (e.g., write ups, demotions, terminations) against employees for exercising their rights under the FMLA.

Am I protected under the FMLA?

For employees to have protections under the FMLA, their employer must have a minimum of 50 employees within a 75-mile radius of the work location. Additionally, the employee must have worked for the employer for at least a year and must have worked at least 1,250 hours during that year. If all these conditions are not met, the employee may not be protected by the FMLA.Continue Reading Can I really be fired while on FMLA 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.Continue Reading Common Misconceptions Regarding Free Speech

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.Continue Reading Mental Anguish Damages in Texas and the Fifth Circuit

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.Continue Reading Employment Law Basics: What does “at will” employment mean?