Employee Rights

Subscribe to Employee Rights

Hospital workers and employees of other patient care facilities have some of the most difficult jobs out there. The enormous amount of stress, pressure, and difficulty in performing these vital jobs has only been made worse this past year by the global pandemic that has swept across this nation. Given the huge amount of responsibility and the sheer importance of the jobs carried out by hospital workers, it is now more important than ever that COVID-19 safety procedures be followed. This is only possible if workers are allowed to freely report violations of COVID-19 safety procedures. Luckily, Texas law agrees. In this article I will discuss the very basics of the Texas Health and Safety Code and how it may be able to help you create a safer working environment. 

Under the Texas Health and Safety Code, employees of hospitals, mental health facilities, and treatment facilities are protected from retaliation by their employers if they make a report of a violation of law, which includes a violation of the code itself, a rule adopted by the code, or a rule of another agency. Moreover, if a time gap of less than 60 days is between when the report is made and an adverse action, which can be a termination, suspension, or a demotion, takes place, the law states that there is a rebuttable presumption that the adverse action took place because of the report.

…
Continue Reading The Texas Health and Safety Code: An Often Forgotten Tool in Helping Texas Workers

With the new year brings new changes to the Texas Rules of Civil Procedure. Some of those changes, those to TRCP Rule 169 which creates and governs the process for expedited actions in Texas, are quite significant and could potentially result in an increased number of lawsuits being filed under the Rule. 

Expedited actions under TRCP Rule 169 are essentially lawsuits that meet certain criteria and have special procedures and limitations. These procedures and limitations in turn allow for expedited actins to be fast-tracked to trial, hence the name. Indeed, expedited actions exist to “promote the prompt, efficient, and cost-effective resolution” of lawsuits that do not exceed a certain monetary value and do not seek any non-monetary relief. The key change to Rule 169 is what that monetary value is and, accordingly, what lawsuits can be brought as expedited actions. 

…
Continue Reading Changes to the Texas Rules of Civil Procedure Allow for More Expedited Actions

The idea of someone taking our hard-earned wages strikes at the core of the average American. After all, we worked for and earned our paychecks. It should therefore come as no surprise that your employer cannot steal any of your wages. But many corporations and companies have become creative. They have found unique and clever ways to shortchange their workers and steal the wages left over. Nowhere is this more prevalent than in the restaurant industry. Restaurants have consistently targeted waiters and tricked them into illegally handing over their tips. And the worst part is, many of those affected do not even realize it. This article will examine common ways through which restaurants shortchange their workers and examine waiters’ rights under the Fair Labor Standards Act (“FLSA”).

The FLSA was passed to ensure that each and every worker receive the minimum wage as well as overtime pay when employees work for more than 40 hours a week. The only exceptions to this law, however, are restaurants. Although restaurants are required to pay their workers the minimum wage, they are allowed by law to take a “tip credit.” The tip credit allows a restaurant to pay its tipped workers $2.13 an hour rather than the standard $7.25 an hour, the idea being that the wages received plus the tips gained would provide waiters with the minimum wage. Nonetheless, restaurants have found illegal ways to try to circumvent the FLSA and shortchange their workers from the tips they are owed. The following are the most common ways through which restaurants shortchange their workers.

…
Continue Reading Shortchanged: Wage Theft and Your Rights Under the FLSA

On December 22, 2020 the Department of Labor unveiled a final rule that will put into place a large swath of changes that will affect tipped employees across the country. One of the most troubling changes that will take effect is that employers will now be able to claim a tip credit on back of the house staff, which means that employees who are not traditionally and customarily tipped will now be able to participate in tip pools. This means that cooks, janitors and other traditionally non-tipped employees will be able to claim a portion of the tips that front of the house employees receive. Fortunately, this change will not be extended to managerial staff, who will still be unable to participate in the tip pool. At the moment, this new rule change is set to take effect 60 days after December 12, 2020. 

Generally speaking the FLSA mandates that employers must pay their employees a minimum of $7.25 an hour for the work they perform. Among the various exemptions and loopholes that are found within the FLSA is an employer’s ability to claim a “tip credit” on certain tipped employees. When an employer elects to take a tip credit it allows them to pay the selected employees only $2.13 an hour so long as those employees still make a minimum of $7.25 an hour when the tips they have received are taken into consideration. Moreover, an employer is able to pool together all of the tips earned in a night and disperse it among the tipped employees. This is called a “tip pool.”

…
Continue Reading Department of Labor Issues New Regulations for Tipped Employees

To many people in the workforce, the idea of a mass layoff once seemed unfathomable. You grow so accustomed to your job and to the daily routine it enables that it essentially becomes a part of your life that feels permanently fixed. In the midst of the current pandemic, however, mass layoffs, along with resignations and terminations, have become commonplace. The idea of a mass layoff no longer seems like the boogeyman; to many in the workforce, mass layoffs now feel like a very real possibility. Mass layoffs are scary, unpredictable, and harmful, but they should not be unexpected. This article will examine mass layoffs and workers’ rights under the Worker Adjustment and Retraining Notification Act.

The Worker Adjustment and Retraining Notification Act, or “WARN Act”, as it is aptly called, was designed to protect employees in the event of a plant closing or mass layoff. The WARN Act requires employers to provide 60 calendar-day advance notice to employees subject to plant closings or mass layoffs. Employees entitled to notice under the WARN Act include managers and supervisors along with hourly wage and salaried workers. The purpose of the WARN Act’s notice requirement is to give workers and their families the opportunity to transition to new employment and to adjust to their loss and to even enter into skill training or retraining programs to improve upon one’s marketability. The only catch is that notice of a plant closing or mass layoff is required only when the company has 100 or more employees; in other words, if the company that you work for consists of 99 employees (including managers and supervisors), then the company does not have to give you notice of a mass layoff. 

…
Continue Reading Expecting the Unexpected: Mass Layoffs and Workers’ Rights Under the WARN Act

“In the end, we will remember not the words of our enemies, but the silence of our friends.” – Martin Luther King, Jr.

Discrimination is real.  Denying systemic racism, doesn’t make it nonexistent.  In 2020, we’ve seen a resurgence of people actively fighting against race discrimination in large numbers.  Police violence against Black Americans reignited a fuse.  Protestors have taken their voices to the streets, have launched social media campaigns, and have organized to fight injustice where it thrives with hopes of real change.  

Racial injustices can permeate every aspect of a person’s life.  It can be four Black, young adults being pulled over by the police when they’ve done nothing wrong, only to have an officer say, “where are you coming from” and “can I search your vehicle.”  It may be realizing you are being followed in a department store.  It may be someone saying, “yeah, I have a problem with that Black teacher.” It can even be seen in the hiring, firing, and promotional practices of employers. 

…
Continue Reading To Witness or Not to Witness.

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).

…
Continue Reading Section 1981 prohibits race discrimination and retaliation in contracts, including race-based interference in contracts.

When I meet a potential new client for the first time, one of the things I always ask is what their goal is. One of the answers I often get is that they want someone to tell their story. However, I do not view telling a client’s story as a goal. I see it as a tool that can be used to achieve a goal. And social science research on persuasion has valuable lessons for how a client telling their own story can be quite a powerful tool indeed. 

Hearing a story from the right messenger can be particularly compelling.

Social science research shows that storytelling is one of the most effective methods of persuasion. Ultimately, as lawyers, we are constantly trying to persuade. Accordingly, we must not only know and argue the law, we must be able to tell our clients’ stories in an effective way. 

Moreover, research shows that it is not only the story that matters, it is also the messenger. Although sometimes I may be the appropriate messenger, oftentimes my clients are the most effective messengers of all. Therefore, as an advocate for employees, I not only tell my clients’ stories, I also help my clients get comfortable with telling their own stories. 

…
Continue Reading Lessons from Research on Persuasion: Telling a Story and Selecting the Right Messenger

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

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?