Employee Rights

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“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.

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?

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?