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I hear it all of the time during consultations.  A potential client will tell me about the discrimination they have experienced at work.  They will describe how they were the only member of a protected class (age, race, sex, disability, religion, national origin, color) who applied for a promotion and that in fact, they were the only one qualified for the position, but they didn’t get it.  “You know,” they will continue, “I can’t think of anyone in my protected class who has been promoted to such a position.”  I will then ask this person why they think they were not promoted.  The person will then invariably say, “I think it was because of my protected class, but I can’t prove it.”

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Continue Reading Circumstantial Evidence is just as Good as Direct Evidence

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.

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Continue Reading Are you really an independent contractor?

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.

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Continue Reading Can I really be fired while on FMLA leave?

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.
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Continue Reading What The Reopening of Businesses Could Mean For Your Unemployment Benefits And Work From Home Status

Nearly 19.7 million Americans have something in common. Of those millions, those in the workforce keep their pain a secret – the idea of their employers finding out fills them with fear.

Sadly, that fear is not misplaced.

For millions, the battle with alcoholism and drug addiction is a daily fight. And because of the stigmas attached to these disabilities, people suffer in silence.

But what happens when the silence is broken, and the secret is out?

When an employee realizes they need help, they don’t know what steps to take. But they should act early. This is especially true if the employee realizes their work attendance or performance is suffering, or pressures on the job are having a negative effect on them.

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Continue Reading When the Silence is Broken, and the Secret is Out (Part 1)

In the face of a global pandemic, workplaces as we know them have drastically changed. Working from home has become common place, jobs that were undervalued in our society are now seen as essential, and workplaces once seen as safe now have increasing health and safety risks. The circumstances in this essentially unprecedented time serve as an important reminder to why we fight for the rights of workers and why it is so important to continue advancing that fight. 
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Continue Reading COVID-19 is an important reminder why we fight for employee rights

“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…

“The Defendants also claims [sic] that the Plaintiff could not satisfy the third prong of the prima facie case [for FMLA retaliation] and could not establish a causal connection that her pregnancy caused her to get fired. The Defendants contend that there is no indication [Defendant] was aware that the Plaintiff was pregnant or wanted…

“A ‘qualified individual’ means ‘an individual who, with or without reasonable accommodations, can perform the essential functions of the employment position that such individual holds or desires.’ In Plaintiff’s Third Amended and Restated Complaint, Plaintiff adds the allegation that she ‘required the cane to perform the tasks within the course and scope of employment at…

“The plaintiff attested that, as a Technical Support Specialist, she worked offsite and from home through telecommunication and reported to the Tampa, Florida corporate office, which has more than 50 employees . . . . Here, the plaintiff provides sufficient evidence to support her claim that she is an eligible employee under the FMLA. Because…