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

Former Supreme Court Justice Ruth Bader Ginsberg was widely considered to be one of the most employee-friendly justices in the Supreme Court’s modern era. Through her lengthy tenure on the court, Justice Ginsburg authored several opinions ruling in favor of employees and unions and has largely broadened the rights of employees. With the recent appointment of Justice Amy Coney Barrett to fill the seat of Justice Ginsburg, one should expect a significant impact on the rights of employees and the future of employment law. This article will examine the effect of Justice Barrett’s appointment on employer rights, specifically focusing on religious freedoms in the workplace as well as employee discrimination claims. Justice Barrett’s appointment will ultimately create a dynamic in the Court that will more than likely broaden the rights of employers.

Before we delve into Justice Barrett’s effect on employment law, it is worth taking a moment to fully develop her judicial philosophy. Justice Barrett largely takes after former Justice Antonin Scalia in that she hails from a politically conservative background and espouses the interpretative methodologies of textualism and originalism. Textualism is a form of statutory interpretation that tends to focus on the language of the law at the time the law was written as well as what the people understood the words of the law to mean at the time the law was enacted. Originalism, on the hand, focuses more on the intent of the founders in drafting the language of the Constitution. Justices Roberts, Gorsuch, Alito, Thomas, and Kavanaugh all seem to ascribe to either textualism or originalism or both, making it more than likely the case that Justice Barrett will side on decisions with this bloc of the court. Historically, this bloc of the court tends to side with employers over workers and emphasizes employers’ rights and religious freedoms in its decision-making process. 

Continue Reading A Steeper Hill: The Effects of Justice Amy Coney Barrett’s Appointment on Employer Rights

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 changes

Continue Reading EEOC Contemplates Much Needed Changes for Charge Dismissals

When subjected to harassment or discrimination at work, different people respond in different ways. Under certain circumstances, some employees feel they have no other choice than to resign. Unfortunately, it can be very difficult for those who do so to then bring a successful claim against their former employer for lost wages. To recover actual damages for lost wages, an employee who quits as opposed to being fired must argue they were constructively discharged – the legal term for forced to resign.

Obviously, if your employer tells you to quit or be fired, constructive discharge would apply. However, such a clear ultimatum is not often the case. More common is when an employee finds themself in a situation where they are being subjected to harassment or discrimination and can simply take no more. Often, these workers have already complained to management or human resources and nothing has been done. Indeed, it may even be that the employer is trying to get the employee to quit.

Continue Reading Constructive Discharge: Are your working conditions so intolerable that a reasonable person would resign?