Harjeen Zibari Trial Attorney

You might have read news articles or watched TikToks about “job hopping” — a term used to describe the practice of switching jobs often. This is arguably currently most present in the tech industry and is now being described by many as an advantageous tactic. Folks report major increases in their salaries with every job switch, dramatically influencing their earning ability quickly. It’s an increasingly attractive concept when anecdotes are shared amongst friends and influencers detailing how they became high wage earners just a few years into their careers rather than taking a more traditional approach and “paying their dues” through many years in their chosen industry.

 Job hopping is tied largely to the Great Resignation, the phenomenon of employees re-evaluating their lives and careers after the height of the Covid-19 pandemic and leaving their jobs as a result. Attitudes about jobs born out of the Great Resignation, coupled with higher starting salaries in many sectors to incentivize hiring, have created the “perfect” storm for many job hoppers. According to a Pew Research Center analysis, 60% of workers who switched jobs from April 2021 to March 2022 enjoyed increases in earnings. 

 Employers who do not improve wages or general conditions for their employees can do little else to compete; during that same period, only 47% of those who stayed in their jobs from 2021-2022 saw a real increase in their earnings beyond inflation, if they even got inflation raises. These salary increases can be compounded with every job switch, as workers have been recognizing and asserting their value more and more in the past few years. And since many employers faced shortages in light of the Great Resignation, workers enjoyed more bargaining power than before during the 2021-2022 cycle. 

 So, a person who changes jobs several times within a span of say, two years, can work this dynamic to their advantage to get what they want out of their careers. These career gains don’t have to just be monetary. A person might be able to establish themselves as a full-time remote worker within their area of expertise who can live in a cool, decked out van and travel across the United States. A person might be able to set the expectation of unlimited paid time off because they enjoyed that at their past few jobs. And, put simply, job hopping can give the person the confidence that if they are unhappy with their current job, they will be able to secure a new one; after all, they’ve already done it before! 

 This is a shocking departure from the almost-taboo attitude about job hopping pre-pandemic. Too many frequent job changes can be seen as a red flag; employers might argue that it shows a lack of commitment, inability to get along with others, or unpredictability. It can be hard to explain frequent job changes in cover letters or job interviews. Some employers will not move forward at all with an applicant who has switched jobs too frequently. Of course, this might still be true in your own professional circle. Perception about job hopping varies from employer to employer, and from industry to industry. Plus, with layoffs and job shortages being reported nationwide, it’s unclear how long job hoppers have to ride this wave. Just this week, Meta laid off over 11,000 employees.

 And aside from professional considerations that come from job hopping, there may be legal considerations as well. Are you a contracted employee who has to stay in your role for a specified amount of time, or are you at-will like so many Texans and can leave when you choose? Are there work-product provisions in your employment agreement that a former employer might argue you violated by going to work for a competitor? Might they argue you violated company policy by preparing job application materials on your company computer, or interviewing on company time? Maybe their feelings are hurt that they’re losing you, their brightest shining star, and they’re withholding your last paycheck and you don’t know how to get it back.

 For answers to any of these questions, contact our offices in Austin or Houston to speak to one of our talented employment attorneys to see if job hopping may be a legal pitfall for you. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Early voting began on Monday, October 24, 2022, and continues until November 4, with Election Day – and the final opportunity to vote – being Tuesday, November 8. It is crucial that everyone take advantage of their opportunity to be heard. Historically, during midterm elections, voter turnout is lower than in presidential years. There are those that think, “my vote doesn’t count, so there’s no need for me to vote.” They typically have this same viewpoint during presidential elections. Then, there are others that simply think that midterm elections are not as important as those during presidential years. Both mindsets are absolutely wrong.

The government is designed to be a system of checks and balances. With every election our votes are designed to keep that system running in the manner in which it should—as a system that works for the American people.

During midterm elections, members of Congress are elected. Every two years, all 435 seats of the House of Representatives are up for grabs. With regard to the Senate, where Senators serve six-year terms, about one-third of the 100 seats are up for election. Members of Congress are our voices—at least they are supposed to be. Congress has the authority to make laws, declare war, confirm or reject many presidential appointments, and investigate the actions of public officials. With its power, Congress can have a huge impact on what our president is able to accomplish. It has the power to make laws that support the president’s plans or hinder them. Congress has the power to make laws that will be interpreted and enforced by our judiciary. As we clearly see, these individuals who make up Congress have a huge impact on how our government functions and is arguably the most powerful branch of the government. Congress is given its great power because it is intended to speak for us, the American people.  

When people fail to vote, Congress still speaks, but we may find that they are only speaking for those voters that are most powerful. The voters with power are the ones that consistently go to the polls and with their votes are deciding if these elected officials stay or if they go. Americans must take this power and there is only one way to do so: by going to the polls and voting.  

In addition to electing members of Congress, there are many state and local offices on the ballots. State and local officials are the ones that make the decisions that are closest to home. Where the federal government’s power end, the power of state and local governments begins.  Are lawmakers in your home state making decisions that help with gun control?  Are state and county judges fair, impartial, and properly interpreting the law? Is the school board making the best decisions for your children?  

All of the decisions of our elected officials, whether on the federal, state, or local level, have a huge impact on how we are able to live our lives. So, the questions you must ask yourself are: How do I want to live my life? Whose ideas and beliefs are more in line with the choices that I want to have control over? Whose ideas and beliefs are more in line with what is best for me, my family, and my city, state, and country? 

If you are concerned about inflation and the cost of living, it is time to vote. If you care about gun safety and gun control, it is time to vote. If you care about protections for women and a woman’s right to choose, it is time to vote. If you care about your vote, believe in democracy, and don’t want your choices stolen by those who don’t want to accept the legitimacy of an election result, it is time to vote. If you care about the Astros winning the World Series, it is time to vote.  Just checking to see if you were paying attention.  

With each election, we as American people have something at stake. In recent years, even in recent months, we have seen why our votes matter. Now is the time. Really, every time is the time. We have to be consistent to gain the power in our government that we deserve. The results will not always turn out the way we desire, but consistency may make out elected officials work harder to give us what we deserve—a government that works together for the majority. In these elections, there is no electoral college at play. The popular vote wins. EVERY VOTE COUNTS. NOW, GET OUT THERE!

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

We often think of a fair trial in terms of having an impartial judge and jury, effective assistance of counsel, the opportunity to present evidence and witnesses, and the ability to cross-examine the adversary’s witnesses and present rebuttal evidence.  However, trials are much more complicated than the general expectations. 

Fair trials don’t just happen. Judges and attorneys exercise great care to ensure fairness in trials. In civil cases, attorneys engage in what we call the discovery process to gather evidence relevant to each individual case. Behind the scenes attorneys file pre-trial motions that judges must rule on before a trial. Those motions may be to exclude, include, or limit pieces of evidence or testimony. Attorneys and judges work on the jury charge that will be read to the jury at the close of all evidence. In other words, they work on the instructions that will be provided to jurors before they deliberate to ensure that they render a verdict based on evidence presented in court and the applicable law.  

There are a number of things that happen before a case is finally handed over to a jury. This is all just to say, that the things we generally expect to ensure a fair trial are not automatic.  

Ensuring a fair trial can be more difficult when a party or key witness suffers from an intellectual disability because they have difficulty thinking or communicating. It may also take them longer to speak or process information. This can make presenting information, whether at a deposition or during trial, more challenging.  But, it is important to remember that individuals with intellectual disabilities are entitled to the same justice system, and JUSTICE, as those suffer from physical disabilities or no disabilities at all.

When an intellectual disability creates difficulty for a client when testifying, it is crucial that the employee’s attorney take great care in preparing for their client’s testimony.  This includes preparing the client for not only direct examination, but also cross examination.  

Despite the care an attorney may exercise in talking to their client and communicating with them on a day-to-day basis. Those communications are nothing like the stress and pressure created by a deposition or trial.  This is particularly true, when the opposing side may not exercise the same care when cross examining your client or may even attempt to use the employee’s known disabilities to their advantage by attempting to confuse them or in some other way make the jury question the credibility of their testimony.  

Therefore, the employee’s attorney may need extensive preparation for not only for their client, but also themselves. This preparation may include finding and utilizing valuable resources to best prepare the attorney and the client. Preparation may require consultation and sessions with an expert. It may also require practice under simulated trial circumstances. It is important to learn the way your client should be addressed, what questions he or she should and should not be asked, and how to best frame questions for maximum comprehension. Aside from finding the right assistance, the attorney must be patient. This is as equally true when sitting with the client in the office as it is when questioning them as a witness in court.  

If you or someone you know suffers from an intellectual disability, and have faced discrimination or retaliation at work, our attorneys are available for consultation. Having the courage to fight for your rights will be stressful, but when employees are brave enough to do so, they need to know that they have a team that is supportive and on their side.  

Julie St. John
Texas Employment Lawyer Julie St. John

As an employment lawyer who represents workers, the changing dynamics in the workplace, especially corporate America, are simply fascinating to me. You’ve probably heard about the “Great Resignation” and perhaps about the growth of unionization campaigns at places like Starbucks, Amazon, and Apple. Now there is a new trend, “quiet quitting.” And although I take some issue with the term as it seems to have somewhat of a negative connotation to it, the concept may be the next wave in the movement to bring about substantive change to workplace culture. 

So, first off, quiet quitting does not involve actually quitting your job. Quiet quitting is not the employment equivalent of the Irish goodbye. Workers who are quiet quitting are continuing to work. In fact, they are at least theoretically continuing to do a good job at their jobs. Quiet quitting isn’t about being lazy or unmotivated, it is about setting appropriate boundaries in employment relationships—relationships that for far too long have had an unfair imbalance of power in favor of employers. 

Now, workers are looking to take back some of that power back and prioritizing their personal lives, mental health, and overall well-being. Workers who are quiet quitting are doing so by working reasonable hours, not reading or responding to emails or calls after they’ve logged off for the day or left the office, refusing to take on tasks that they will not be able to complete without sacrificing their evenings or weekends to do so, taking vacations, etc. They are standing up against the hustle culture mentality. 

The question that remains is how employers will respond to workers who are setting reasonable boundaries. We all know the key to a happy relationship is setting and respecting boundaries. But will employers respect the boundaries workers are setting? Also, are they required to by law? 

The law that certainly comes into play when thinking about the concept of quiet quitting is the Fair Labor Standards Act, the FLSA. The FLSA requires employers to pay minimum wage and overtime for most non-exempt employees. But these protections only apply to non-exempt employees. This can lead to employers attempting to get around the requirements of the FLSA by classifying employees as exempt. However, such a classification is not always proper (i.e. not all employees can be exempt). 

To be properly classified as exempt, an employee must fall under a specific FLSA exemption based on their job duties and be paid on a salary basis. If your job doesn’t meet the duties under one of the specific exemptions from the FLSA, then you cannot be properly classified as exempt regardless of whether your employer pays you on a salary basis. Similarly, even if your job duties would qualify you to be exempt, you’re entitled to overtime pay if your employer fails to pay you a guaranteed salary. 

Unfortunately, if you are properly classified as exempt under the FLSA, there may not be as many protections for quiet quitting as you would have hoped . . . at least not in Texas. However, every case is unique. 

If you feel like your employer has violated the FLSA by misclassifying you or failing to pay you overtime, contact an employment attorney right away to make sure you understand your rights and have the best chance of recovering what money you may be entitled to. Or, if you simply feel you are overworked and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. If you want to attempt to make change in your workplace, there may be ways to go about it that will help protect you. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Most people, including defense attorneys, think that actionable retaliation can only occur if the employer fires the employee for engaging protected activity or demotes them or cuts their pay.  In other words, these people think that it must be an ultimate employment action.  But that is simply not the case.  It used to be, but as the War Doctor said in the Doctor Who 50th Anniversary Special, “no more!”

So what is the standard?  The standard is that for purposes of retaliation, all a plaintiff must show is an action that is “materially adverse.”  That standard came from the 2006 Supreme Court case  Burlington Northern & Santa Fe Rwy. v. White, 548 U.S. 53 (2006).  Again, as indicated above, that was a change from what several Circuit courts had been doing, which is requiring an ultimate adverse action.  As defined by the Supreme Court, a “materially adverse action” is much broader than an ultimate action.  Specifically, an employment action is materially adverse is any action that “would likely have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Supreme Court even provided examples of the kinds of actions that could in the proper context be “materially adverse.”  Specifically, the Supreme Court said that under certain circumstances, something as small as being excluded from business lunches or a schedule change could meet that standard.  The Supreme Court stressed that “context matters” and that whether something is significant will depend on the particulars of that case.

The other great thing about the above standard is that it basically applies to all retaliation statutes regardless of whether the underlying protected activity is unlawful discrimination, wage complaints, or fraud.

Regarding reprimands, the Fifth Circuit has described generally when such things rise to the above “materially adverse” standard.  A reprimand is actionable retaliatory conduct if it results in consequences such as changes to compensation, job duties, raises, promotions, bonuses, or job title.  So, for example, if the reprimand that you received prevents you from being considered for a merit increase or able to be promoted to a new position, then it is an actionable adverse action for a retaliation claim.  And that makes sense to me.  The whole purpose of the anti-retaliation provisions is to encourage reporting of potentially unlawful conduct.  If you thought that you might not be considered for promotion or a bonus or a raise, then you might not report discrimination that you felt you were experiencing or that saw other experience.  

Regarding transfers to other positions, the Fifth Circuit has similarly described when such things meet the “materially adverse” standard.  Essentially, a transfer is considered a materially adverse action if it is the equivalent of a demotion with one key difference: the transfer does not have to affect the employees pay.  Here is what the Fifth Circuit has said about that:  (“[T]o be equivalent to a demotion, a transfer need not result in a decrease in pay, title or grade; it can be a demotion if the new position proves objectively worse—such as being less prestigious or less interesting or providing less room for advancement.”  Alvarado v. Texas Rangers, 492 F.3d 605, 613 (5th Cir. 2007).  Again, this makes sense to me.  Otherwise, there would be this huge loophole for employers to pretty openly retaliate against individuals as long as the company did not cut the pay or title of an employee.  To use an extreme example, imagine a senior vice president reported sexual harassment by the company president.  The president then responds by changing the SVP’s job duties to include only sorting mail.  Every other SVP at that company would probably now think twice before reporting other unlawful conduct that they experienced or witnessed.    

If you think you have been retaliated against for reporting unlawful conduct, you should consider talking to an employment lawyer like those at Wiley Walsh, P.C. or Wiley Wheeler, P.C.  We have experience in handling these types of matters and would be more than happy to discuss any potential avenues you might have.    

       

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Removing and remanding a case to and fro state court is a rather straightforward process. Yet, there still exists a variety of procedural quirks and often unused processes that can make this a daunting task. In this blog I would like to present a very basic outline of that process.

When the time comes to file a lawsuit choosing where to file is a decision of pivotal importance. Where the case is filed can substantially influence the outcome of case. Depending on the nature of the claims involved it maybe to one’s advantage to keep a case in state court if possible. This is because many of the procedural mechanisms that would allow a defendant to seek dismissal of a case are not as readily available in state court. Yet, keeping a case in state court can be a challenge in an of itself. In this blog I would like to discuss a bit about the process of removing a case from state court to federal court, and how to try and get it back to state court. 

 First, in federal court there are two main ways in which a court can have the jurisdiction to hear a case. The first is if the case presents a question of federal law. In other words, does it involve a federal law or claim. The second is if the court has diversity jurisdiction. For this to exists the amount in controversy needs to exceed over $75,000 and each of the plaintiff’s citizenship must be diverse from each of the defendant’s citizenship. If either of these scenarios exists, then a case may be removed from state court to federal court provided that the motion seeking such relief is brought within 30 days of when the defendants were served.

 Once a defendant has sought to remove a case from state court to federal court, then the case is automatically transferred for further proceedings in the federal court. At that point, if the plaintiff wants to move for the case to be remanded back to state court, they must do so within 30 days if they are arguing that the removal contained a procedural deficiency. A failure to do so will most likely result in the court holding that the procedural deficiency was waived by the plaintiff. But, if the plaintiff is arguing that the court did not have subject matter jurisdiction to hear the case, then it may file the motion so long as a final judgment has not been rendered. 

 For example, let’s say that a plaintiff sued three separate defendants. Two of the defendants and the plaintiff were citizens of Texas, and the third defendant was a citizen of another state. If the third defendant were to remove the case on the basis of diversity jurisdiction it would ultimately fail because complete diversity is not present among the parties. Nonetheless, the plaintiff would need to draft and file a motion to remand with the court outlining that the court lacks the jurisdiction to hear the matter. Since the motion to remand would not be based on a procedural ground it would not necessarily be subject to the 30-day time limit, but it would still be advisable to file the motion as soon as possible. 

 This, though, is a very clear-cut example. Often times determining the citizenship of companies and dealing with procedural quirks can make this a unique experience for most lawyers. That is why a thorough analysis of the statutory language, case law, and the facts at hand are a necessity.

 While the above is a very basic outline of the removal procedure, this is an area of the law that can times present unique issues that require thoughtful and precise action. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. We can provide you with the legal experience that your case deserves.

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

You are standing in the line of a supermarket. As the queue tests your patience, you take a brief glance towards the tabloids and a certain headline captures your attention. It appears that there was a recent assassination attempt on the life of your prominent state senator. What’s more, the dubious article mentions you, specifically, by name, helpfully accompanied by one of your recent photos, and paints you as the perpetrator. You rapidly go through the week’s activities in your mind, none of which involve attempting to murder a high-profile politician. You thus do what any reasonable person would do in such an unreasonable situation: you lawyer up.

As outlandish as this scenario may seem, a similar incident recently occurred with famed videogame developer and director, Hideo Kojima. On July 8, 2022, Shinzo Abe, the former Prime Minister of Japan, was assassinated in the city of Nara in Japan. The murderer was immediately apprehended and detained. However, shortly thereafter, a Greek news station, an Iranian news outlet, and a French politician posted stories of the incident, but, oddly, accompanied their postings with images of Kojima, implicating him as the perpetrator. The different outlets all deleted or modified their postings after realizing the error, but not before Kojima, rightfully, threatened a libel lawsuit.

Libel is a written form of defamation that differs from its sister tort, slander, which is an oral form of defamation. In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

Texas happens to be one of few states that has laws that consider certain types of statements to be defamatory per se, meaning that they are automatically considered defamatory by law. Defamatory per se statements include statements that exhibit that the plaintiff (1) is incompetent in his job, trade, or profession; (2) has an infectious or serious disease; or (3) has committed a serious or notorious crime. In Kojima’s situation, he would more than likely fall under the third category of defamatory per se statements, given that the news outlets claimed that he had committed murder. However, most individuals, would more than likely find themselves in the first category.

Nonetheless, it is worth noting that libelous statements are statements of fact, not opinion. Suppose that an employer, on public record, claims that X is a bad employee. If X had an employment record of numerous complaints, write ups, follies, etc., then a reasonable person would consider X to be a bad employee, thus making the statement by the employer true and not defamatory. However, if X had a pristine record, high marks, and numerous accolades, then the employer’s statement could be considered defamatory given that no reasonable person would consider X to be a bad employee.

On the other hand, suppose the employer claims that she believes that Employee Y, a model employee, could use work in her social skills when it comes to handling clients. Even if Y had a pristine record, this statement would more than likely not be considered defamatory given that the employer’s statement seems to be constructive and not necessarily based on fact; it is suggestive rather than factual.

Realistically, most of us (one would hope) will not be falsely and baselessly implicated in the murder of a high-profile figure. However, that does not suggest that some of us will not be faced with false statements that affect our reputation and future prospects. If you find yourself in such a situation, then it would be prudent to consult with an attorney and see what, if any, options you may have. 

Colin Walsh
Texas Employer Lawyer Colin Walsh

Yes.  At least, in the Seventh Circuit.

Wanna know more?  Of course, you do!

So let’s talk a little about the exciting (as employment law cases go) new case of Ziccarelli v. Dart, 35 F.4th 1079 (7th Cir. 2022). 

In Ziccarelli, the plaintiff had worked at the Cook County Sheriff’s office for 27 years as a corrections officer.  In September 2016, Ziccarelli spoke to the office FMLA manager about taking additional FMLA leave that year.  At that time, Ziccarelli had already used about two-thirds of his available FMLA leave.  According to Ziccarelli’s account of the conversation, the FMLA manager told him not to take any more FMLA leave that year or he could be disciplined.  Of course, the FMLA manager hotly disputes this.  However, for lawsuits at the summary judgment procedural stage, all evidence and testimony must be viewed in favor of the plaintiff.  Therefore, Ziccarelli’s account of the conversation is the only one that matters.  I told you this was exciting!  After that conversation, because he feared he would be fired if he took FMLA leave, he retired.  It is important to note that he retired without taking FMLA leave or being disciplined in any way, shape, or form.

So the question presented to the Seventh Circuit was is whether or not it is unlawful interference with FMLA rights even if FMLA rights or benefits were never actually denied.  The Seventh Circuit says yes, discouraging someone from using rights they have is interreference.  The court reached that conclusion by analyzing the statutory text and the Department of Labor’s FMLA regulations as well as the FMLA’s purpose and context.  For example, the statute states that it shall be “unlawful for any employer to interfere with . . . the exercise of or the attempt to exercise” FMLA rights.  29 U.S.C. § 2615(a)(1) (emphasis added).  Therefore, the court concluded, interference does not require an actual denial of benefits.

Now, to be sure, a plaintiff must still show harm from being discouraged to exercise such FMLA rights even if the benefits were not denied.  In Ziccarelli, the Seventh Circuit said said such prejudice was shown because the plaintiff decided not to ask for FMLA leave because of the discouragement: “Evidence of a link between Shinnawi’s alleged discouragement and Ziccarelli’s decision not to take his remaining FMLA leave for 2016 is sufficient to require a trial.”  Ziccarelli, 35 F.4th at 1090.

After all that excitement, I feel I must mention that the Seventh Circuit Court of Appeals does not have jurisdiction over Texas or other courts in the Fifth Circuit, which is our federal court of appeals circuit.  That means the Ziccarelli opinion is not binding precedent here.  However, opinions issued by the court can be used as persuasive authority and the Fifth Circuit has often cited to Seventh Circuit cases. 

So the million dollar question is will this hold up in the Fifth Circuit?  There is reason to hope this reasoning could be extended to the Fifth Circuit.  Both Circuits use a similar formulation of the prima facie elements.  Specifically, both the Fifth Circuit and the Seventh Circuit have described in some cases the final two elements as “the employer interfered with his exercise of FMLA rights, and . . . he was prejudiced as a result.”  Compare  Park v. Direct Energy GP, LLC, 832 Fed.App’x 288, 293 (5th Cir. 2020) with Ziccarelli, 35 F.4th at 1084.  Further, the Fifth Circuit has said, citing regulations, that discouraging FMLA is interference.  See Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 346 (5th Cir. 2019).

If you think your FMLA rights have been interfered with, you should contact an employment lawyer to discuss the facts of your case and what options you might have moving forward.  The board certified attorneys at Wiley Walsh, P.C. have handled numerous FMLA interference cases.  You can book a consultation online at www.wileywalsh.com or by calling 512-271-5527.  

Julie St. John
Texas Employment Lawyer Julie St. John

When I first read an article several years ago about a Google employee living in the company’s parking lot, I thought to myself, “brilliant.” He had everything he needed at the office—food, gym, shower, electricity, etc.—except for a place to sleep. So instead of renting an expensive San Francisco apartment where he would likely spend very little time, he bought a box truck, tossed a mattress in the back, and parked it at work. No doubt he had the best commute time of anyone at the company. 

For the record, I still think this was absolutely brilliant. Now, it seems like more and more people agree! Although the box-truck dwelling Google employee actually moved into an apartment during the Covid-19 pandemic when he no longer had the ability to work in the office or use all its amenities, many workers residing in non-movable dwellings decided to do the opposite. They hit the road and started living the #vanlife. 

Of course, there were also a lot of people who may not have gone to such travel/adventure extremes, but instead just moved to another location, perhaps even to a different state or country. However, the motivations were still the same – the freedom to choose how and where they would live without giving up their careers. Although some moves were meant to be temporary, some were not.  Even in some cases where the moves were perhaps intended to be temporary, they may have ended up becoming permanent. 

So, what is one to do when they have relocated in one way or another when many employers are requiring workers to return to the office on either a full-time or part-time basis? 

This requirement is quite simply a non-starter for many. Even if they still live only a short walk from their office, there are still a lot of folks out there that would rather find a different job than go back to the office. This is obviously the easy answer. But for others, they may not feel like they can simply up and quit. They may find themselves wondering, is there anything that protects me from having to go back? 

The simplest answer is that absent the agreement of your employer, you’re probably going to have to quit or return. Unfortunately, your employer is allowed to dictate your presence in the office regardless of what it allowed you to do during the pandemic. Your employer may have told you they didn’t mind you moving out of state or traveling around the country working in a van. Yet, that doesn’t mean they have to let you continue on that way. 

Importantly, one key exception to this rule would be if you have a disability and you need to work from home as a reasonable accommodation. Then, your request to do so may be protected under the Americans with Disabilities Act. Although some employers may attempt to deny such an accommodation request by arguing it would not be reasonable, it will likely be a difficult argument for them if you were able to perform all the essential duties of your job remotely during the pandemic. 

If you have been fired because you could not return to the office and would like to talk with an employment lawyer about the facts of your case, call our office to schedule a consultation. Or, if you have no legally protected reason not to return but also don’t want to quit, never forget about the Google employee living in his box truck in the parking lot for years. It’s always a viable option . . . at least until you get caught. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

Over the past few days, I have been outraged by the Sesame Place disaster. I’m not only outraged by what has happened to these young children, but am outraged by the Sesame Place response.  

It is sad when any character at a theme park has to rush off to another location leaving children behind, or simply misses a child. It happens. However, seeing a character deliberately ignore children based on the color of their skin is wretched. 

Like millions of Americans this week, I watched a video of two beautiful, little Black girls be ignored at a theme park by a character they are growing up with, a character that is helping to shape their lives, a character they clearly love and hold dear, all while the little girls innocently wear their Sesame Street backpacks. These children do not understand the character that rejected them at the theme park was just a terribly flawed person dressed in costume. All these children see is she got a high five, she got a hug, and I was rejected. Now, mothers and fathers have to console…reassure…and explain what has happened at the end of what should have been a joyous day. “This Rosita” should have been fired. I’ll say this Rosita knowing that different people will dress as this character at different times.

The video shows this Rosita waving off the two girls and turning away.  In response to the video, Sesame Place stated that, “The Rosita performer did not intentionally ignore the girls and is devastated about the misunderstanding.” Did they really say Rosita is devastated? This is laughable. No, those children, their parents, the public are devastated.  Sesame Place attempts to write this off as Rosita signaling “no” to people in the crowd requesting that Rosita hold their child for a photo.  Wrong response Sesame Place.  Just…wrong response.  

This Rosita’s actions were abhorrent. Yet, Sesame Place yours were more so. Now, Sesame Place, you should face the anger of millions of Americans because of the way you handled the situation! Or better put, chose not to handle it. Your initial response signals that you excuse and condone such discriminatory behavior. The subsequent apology, acknowledgment that “it’s not OK,” and announcement of employee training sends the signal that you are insincere and only changing your tune for the benefit of Sesame Place’s business interests.   

I do not presume to know the true character of the people at the top of the Sesame Place hierarchy. However, if your business truly abhors discrimination in any form, the best response when something happens is to own it and rapidly address it. You’ll get more respect and probably a lot less backlash. 

No one expects Sesame Place, or any other business, to be perfect. Sometimes the wrong people will get past the application and hiring process and enter the building starting fires. When that happens, lies and cover ups only add fuel to the flames. Sesame Place, and other businesses, your responsibility is to douse the flames by taking the appropriate actions.  

For any reputable business, it does not serve your business interests to protect employees that show – through their discrimination against others – that they have very little concern for those business interests.

In Plaintiff’s employment law, many employees end up in our office because they work with someone like this Rosita and their employer ignores the discriminatory behavior or worse yet tries to cover it up. If you work with someone like this Rosita who has discriminated against you, or your employer has retaliated against you for complaining about discriminatory treatment you have been subjected to, contact an employment lawyer right away.  

Businesses need to take better care because sometimes the difference between a resolution and a revolution is the response.