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?

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

I’ve heard: “my vote doesn’t matter,” “the election is rigged,” and “I don’t have time.”  If votes were of no consequence, politicians wouldn’t spend millions vying for your vote.  If your vote had no value, there would be no history of people fighting for the right to do so against forces trying to deny that right to so many others.  

January 1965 – the Southern Christian Leadership Conference launched a voting rights campaign in Selma, Alabama. In Dallas County, Alabama, where African Americans made up slightly more than 50 percent of the population, less than 1 percent of eligible African American voters were registered to vote.  When attempting to register to vote, or organize others to vote, African Americans were harassed, assaulted, jailed, and even murdered.  

Continue Reading The Value of Your Vote – Get Out and Vote

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 a previous blog post I wrote about arbitration. As a reminder, arbitration is essentially an alternative venue to litigate claims – a private venue companies are often willing to pay a lot for because it keeps disputes out of the public record and tends to be more favorable to employers. In this blog I will talk about how some companies go even further by requiring employees to not only agree to arbitration, but to agree to an entire alternative dispute resolution (ADR) process/procedure.

Continue Reading Complications that Result from Alternative Dispute Resolution Procedures