Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Justice Ketanji Brown Jackson’s nomination to the Supreme Court is notable for several reasons. Not only is Justice Jackson the first African-American woman to serve on the Supreme Court, but she is the only member of the Court to have served as a Federal Public Defender. Justice Jackson’s appointment to the Court carries several ramifications and potential changes to the Court that encapsulate decision making on everything from criminal law to constitutional law to property law. The most notable implication of Justice Jackson’s appointment to the Supreme Court, strictly for the purposes of this article, is her effect on employment law. Justice Jackson has had a varied history in employment law. This article will delve into that history and discuss what effect, if any, the appointment Justice Jackson will have on employment law. 

Justice Jackson has issued decisions that have benefited unions. For example, in AFL-CIO v. Federal Labor Relations Authority, Justice Jackson invalidated a policy change made by the Federal Labor Relations Authority that effectively restricted the scope of workplace changes subject to collective bargaining. Again, during her time as a trial judge, Justice Jackson invalidated executive orders made by President Trump that imposed temporal limits on contractual negotiations between federal agencies and unions, limited the ability of federal employees in union activities whilst at work, and made it significantly easier for federal agencies to terminate employees. These are but a few of many examples of Justice Jackson’s rulings in favor of unions.

Justice Jackson’s rulings are significant in that her appointment could lead to more laws that favor unionization. Given the recent developments with Amazon and Starbucks (to name but a few), the United States may be on the cusp of experiencing a new era in labor activism. Justice Jackson’s appointment could be enough to usher the U.S. into that era or, at the very least, incentivize workers to further strive for that new era.

However, Justice Jackson’s decisions on workplace discrimination and retaliation do tend to be more varied. For example, in Raymond v. Architect of the Capitol, Justice Jackson granted an employer’s motion for summary judgment in a case alleging race and national origin discrimination. In this case, a three-person panel failed to select a black candidate of Jamaican descent for promotion. Justice Jackson found no evidence of discrimination, despite the fact that one panelist had made comments regarding the plaintiff’s national origin. Justice Jackson reasoned that there was no evidence, other than the employee’s testimony, that the comments had been made. In contrast, in Park v. Hayden, Justice Jackson denied an employer’s motion for summary judgment on a national origin discrimination case because she reasoned that the factual inconsistencies and credibility determinations needed to be resolved by a jury rather than a judge.

Similarly, with retaliation claims, Justice Jackson has had a varied history. For example, in Manus v. Hayden, Justice Jackson denied a plaintiff’s retaliation claim due to the lack of a causal connection. In this case, an employer was providing an employee with baseless critiques. Justice Jackson found that because the critiques began  prior to the protected complaint being filed, there was no causal connection. However, in Alma v. Bowser, another retaliation claim, Justice Jackson found in favor of the plaintiff and wrote a scathing opinion directed at the defendant.

Justice Jackson’s appointment is historic for several reasons, and she will undoubtedly leave a lasting impact in Supreme Court rulings. Focusing on her significance in employment law, however, does carry more uncertainty. Though Justice Jackson will, more than likely, aid in the progression of union and labor laws, her decisions regarding workplace discrimination and retaliation remain ambiguous given her history. One will have to keep a watchful, but hopeful eye on the new appointee. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

During the 2020 United States presidential campaign, President Joe Biden pledged to appoint a Black woman to the United States Supreme Court should there be a vacancy.  Now, in 2022, this pledge may become a reality with Judge Ketanji Brown Jackson, who has a track record that proves that she is both qualified and capable.

I applaud Judge Jackson on her grace under pressure, as Monday, March 21, 2022, marked the beginning of her confirmation hearing before the Senate Judiciary Committee. The grind of the hearing process for Judge Jackson was magnified on Tuesday, March 22, with the beginning of what would become more than 20 hours of questioning from the committee, which ended Wednesday, March 23.

At the conclusion, the public may have been left with one final question: was this confirmation hearing really about Judge Jackson or was this confirmation hearing really political grandstanding?  

Judge Jackson was repeatedly questioned regarding sentences she handed down in a select few child pornography cases. However, legal experts weighed in on this and found that the sentences she delivered, when compared to a bipartisan subsection of district judges, were in line with that of other judges.  However, this was of no moment to committee members that continued this line of questioning.  

Additionally, Judge Jackson’s work as a public defender was made to be an issue, in particular her work on cases for detainees at Guantanamo Bay.  The committee members attacking her work on these cases, did not care about basic principles of the criminal justice system such as, “innocent until proven guilty” and an accused right to counsel.  

The attack on Judge Jackson had nothing to do with her qualifications, as her actions have unmistakably been in keeping with the actions of a great lawyer and judge.  As an attorney her job was to zealously advocate for her clients. As a judge, her duty is to be neutral and apply the law to the facts.  In both capacities, there is a duty to uphold and follow the law, which is exactly what her record shows she has done.  

The constant attacks were nothing more than political propaganda for those committee members, putting topics on rewind and repeat to support their claims of being tough on crime and high on national security.  Sadly, the attacks against Judge Jackson only affirmed for me the rights people are willing to trample in pursuit of what they believe is justice.  The ideology behind the attacks such as the ones aimed against Judge Jackson is the very reason the justice system fails when it does. Justice is about doing what is right, not always about doing what is popular.  

Judge Jackson was questioned extensively about critical race theory and responded that it doesn’t come up in her work as a judge.  She consistently outlined her approach to cases that come before her court, all with an aim on remaining impartial and applying the law.  However, committee members pressing this issue were not interested in her judicial competence and integrity. Clearly, this was nothing more than committee members using this platform to garner political support from people that have criticized critical race theory without even understanding what it actually is. Worse yet, they understand it, but want it erased because it shines light on the role race has played in framing the social institutions of America.

Judge Jackson was questioned regarding gay marriage, with opponents making it clear to their base that they remain opposed.  She was asked to define the word woman, an opportunity for committee members to bring gender politics into the arena.  She was questioned regarding court packing, a matter that is a policy issue for Congress.  It was a free-for-all for political grandstanding.

At the end of the day, aside for the historical significance of her nomination, Judge Jackson remains an outstanding selection for the U.S. Supreme Court.  

Established in 1789, with over 233 years of history, there have been 115 justices appointed to the U.S. Supreme Court.  Of those 115 justices, 108 have been White males.  Only two have been African American – the first being Justice Thurgood Marshall in 1967. Five have been women, the first being Sandra Day O’Connor in 1981. In 2009, Justice Sonia Sotomayor was appointed to the Court, becoming the third woman in the Court’s history, but the first woman of color—the first Hispanic, first Latina.

Black women are just as capable of shouldering the responsibilities bestowed upon the U.S. Supreme Court. Today’s America is drastically different than that of 1789, it is well past the time for our courts to reflect that difference in meaningful ways and this is yet another opportunity to do so.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Hark, frēndes! The feld flours blosme and the sǒnne shines.  “Tis spring.  And that means its Ren Fest season!

Right now, through April 24, just outside of Austin there is the Sherwood Forest Faire.  After that, head north by horse for three days and you will arrive at Scarborough Renaissance Festival.  If you are going to Scarborough Faire, can you please check in on one who lives there and see if my Cambric shirt with no seems or needlework is ready?

In honour of the season, I thought it might be fun to look at some of ye olde qui tam actions.  My colleagues have previously written much more useful and informative blogs on modern American qui tams, which enable individuals to sue government contractors and grantees on behalf of the government for fraud.  Mostly these involve Medicare and Medicaid fraud, but there are other types of fraud claims that can be brought through qui tam actions as well.  If you wish for such practical and helpful information because you think your employer is defrauding the government, let me refer you to the following two blogs:

Julie St. John’s 2021 blog, “When You Believe Your Employer is Defrauding the Federal Government – Protection from Retaliation, available at:

https://www.texasemploymentlawyer.com/2021/04/when-you-believe-your-employer-is-defrauding-the-federal-government-protection-from-retaliation/

Deontae Wherry’s 2020 blog, The False Claims Act: Suing Your Employer on Behalf of the Government, available at:

https://www.dallasemploymentlawyer.com/the-false-claims-act-suing-your-employer-on-behalf-of-the-government/

Essentially, a qui tam action is an action that allows enforcement of the law by an uninjured private citizen on behalf of the government in exchange for a share of the proceeds obtained in a successful prosecution of the claim.  You can find laws providing for such actions going all the way back to Ancient Rome.  For example, in the first century B.C.E., Cato the Younger both sued his political opponents and was sued by them for alleged violations of criminal law.  In the Sixth Century C.E., during Justinian’s reign, a private citizen could be prohibited from bringing a private enforcement action if that citizen had already brought two prior qui tam actions.

In 695 C.E., the King of Kent in England passed a law that prohibited work between sunset on Saturday and sunset on Sunday.  If you informed the authorities about someone who violated that law, you would be entitled to half of the healsfang, or fine, collected from that damnable overachiever who worked on the weekends as well as half of the profits form the labour that was done during that time.

In the fourteenth century, the English Parliament provided many avenues for qui tam actions as a way to ensure enforcement of the laws.  Here are a couple fun ones.

The 1331 law providing a qui tam mechanism to enforce aspects of the 1328 Statute of Northampton is relevant to the current faire season.  The Statute of Northampton, in part, regulated the length of time fairs could remain open.  However, both merchants and lords had incentives to keep fairs open longer.  Merchants obviously wanted to sell more product and the lords who hosted the fairs often collected tolls on the total merchandise sold at the fair.  So, to ensure compliance with the law, Parliament enabled private citizens to sue on behalf of the King and, as reward, receive a fourth of what was forfeited.  The penalty for violations was double the value of what was sold outside the permissible time for the fair.

In 1455, Parliament passed an Ordinance limiting the number of lawyers that could practice in the City of Norwich to two and in the counties of Norfolk and Suffolk to six each.  The preamble to this Ordinance is too good not to quote at length:

Whereas of Time not long past within the City of Norwich, and the Counties of Norfolk and Suffolk, there were no more but six or eight Attornies at the most, [coming] to the King’s Courts, in which Time great Tranquillity reigned in the said City and Counties, and little Trouble or Vexation was made by untrue or foreign Suits; And now so it is, that in the said City and Counties there be Fourscore Attornies, or more, the more Part of them having no other Thing to live upon, but only his Gain by [the Practice of] Attorneyship, and also the more Part of them not being of sufficient Knowledge to be an Attorney, which [come] to every Fair, Market, and other Places, where is any Assembly of People, exhorting, procuring, moving, and inciting the People to attempt untrue [and] foreign Suits, for small Trespasses, little Offences, and small Sums of Debt, whose Actions be triable and determinable in Court Barons; whereby proceed many Suits, more of evil Will and Malice, than of the Truth of the Thing, to the manifold Vexation and no little Damage of the Inhabitants of the said City and Counties, and also to the perpetual [Diminution] of all the Court Barons in the said Counties, unless convenient Remedy be provided in this Behalf.

Ordinance, 33 Hen. VI, ch. 7 (1455).  The Ordinance was enforced through a qui tam action by private citizens against any person who acted as a lawyer without proper admission to the King’s courts.

I could provide many more examples of historical qui tam actions, but I have a faire to get to!

I am heavily indebted to the following resources for the above blog post, which also provide great further reading!

  • R. Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. Rev. 539 (2000), available at: http://scholarship.law.unc.edu/nclr/vol78/iss3/2
  • Jonathon Rose, Medieval Attitudes Toward the legal Profession: The Past as Prologue, 28 Stetson L. Rev. 345 (1998),

available at  https://www.stetson.edu/law/lawreview/media/medieval-attitudes-toward-the-legal-profession-the-past-as-prologue.pdf

  • Middle English Compendium, https://quod.lib.umich.edu/m/middle-english-dictionary
Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: Determining whether an employee is able to be paid for time spent on call is a rather complex and fact intensive inquiry. Indeed, the absence or presence of a facts can be the difference in being owed thousands of dollars in unpaid wages. In this blog I aim to bring a bit of clarity to the issue. 

Many employers require their employees to be on call even after hours, yet they refuse to pay them for the time that these employees spent glued to their phones. For many salaried or exempt employees this is of no consequence. On the other hand, if you are a non-exempt hourly employee, you may be entitled for compensation for the time you spent on call. That is because even though you may not be working, the restrictions put on you may be to such an extent that an employer must pay you for that time under the law. 

 While state law does not squarely address the issue of when on call time can be compensable, the Fair Labor Standards Act and accompanying case provides some guidance. This inquiry though is not always a straightforward question. In fact, it is one that is rather fact intensive in nature. The critical question that one must answer about the time spent on call is whether “the employee can use the time effectively for his or her own purposes.” Bright v. Houston Nw. Med. Ctr. Survivor, Inc., 934 F.2d 671, 676 (5th Cir. 1991)(internal citations omitted). In Bright the Fifth Circuit engaged in an analyzed of how much the freedom the employee had during the on call time. In interpreting this standard various courts have looked at if the employee is expressly forbidden from doing certain activities, traveling outside of a certain area, the amount of calls they receive a day, the interference from engaging certain leisure activities, and going out for social engagements. 

 To put it another way, the closer an employee is to being able to do what they normally would do if they were not on call the most likely that on call time is not compensable time. Conversely, the further away they are from being to engage in their normal activities, the more likely it is that the time they spent on call is compensable.

 Let’s put forth an example to illustrate the point. Let’s assume that an employee works 30 hours a week, but they are required to be on call for 20 hours a week for which he is not paid. If he is required to come in to work or perform work during the on call schedule, he is compensated adequately. But, when he is on call the employer has imposed a myriad of restrictions which include that he cannot be more than 15 minutes away from the work site, cannot leave his home unless it is an emergency, is unable to drink any alcohol, and cannot be engaged in any social activities. Under this scenario a court would most likely find that the time that he spent on call is actually compensable time. The reason for this is easy to see. It cannot be fairly said that the employee has a similar degree of freedom on his on call time that he does to his free time. Because of that the employee should actually be paid 40 hours at his regular hourly rate and 10 hours at his overtime rate a week. Week after week this amount can grow and become rather substantial. 

 While the example above is rather clear cut, the main take away should be is that these inquiries are very fact specific. In fact, courts have noted that they is rarely, if ever, is a bright line rule for these types of cases. Instead, the decision of whether on call time is compensable must be made on a case-by-case basis. That is why it is it is imperative to seek out an attorney that specializes in employment law so your situation can be adequately evaluated. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. If you feel like you should be compensated for your on call time, feel free to contact us to schedule an appointment with one of our attorneys. 

 

 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Recently, Belgium announced a labor reform allowing for a four-day work week. The reforms also provided workers the ability to power off work devices and ignore work-related messages without fear of retaliation. The aim of the reforms was to increase productivity and strengthen both people and businesses. The United Arab Emirates, Scotland, Iceland, Japan, and Spain are among the few others that have either incorporated or begun a trial phase to incorporate, a four-day work week. The trials of the four-day work week have largely been a success, with the workforce experiencing a rise in productivity and happiness. This raises the natural questions: why is the four-day week so unpopular and will it ever be possible in the United States?

Four-day work weeks are unpopular among employers for two primary reasons: tradition and trust. The former is the more obvious of the two. Originally, in 19th Century England, the six-day work week was the norm. This caused many Englishmen to use the seventh day (Sunday) to engage in festivities such as gambling and drinking. This generally caused “Saint Monday” to emerge in which large amounts of workers would be absent from the workplace to recover from Sunday’s merriment. Employers soon relented and provided employees with a half-day on Saturday as a trade-off for guaranteed attendance on Mondays.

It was not until 1908 that Saturday transitioned from a half-day to a full day’s rest when several American factories chose to accommodate Jewish workers in observance of Saturday sabbath. By 1929, with the emergence of the Great Depression, the five-day work week became cemented in American society. The reasoning was that shorter hours could remedy the increasing underemployment.

Now, nearly a century later, with mills and factories being replaced by advancing technology, we have maintained strict adherence to the five-day work week. The changing landscape seems to have no effect on the old ways. And, to be clear, it makes sense. Many companies who consider transitioning into the four-day work week must recognize the unfortunate fact that they would be placing themselves at a disadvantage against those that favor the five-day work week. Several employers would essentially be shooting themselves in the foot. Additionally, there are certain professions that require a five-day work week. One example can be found in the legal profession. Courts operate on a five-day schedule; therefore, law offices should follow suit lest they risk missing a deadline or a court date. With some professions, the five-day work week is ingrained in its functionality and it is nearly impossible to separate the two. The only solution seems to be major government-implemented structural reforms like those incorporated in Belgium.

Additionally, for the four-day week to be possible, employers must trust their employees to compensate for the additional time off with greater output in performance. This is no small task given the potentially deleterious effects this could have on a business. However, the aforementioned studies conducted in various countries along with the continuing developments that will take place in Belgium may be enough to assuage the concerns of some skeptics.

As it stands, the four-day work week seems unlikely in the United States. The five-day work week is culturally ingrained in our society and most employers would not willingly place themselves at a disadvantage to others who operate on the five-day work week. If it took a global pandemic to make many employers realize that remote work was possible, one can only wonder what calamity would be necessary to pull the United States out of the old ways and into the four-day work week.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Not cool.  On its face that violates the Equal Pay Act.  The Equal Pay Act is a federal law that states employees of one sex must be paid the same as employees of the opposite sex for the same job.  Here it is in legalese:

No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . . .

29 U.S.C. § 206(d)(1).  Perhaps your boss thinks that the jobs are not actually equal.  A lot of employers try to make that argument.  These employers point to granular differences in the job to claim they are not equal.  For example, recently, the University of Oregon tried to argue that tenured psychology professors did not perform work under similar conditions that required equal skill, effort, and responsibility because these professors taught different classes, oversaw different doctoral students, and managed different centers with funding from different sources.  Freyd v. Univ. of Oregon, 990 F.3d 1211, 1221 (9th Cir. 2021).  The 9th Circuit rejected that argument, saying all that is required a common core of tasks.  Id. at 1220-21.  If you want more details on this important case, I wrote a blog about it back in April 2021.  See  https://www.texasemploymentlawyer.com/2021/04/freyd-v-university-of-oregon-what-does-equal-work-mean-under-the-equal-pay-act/.  

But less assume that is not what your boss is basing the decision on because the jobs are equal.  If that is the case, then your boss must justify the unequal through one of the four affirmative defenses provided by the EPA.  An affirmative defense is most commonly a legal excuse.  When a party to a lawsuit asserts an affirmative defense, that party is often admitting that it engaged in the conduct alleged, but argues that it was legally justified, permissible, or excused.  IN the Equal Pay Act context, the employer is saying, yes my company pays the sexes differently for the same work, but that’s ok.

So, what are these affirmative defenses that allow unequal pay for the sexes?   

Unequal pay may be permissible if the unequal pay “is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.”  29 U.S.C. § 206(d)(1).  These affirmative defenses are narrowly construed.  

Importantly, whichever affirmative defense is asserted must actually explain the wage gap.  In other words, the existence of one the systems or factors is not enough in and of itself to allow unequal pay.  For example, if a company claims that it uses a seniority system to determine pay, then that seniority system must explain the wage gap between a man and woman performing the same work.  If both have equal seniority or one has more than the other, then their respective pay must reflect that.

Regarding merit systems and systems based on the quantity/quality of production, these systems must be based on predetermined criteria that is communicated to the employees.  It is not enough for an employee to merely be aware that such a system exists.  Numerous cases have held that employees must know the contents of that system, which makes complete sense.  Simply knowing that a merit system or production system exists without knowing what the company considers in determining merit or production is pretty useless and would lead to highly subjective decisions, which are not permitted.  Additionally, these systems must be objectively and systematically administered by the employer.  In other words, the criteria cannot be selectively applied.

Regarding factors other than sex, these must be bona fide factors other than sex that are actually used to make pay decisions.  Here is how the Seventh Circuit put it, “The factor other than sex must also be bona fide. In other words, an employer cannot use a gender-neutral factor to avoid liability unless the factor is used and applied in good faith; it was not meant to provide a convenient escape from liability.”  Fallon v. State of Ill., 882 F.2d 1206, 1211 (7th Cir. 1989).

There is a lot more to each of these affirmative defenses, but the key takeaway is that the affirmative defenses are narrowly construed and must meet certain standards and factors to be valid.  If you believe that you are not receiving equal pay for equal work, you should contact an employment law attorney to discuss your case. 

Julie St. John
Texas Employment Lawyer Julie St. John

A recent New York Times article by Sarah Lyall caught my eye: “A Nation on Hold Wants to Speak With a Manager.” It described how, in a lot of different ways, the seemingly never-ending pandemic has had a significant negative impact on how people treat others. Quite simply, it was about how everyone seems meaner. Well, obviously not everyone, but basically everyone. 

Not only do I agree with the article’s overall observations and analysis, but I couldn’t help but think about how this phenomenon has exasperated working in a profession where people are already mean to each other far too often. Seriously, being a lawyer is never easy, even in non-pandemic times. It often feels like our job is to disagree and fight—even if it’s not, or at least shouldn’t be. And this already takes a toll on our mental health and wellbeing. As early as our first week in law school we are given presentations on how lawyers are more prone to substance abuse, depression, and suicide and provided with resources.*

But now, things seem to have gotten even worse in an already difficult occupation. We should be able to advocate for our client’s and do our jobs to the best of our abilities without being jerks. I know for a fact this is possible because I have seen it from both sides. For example, I recently had to reach out to opposing counsels for references. I immediately thought of several folks—some I have defeated and some I have lost to—whom I have the utmost respect for. Their responses in kind filled my heart with joy. I was proud at that moment to be a member of this profession. But we should always be proud of it. We’ve worked hard for it. And we must uphold the standards that come with it. 

 However, it is difficult at times to be the bigger person. People tend to regress to the lowest common denominator when they feel they not being treated with the respect or professionalism they deserve—that we all deserve. 

But we can change this. We can change this by controlling our own actions. This is truly the only thing we can control, so it should always be our focus. And it should not only be our focus to stop ourselves from being the instigators of bad behavior. It should also remain our focus when the other side engages in bad behavior first. 

As Michelle Obama said, “When they go low, we go high.” These are words to live by every single day. And they are words of wisdom that I attempt to instill in my practice of law. I believe I can zealously advocate for each and every one of my clients while showing everyone involved—opposing counsel, my client, my colleagues—the respect they each deserve. I believe that continuously showing this respect will force them to return the treatment in kind. 

I have made numerous jokes about how apparently, because everything is a holiday nowadays, there is a Love Your Lawyers Day. I believe it’s November 4th this year if anyone wants to get me a gift. But instead of just celebrating your love for lawyers only one day a  year—couldn’t help it, a second joke was necessary—, just find kindness for each other every day. Seriously, we all deserve it. 

I pledge to continue to do everything in my control to be kind in the face of a seeming never-ending pandemic and beyond. I hope you will too. 

* If you need help, please reach out to the someone. The Texas Lawyers’ Assistance Program is a confidential resource available to students and lawyers: https://www.tlaphelps.org/.

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

It’s great when you love your career, job, boss, and coworkers.  But, how do you handle the toxic employment relationship? 

Usually, with at-will employment, the exit is as simple as giving notice, shaking hands and saying goodbye. With at-will employment, employees have the right to end their employment with one company and pursue other career opportunities. Yet, sometimes ending the relationship requires more thought, knowledge, and preparation.  

If you signed an employment agreement, are being asked by your employer to sign a severance, believe you have potential claims against your employer, or are concerned about benefits such as unpaid bonuses or unused paid time off, it is best to speak to an attorney before implementing your exit strategy.  It is better to be informed and know your rights or potential liabilities than to be sorry.

You may ask, “How might I be sorry?”

There are a number of things that can go wrong when employees don’t know their rights or when they don’t fully understand the limitations or legal obligations placed on them by what they may have perceived as an insignificant piece of paper.  

When a company has the job you want – with the great pay and benefits you desire – they have power.  With that power, one should expect that any piece of paper they give you and/or ask you to sign will come with some benefits for the company.  The company wants to protect its interests, employees must protect theirs. 

Employment and severance agreements may contain a number of terms that are beneficial to the employer that employees should understand.  Many employers require that employees protect confidential information, enter into noncompete and non solicitation agreements, or waive their rights to pursue legal claims in court.  

For an employee that wants to start a competing business, they may need to know if there are limitations on when, where, and how they can begin their business upon resignation.  They may also need to understand restrictions on asking coworkers to join them in their new business venture and any restrictions on contacting clients of their employer after they’ve moved on.  A lack of knowledge in this area could result in lawsuits and severe financial consequences.  

Employment agreements may also dictate the manner in which an employee’s disputes with a company are handled.  It is very common for employers to want employees to enter into arbitration agreements.  What this means for an employee is that if there is ever an employment dispute, it won’t be resolved by a jury of the employee’s peers, but instead by an arbitrator.  

Aside from considering the documents signed when beginning one’s employment and what they mean for one’s exit, if an employee has legal claims as a result of a toxic employment environment, an employee should also consider what a voluntary resignation may mean for their potential claims.  Not all employment disputes are the same.  Therefore, an employee should know that there are circumstances under which resignations can be detrimental to legal claims, and this is certainly something the employee should know before tendering their resignation.

Another consideration before resigning is what you may be leaving behind.  Is there an unpaid bonus?  Is there unused paid time off?  Depending on what’s in an employment agreement, employee handbook, or other employee document, resignation could put an unpaid bonus at risk, and the same can be said of unused paid time off.  After resigning, it can be disheartening to learn that your annual bonus will not be paid.  Get answers before you make the move.

Leaving a toxic employment relationship could be as easy as saying goodbye.  However, if you have concerns about documents you signed or are being asked to sign, want to know if you have potential claims and whether resignation will negatively impact them, or want to understand various company policies and how they may relate to your resignation, it is best to speak to an employment attorney before taking action.  Our attorneys are here to help.

Colin Walsh
Texas Employer Lawyer Colin Walsh

It’s dark out there right now.  

In Texas, it is judicial fact that women and people of color have less rights than they do almost anywhere else in the country.  Regarding women, I am obviously talking about the Supreme Court’s ruling allowing the flagrantly unconstitutional 6-week abortion ban to not only go into effect, but remain in effect.  This has been exacerbated by the Fifth Circuit, which just certified a question regarding the law to the Texas Supreme Court, which will only cause more months of delay.  See Whole Woman’s Health v. Jackson, No. 21-50792, (5th Cir. Jan. 17, 2022).  Regarding people of color, I am talking about a lesser publicized case from the Fifth Circuit that the Supreme Court refused to hear, holding that in Texas, Louisiana, and Mississippi racistly interfering in a contract is not actionable.  See Perry v. VHS San Antonio Partners, 990 F.3d 918 (5th Cir. 2021).  To be clear, this case holds that a contractor may tell a subcontractor to fire all of the black people because they are black and there may be no federal cause of action against that racist contractor.  See Id.  Even in Florida, that would not be the case.  See Moore v. Grady Memorial Hospital Corp., 834 F.3d 1168, 1172 (11th Cir. 2016).  

And it doesn’t look like it is going to get better anytime soon.  The Supreme Court is poised to require all of us taxpayers to fund private religious education, no matter what your religious beliefs are or are not.  See “Supreme Court weighs mandating public funds for religious schools in Maine,” Nina Totenberg, NPR, available at

https://www.npr.org/2021/12/08/1061996765/supreme-court-weighs-mandating-public-funds-for-religious-schools-in-maine.  Gerrymandered political maps are about to cement minority rule for the next ten years. See “Texas Republicans send Gov. Abbott Congressional map that protects GOP power, reduces influence of voters of color,” Alexa Ura, Texas Tribune, available at https://www.texastribune.org/2021/10/18/texas-congressional-maps-redistricting/ .  And bribery of public officials is about to become explicitly legal. See “It was a great day in the Supreme Court for anyone who wants to bribe a lawmaker, Ian Millhiser, Vox, available at https://www.vox.com/2022/1/19/22891236/supreme-court-ted-cruz-bribery-fec-loan-repayment-brett-kavanaugh-amy-coney-barrett .  

   So how does a raging civil rights advocate, like I like to think of myself as, keep the faith?  Well, it’s not easy.  But I am constantly reminded of the fact that Atlantis sank and Camelot failed. 

“Well that doesn’t sound hopeful,” you say laughing uneasily, a wild, desperate look creeping into your eyes.  I hear you, but let me explain . . . 

Atlantis, according to Plato, was a utopian civilization that existed over 9,000 years ago.  The Atlanteans lived in concentric islands separated by moats.  These islands contained gold, silver, other precious metals, and exotic wildlife.  The soil was rich, the architecture amazing, and the technology unparalleled.  But it sank.  And no one knows where it is now.

Camelot, according to the bards, was a utopian society that existed in medieval Britain.  It’s king, Arthur Pendragon, created a round table for his knights so that none would sit at its head or be above another.  I love Arthurian myth.  I have probably read and watched at least a dozen variations on the tales.  My favorite version so far is T.H. White’s The Once and Future King.  I just saw The Green Knight starring Dev Patel, which was fantastic, and can’t wait to read the final book of the excellent Camelot Rising series, The Excalibur Curse by Kiersten White.  But Camelot also failed.  And no one knows where it is now.

“I don’t feel  . . . better,” you say, “about today, about now,” carefully choosing your words to not wound me.  Luckily, I’m not done!  

So, look, these stories are complicated.  There are many things going on in them.  There are many ways to read them.  There are many messages and morals and lessons you can take from them.  But here’s my view from 30,000 feet of the overall message of these stories: you must work and fight for what is right and the world you want to live in.  

Atlantis sank because the Atlanteans got greedy, petty, and waged an unprovoked war upon their neighbors.  After they lost that war, violent earthquakes and floods sank them into the sea as punishment from the gods.  

Camelot fell because of infighting and personal squabbles between King Arthur’s knights as well as Arthur’s fear and inability to take responsibility for his actions.  These things led Mordred to be able to defeat and kill Arthur at the battle of Camlann.

The takeaway is that you can’t get complacent, you can’t get consumed and discouraged by setbacks.  You must always strive for what is right and just and good.  You must work to build and maintain the world you want to live in, to make it a better place.  By remembering that Atlantis sank and Camelot failed, you can ensure it doesn’t happen again. 

If you have been discriminated or retaliated against in your job, you should talk to an employment lawyer about your options.  Please call us at 512-271-5527 to schedule an appointment or visit wileywalsh.com to schedule one online.

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

One of the most efficient ways in the discrimination context to show that an employer’s stated reason for termination is false is showing that it has changed its reason for termination. The applicable case law calls these shifting reasons, and it is a powerful tool in your journey to getting a case to trial.

Absent direct evidence of discrimination, as are most cases, employees are left with having to maneuver one of the multiple iterations of the McDonnell Douglas burden-shifting framework. In its most basic form, the McDonnell Douglas burden-shifting framework is stands for the requirement that an employee must first prove a prima facie case, which are the barest elements of a discrimination claim. After that, the employer puts forth a non-discriminatory reason for why it took the adverse action. Finally, the employee must respond by showing that the employer’s reason is false. In this blog I would like to address one of the best methods of satisfying this last prong. Specifically, I would like to delve into using an employer’s multiple stated reasons, or shifting reasons, for termination to satisfy the requirement of pretext.

To illustrate this point, I would like to provide an example. Let’s say that an employee is terminated. At the time he is terminated he is informed of his termination his boss orally informs him that it is because of his excessive late arrivals. Subsequently, he receives a formal letter informing him that he was terminated for excessive late arrivals and several performance issues that were never brought up to his attention. At the EEOC stage, the company informs the EEOC that the employee was terminated because of performance issues and absenteeism. At this point we have three different and distinct reasons for termination. Under Fifth Circuit precedent this would be enough to establish that the employer is lying.

That is because shifting and changing reasons for an adverse employment action allow a jury to find that the stated reason is false. Burrell v. Dr. Pepper/Seven Up Bottling Group, Inc., 482 F.3d 408, 415 (5th Cir. 2007). In Burrell, the employer gave several reasons as to why the employee was not promoted. At first it stated that the plaintiff in that case was not promoted because he lacked “purchasing experience.” Then the employer stated that he was not promoted because he did not have “purchasing experience in the bottling industry.” Finally, the employer stated that the plaintiff was not promoted because the employee did not have “bottling experience.”

The Fifth Circuit in Burrell held that while similar, these reasons were sufficiently different that a jury could find that the employer’s stated reason for failing to promote the plaintiff was false. Specifically, the court held that “[t]his unexplained inconsistency was further evidence from which a jury could infer that Dr. Pepper’s proffered rationale is pretextual.”

Applying the above cited case law to the example I gave; it is clear that a court would be hard pressed to find against an employee with regards to the pretext prong. The reason for this is that Burrell establishes that even if the reasons look similar, the shifting of the reason why someone was the subject of an adverse action allows a reasonable juror to find that the reason is false. And this makes sense because in our everyday life we often hesitate to believe an individual who is unable to keep their story straight or stay consistent.

It has become common place that the most contentious area in the road to a jury trial is the pretext stage. In fact, I am of the opinion that most cases often are won or lost at this stage. This combined with the often times over formalistic lens that courts view the case using the McDonnell Douglas burden-shifting framework makes it so that it is of the utmost importance that you retain an attorney that specializes in employment law. At Wiley Walsh, P.C., we can fight on your behalf with the legal expertise that these types of cases demand. Moreover, given the short statute of limitations that are often found in employment claims, time is of the essence. If you feel like you have been discriminated or retaliated against, feel free to contact us to schedule an appointment with one of our attorneys.