Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler
Julie St. John
Texas Employment Lawyer Julie St. John

June 24, 2022 is a day to remember.  Sadly, it is not to be remembered for justice.  Instead, it is to be remembered for its striking blow to women’s rights. On this day, the United States Supreme Court pressed the rewind button on progress. The “rewind button” brings up memories of cassette recorders and VCRs from decades past. That thought seems utterly fitting for the occasion. 

You see, on June 24, 2022, the Supreme Court decided that it wanted to take us back decades – nearly half a century – to January 21, 1973, the day before Roe v. Wade was decided.  The Supreme Court decided that it wanted to take us back to a time where young women died from back alley procedures because there was no safe haven for their choices. The Supreme Court decided that it wanted to take us back to a time where women knowing their pregnancy wasn’t viable, were forced to endure the pain and heartache of being required to carry to term. The Supreme Court decided they wanted to take us back to a place and time where women felt their bodies and life choices were not their own.  

According to former U.S. Supreme Court Chief Justice Charles Evans Hughes, the Supreme Court “is charged with ensuring the American people the promise of equal justice under the law.” On June 24, 2022, the Supreme Court failed to live up to its charge. The Supreme Court has failed the American people. 

For the first time in U.S. history, the Supreme Court has taken away a previously guaranteed constitutional right—the right for a woman to make her own healthcare decisions without government interference . . . the right to abortion. A right that has been guaranteed for almost 50 years has been stripped away. The Supreme Court’s actions in Dobbs v. Jackson showed their complete disregard for the rights of millions of women who would immediately become victims of their states. In fact, in the eye of this storm that is Dobbs v. Jackson, “trigger” laws in nearly a dozen states went into effect. This meant that a woman’s right to choose was taken away the very day Dobbs v. Jackson was decided, with other anti-abortion laws becoming effective within the next 30 days.  

With its decision, the Supreme Court has opened the flood gates for states to ban abortion unless the life of the mother is at risk. According to the Center for Reproductive Rights, this will likely lead to almost half of the states in the U.S. passing the most restrictive laws possible. Clinics in Texas have already stopped providing abortions after Attorney General Ken Paxton issued an advisory that criminal prosecutions for those providing such services would begin immediately. Although many women will still be able to obtain the services they need by traveling to other states, many will not. Those women will be forced to either carry an unwanted pregnancy to term or obtain an illegal abortion which will put their own health at risk. Neither of these options are acceptable. 

 When the draft decision was leaked, it was a sign of times to come. However, actually seeing the final opinion solidifies the fears people had as they watched this Court form under the prior administration. In its decision overruling Roe v. Wade, the Court rejected the value of precedent, it rejected the right to privacy, and it paved the way for future bans. This Supreme Court opinion signaled what rights may remain on the chopping block. Will there be another strike at women’s rights or choices related to reproduction with future bans on the purchase of contraception?  Will there be attacks on same sex relations and marriage? This opinion terrifyingly makes these things seem possible.  

We must do everything in our power to protect and fight for our rights.  We must do everything in our power to fight to win back this right that should not have been taken away. Yet, we must not stop there, as this will not be the end of threats to the rights of the American people. We must speak out against this decision and any other that takes away or threatens our Constitutional rights. We must vote for officials that want to protect all of our fundamental rights on both the state and national levels. We must not accept defeat in this fight or the next that’s sure to come. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When employees look for an employment attorney, they are looking for someone to advise them on the law as it relates to an employment matter. The ultimate goal and hope is for the employee to find and choose an attorney that they trust to counsel them and give them sound advice. Of course, it goes without saying that providing sound advice does not always mean that the lawyer is there to tell the employee what they want to hear. Instead, a lawyer is there tell them what they need to hear. The lawyer is there to assess the situation and provide their take on the pros and cons or possible outcomes, as well as access the viability of claims if any exist. 

Navigating employment relationships can sometimes be very difficult. When things turn sour at work, it can be like a bad marriage. When it comes to work separation, it can be similar to a divorce. After 10, 20, or 30 years of dedication to an employer, it is understandable that an employee can become emotional about their job and career. Feeling betrayed and hurt is not uncommon when it comes to a place where one has spent so many hours. When this happens, it is best to seek the counsel of an experienced employment attorney early – before making any final decisions. However, it is important to remember, as is in any area of the law, whether it be employment, family, or personal injury law, sometimes the news is good, other times the news is not so good. Whatever the news may be, the attorney is not there to sugarcoat things and make false promises. The attorney is there to prepare the person seeking legal advice to make an informed decision once they know how the law applies to their circumstances and understands their options.

As employment attorneys, we are often outraged by the stories that we hear. Sometimes, in these stories, we learn that an employer has violated the rights of an employee and we want to give the employee a plan of action and means of fighting back. Conversely, with at-will employment, some employees find that when an employment issue arises, they have very few rights. In some instances, they have no rights – no laws that protect them from mistreatment. This is of course not to say that the employer’s actions are justified, moral, or right but simply that there is little to no legal recourse for the employer’s unethical behavior. When this happens, we still aim to provide sound advice and put those that seek our counsel in the best possible position to make decisions.  

When you consult with an attorney, their goal is to give you advice based on their experience and knowledge of the law as it relates to your facts. When you hire an attorney, you have hired them to represent you based upon that same experience and knowledge. It is the hope that you have done so with the intention of listening to the advice you have paid for. Though outraged we might be, we must often set aside those emotions to best represent our clients to put them in the best possible position or to help them make the best decisions based upon their circumstances. This is not always an easy job, but it is what is required of us if we are to truly help those in need.

At the end of the day, your employment attorney cannot force you to do anything. However, as stated above, when seeking an employment attorney, it is important to find an attorney whose advice you feel you can trust. This person is going to be someone providing you with valuable guidance in an area of the law in which they regularly practice and/or specialize.  If you’ve hired them, you have asked them to be your advocate and advisor.  It is the hope that you’ve done so with the intent of letting them be the lawyer, while you be the client. At Wiley Wheler we specialize in labor and employment law, and we are well versed in the nuances of the situations that can arise within that realm. If you have concerns regarding your employment or feel like your rights have been violated, feel free to contact us to schedule a consultation. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

The Depp v. Heard trial had been dominating news outlets for the past month. In it, actor Johnny Depp accused actor, and former spouse, Amber Heard of defaming him when she claimed that Depp had abused her over the course of their relationship. Recently, a verdict in the trial had been reached. In this verdict, the jury unanimously found that Heard could not substantiate her claims against Depp and that she knew that her allegations of abuse were false when she published her essay outlining Depp’s abuse in 2018. The jury concluded that Heard acted with actual malice when writing her essay. The result of this case is largely unusual. The fact of the matter is that it is exceedingly difficult to prevail on defamation claims and it is the goal of this article to examine why that is.

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.

The Depp v. Heard, trial, however, operated on a different standard due to the fact that both actors are public figures. In The New York Times Co. v. Sullivan, the Supreme Court held that in order for a public figure to succeed on defamation claims, the public figure plaintiff must demonstrate that the false statements expressed were made with “actual malice.” In Sullivan, the Court specified that actual malice means that the defendant expressed the false statement with “knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, the defendant making the defamatory statements had to know that the statements they were making were false or should have known that they were false.

Suppose, for example, that a plaintiff asserts a defamation claim against a defendant. The plaintiff has to prove to the court that the defendant knew, or should have known, that the statements made were false. The defendant has several avenues through which to contest it. The defendant could show that she was making a statement of an opinion due to the fact that the statement made must be factual. For example, “I think X is a fool” would be considered an opinion even if X has an IQ of 132. On the other hand, if the defendant were to say, “I think Y beats her children,” and this results in Y losing her job, then the plaintiff could very well succeed on a defamation claim given that that the defendant made this statement recklessly and that it resulted in damages to the plaintiff. 

The defendant could also make a showing that, even if her statements were false or factual, she believed them to be true. The defendant could simply claim that the statement was made due to a certain source that she cited or even researched. That could very well be enough to defeat a defamation claim. Alternatively, the false statement could have stemmed from word-of-mouth; perhaps an individual the defendant worked with communicated the statement to the defendant and the defendant believed it.

There are a several means through which one may defeat a defamation claim. Defamation is exceedingly difficult to show because the plaintiff, in a sense, has to show the court the defendant’s state of mind. As such, the Depp v. Heard verdict is an outlier, not the norm. If an individual believes that they have been defamed, then it is preferable to base that belief on research rather than on a blockbuster.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Last week, we discovered that Evan Skinner, our new summer intern, loves comedies, music, politics, and sports.  Also, he plays piano pretty well.  This week ask him about law school and other fun stuff . . . 

  1. 1) Why did you decide to go to law school?

I wanted to go to law school because I felt like it provided a good balance between things I enjoyed doing, like keeping up with politics and public policy, and things that would help me eventually find a stable career. As much as I love politics, it’s not necessarily easy to find a job with solid long-term prospects in that field, especially straight out of college. Law school was an opportunity to continue learning about things I enjoyed learning about while also setting myself up for success in an industry with a lot more long-term stability.

  1. 2) What is your favorite part of law school?

The thing I’ve enjoyed most about UT Law specifically is how high-quality all the instruction is. In undergrad, I had a lot of good professors but also more than a few that were just sort of O.K. At UT Law, every professor I’ve had would have been in my top five undergraduate professors. It’s really excellent and I didn’t expect it to be such a change.

  1. 3) What is your least favorite part of law school?

I expected this going in, and I don’t think anyone would say they especially like it, but the amount of stress law school can put on you is no joke. For as much as I’ve enjoyed my classes and professors, there can also be a lot of pressure, especially at the end of the semester and in exam season. Ultimately, I think I’m going to look back and be glad about that, but it’s not always awesome to experience in the moment.

  1. 4) Why do you want to work for a Plaintiff’s employment litigation firm this summer?

I’m very much about helping people, both in terms of policy preferences and in life in general. I think working to help workers, and helping people who don’t necessarily have a lot of resources or legal training against companies that have both of those things, is a really admirable thing to do. It’s something that makes me feel like I’m doing something to tangibly make people’s lives better.

  1. 5) Who is your favorite Supreme Court Justice, living or dead, and why?

Surprisingly enough, I’ve never really thought about who my favorite justice is. Out of the current Court, I probably like Sonia Sotomayor the most. As far as historical justices, Louis Brandeis, William Brennan, and Thurgood Marshall all did lots of good work and I have a lot of respect for all three of them. 

  1. 6) Who is the law?

I think that everybody has to be the law in some way, because there’s no way to separate the people that enforce the laws from the people who make the laws, and there’s no way to detach the people that make the laws from the people that choose the lawmakers. I think that’s good. Laws are a basic part of every functioning society and every member of that society needs to have some input, even if it’s indirect.

[Editor’s note – We also would have accepted “Judge Dredd” for question 6]

Thanks, Evan, for your insightful answers.  We hope you enjoy working at the firm this summer!

Colin Walsh
Texas Employer Lawyer Colin Walsh

Last week, Evan Skinner started working at our firm as a legal intern for the summer!  He is a rising 2L at the University of Texas School of Law here in sunny Austin, Texas.  So let’s get to know him!

The important stuff first.

1) What are your favorite books, movies, and tv shows?

My favorite book is probably A Prayer for Owen Meany by John Irving.  I don’t really have a reason for that choice, it’s just always stuck with me since the first time I read it in high school. Irving really has a knack for creating memorable characters, and I am always impressed by how Owen Meany manages to tell a coherent story over such a long time period without ever feeling like it’s skipped ahead. I also want to shout out The Ball Is Round by David Goldblatt, which is basically a comprehensive history of soccer around the world and its impact on society and culture; I’m a huge sports fan and politics nerd and The Ball Is Round is really incredible if you’re into both of those things and how they intersect.

As far as movies and TV shows, I like anything that’s funny. I like the classic mid-2000s comedies like Superbad, Dodgeball, and Step Brothers, and out of those I’d have to pick Superbad as my favorite movie. My favorite TV show is Bob’s Burgers, and it’s not close. I don’t think I’ve ever watched an episode of that show without laughing out loud multiple times. The dialogue and voice acting are always top-tier, and it manages to be consistently funny while also staying pretty heartwarming and non-cynical, which I think all of the best sitcoms do.

2) What kind of music do you like and what are your favorite bands?

I like to joke that my music taste is “a million miles wide and an inch deep,” because I listen to a little bit of everything but I’m only an expert on a few artists. I like indie rock, rap, and punk the most as far as genres go, and the catchier a song is the more likely it is that I’ll like it. Out of those genres, some of my favorite artists are Green Day, R.E.M., Figurine, Denzel Curry, and Kanye West. If I had a band, it would probably sound like Teenage Fanclub.

3) Where are you from?

I was born in Oklahoma and spent the first part of my life there before moving to Omaha, Nebraska. A few years later, when I was nine, we moved down to the Arlington, Texas area, which is where I’d say I’m “from.” I lived there until I went to college and I’ve spent longer in the DFW area than anywhere else in my life.

4) What are your hobbies?

In general, I like doing anything that lets me learn something I didn’t know before, whether that’s reading a book, watching a documentary, or even just seeing something cool on YouTube. I follow a lot of podcasts and watch a lot of sports, as well. The most exciting days for me are election days (anywhere in the world) or football Saturdays in the fall.

5) What is your favorite holiday?

At this point, I’d have to say Thanksgiving. I like food and football, and it’s a nice fall holiday that doesn’t extend across months like the Christmas season does nowadays. I do also enjoy July 4th, because I think a lot of the traditions surrounding it (like parades and fireworks) are really fun and don’t come up a lot the rest of the year. We should all have more parades as part of our daily life.

6) Do you have any siblings?

Yes, one younger brother.

7) What is one interesting fact you want people to know about you?

I always struggle with questions like this because they’re so open-ended. I guess I’ll take this opportunity to mention the thing I’m proud of that comes up the least often, which is that I can read music and play the piano pretty well. Although I’m just out of practice enough that maybe putting that out in public isn’t the best idea.

Next week, we ask Evan some law school and law-related questions!

Julie St. John
Texas Employment Lawyer Julie St. John

After a lawsuit is filed and before it makes it to a jury, there are oftentimes various procedural hurdles it needs to clear. Two of the most common in employment law cases are motions to dismiss and motions for summary judgment. Motions to dismiss typically come early on and are far more likely if your (former) employer/the defendant is a government entity. Motions for summary judgment typically come much later, after discovery has closed. 

This blog outlines the standards for each type of motion under federal law. But if you have been pursing your case pro se (i.e. representing yourself) and the other side files either a motion to dismiss or a motion for summary judgment, you should consider consulting with an employment lawyer right away.  

Motion to Dismiss

To defeat a motion to dismiss for failure to state a claim under Rule 12(b)(6), “the plaintiff must plead enough facts to state a claim to relief that is plausible on its face.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (internal marks omitted) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Courts must accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. See Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 420 (5th Cir. 2001) (citing St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n.8 (5th Cir. 2000)). 

“The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (citing Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996)).

Motion for Summary Judgment

Summary judgment is appropriate only where the record contains no genuine dispute as to any material fact, so that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).  The moving party bears the initial burden of showing its entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Only if the moving party meets its burden is the nonmoving party required to respond to show a genuine dispute of material fact. See Fed. R. Civ. P. 56(e)(3). A genuine dispute of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).  

In making its decision, “the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); see also Tolan v. Cotton, 134 S. Ct. 1861, 1863 (2014). “[C]ourts may not resolve genuine disputes of fact in favor of the party seeking summary judgment.” Tolan, 134 S. Ct. at 1866. As long as “reasonable minds could differ as to the import of the evidence,” such that factual disputes remain, the motion for summary judgment must be denied. Anderson, 477 U.S. at 250. 

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos


 While many individuals are familiar with how overtime calculations work, this calculation is often times made more difficult in the case of tipped employees. In this blog, I am to shed some light in some of the most often seen errors that are seen by both employers and employees in calculating overtime rates. 

Most, if not all, people are aware of the requirement imposed by the Fair Labor Standards Act (“FLSA”) that all covered employers must pay their employees a minimum wage of $7.25 for every hour worked. Moreover, most people are familiar with the fact that if you are a tipped employee an employer is able to take what is often referred to as a “tip credit” whereby an employer is allowed to pay an employee as little as $2.13 an hour. This is of course with the assumption that the employee in question is still making at least $7.25 an hour after the total sum of tips they receive are taken into account. 

 The inquiry with tipped employees does become murkier with regards to what is the proper overtime rate. Under the FLSA overtime is paid at a rate of time and a half of an employee’s regular rate, but with tipped employees this calculation often leads to various errors. For example, some employers attempt to calculate their tipped employee’s overtime pay based on their tip credit rate of $2.13 an hour. In other words, some employers claim that a tipped employee’s overtime rate is only $3.20 an hour. This is incorrect. On the other hand, some individuals believe that the true regular rate at which overtime is calculated is whatever their hourly rate with tips included is correct. This means that if on average an employee makes $10 an hour after tips, their overtime rate should be $15 an hour. This is also incorrect.

 The Department of Labor (“DOL”) has issued regulations that the actual regular rate at which a tipped employee’s overtime pay is calculated is actually $7.25. Indeed, under 29 C.F.R. §531.60, any tips received by an employee in excess of the tip credit need not be included in the calculation of the regular rate for overtime purposes. U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5. This means that no matter how many tips an employee receives, the overtime rate owed to them by the employer for hours worked over 40 is still only $10.88. This of course applies only to payments that are considered tips under the FLSA.

 A major, and often overlooked, payment that is not considered a tip are services charges. Service charges are defined as compulsory charges that are paid to the employer and not the employee. Nonetheless, often times the employer provides these payments to its employees. When that occurs the DOL has stated that this amount must be used in calculating the regular rate of an employee for overtime purposes. 

 To illustrate all of this, the DOL has provided the following example:

 Total Straight Time Wages: 

·      18 hours worked as a server × $7.25 per hour ($2.13 cash wage + $5.12 tip credit) = $130.50 

·      3 shifts worked as a bartender × $75.00 per shift = $225.00 

·      $130.50 + $225.00 + $160.00 (service charges)3 = $515.50 (total straight time pay) 

 Regular Rate of Pay Calculation: • 

·      $515.50 (total straight time pay) / 42 (total hours worked) = $12.27 (regular rate of pay) 

 Overtime Pay Due: 

·      $12.27 (regular rate of pay ) × .5 (half-time due for all hours worked over 40) × 2 (overtime hours) = $12.27 (overtime premium due)

 U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5

 As can be seen above, it is not always crystal clear how to go about calculating one’s overtime. This is especially true if you are a tipped employee. That is why it is it is imperative to seek out an attorney that specializes in employment law to assist you if you feel you are not being adequately compensated for your work. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys. 


Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When it comes to employment in the state of Texas, it is governed by the doctrine of at-will employment. This means that for many employment disputes, employees will have no recourse. There are occasions when businesses hire or promote bad employees into supervisory or management positions. There are occasions when supervisors and management fail to enforce or follow company policies. However, it would be impossible for courts to monitor and dictate all of the daily operations of each and every company nor does the law allow it. What the courts are allowed to do is hear and protect the rights that are actually given to employees under various laws when an employer has engaged in unlawful conduct.  What is unfair, unprofessional, or unethical conduct does not always equal unlawful.  

Where the law fails to protect employees, it is important for companies to have human resources departments to enforce policies and to ensure fairness. Where the law fails to protect employees, smart business operations make it essential for companies to have strong leadership in place willing to do the right thing. This is not because the law dictates, because it often does not, but because good business practices, professionalism, ethics, and the desire to retain good and hardworking employees should be motivation enough.  

Yet, what happens to employees when companies don’t make smart business decisions and throw professionalism and ethics out the window?  At-will employment means there may be no law that stops employers from making bad decisions that affect their employees and businesses.  At-will employment may mean that hardworking employees may have no legal claims to pursue if they are wrongfully terminated. Nevertheless, at-will employment also means that hardworking employees have the right to leave when they have endured all they can tolerate.  Employees have the right to take their talents to employers that will value them.

Sometimes it can be difficult for an employee to decide what to do when their working conditions have become untenable. They may have confusing feelings or lingering questions.  It could be a manager that treats them differently and holds them to different or impossible standards. Is this treatment based on some discriminatory reason or is it a situation where the company has made a poor hiring or promotional decision?  An employee may voice a complaint to human resources and feel they are facing retaliation after having made that complaint. Did the employee engage in legally protected conduct or did the employee make a complaint that’s not protected under the law?

When an employee has lingering questions about their treatment at work and is deciding what their next step should be – staying to fight or walking away – they often want to know and understand their rights.  When an employee has questions, our employment attorneys are available for consultation.  

A consultation with an attorney does not ensure that a legal claim follows. However, a consultation with a qualified employment attorney affords an employee an opportunity to discuss their concerns when they are: (1) feeling that something is not right at work and that they are being treated differently for some reason or another; (2) wanting to know how to properly voice their complaints to their employer; (3) when they are concerned about obligations they may have after quitting; or (5) wanting to know if there is a battle to fight with their employer or should they find something better and simply walk away.

Navigating employment law and employee rights can be difficult.  An early consultation may help an employee prepare and protect their rights.  An early consultation may even help an employee before they do something that jeopardizes any legal claims they may have. If the law does not provide protections, a consultation may help an employee make decisions about continuing their employment or taking their very valuable skills elsewhere.  

Colin Walsh
Texas Employer Lawyer Colin Walsh

We’ve taken another case up to the Supreme Court! In Robertson v. Intratek Computer, Inc., a pending petition for certiorari at the Supreme Court, we asked the Court to determine whether a government contractor or grantee may force an employee to arbitrate their whistleblower retaliation claims under 41 U.S.C. § 4712.  Our position is that the statute prohibits enforcement of arbitration agreements for such claims.  And the Executive Branch of the U.S. Government agrees with us!

As a preliminary matter, employment arbitration is a private, generally confidential, and secret judicial process involving a private judge paid who issues a binding decision that usually cannot be appealed to any court.  Studies show this process significantly favors employers.  Further, according to the attorneys general of all 50 states, the District of Columbia, and several U.S. Territories, the confidential nature of arbitration can be especially harmful.  For example, according to that collation, confidential arbitration of sexual harassment claims creates a “culture of silence that protects perpetrators at the cost of the victims.”    H.R. Rep. 117-234, 117th Cong., 2d Sess., 4 (report on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, January 28, 2022).

In our case, the statute at issue prohibits retaliating against  an employee of a government contractor, subcontractor, grantee, or subgrantee for reporting

gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.

41 U.S.C. § 4712(a)(1).  If the employee is retaliated against, the employee must report the retaliation to the Office of the Inspector General for the federal agency involved in the contract or grant.  

Under subsection (c)(2) of that statute, if the OIG does not grant relief or fails to take action within a certain period of time, the employee may file a lawsuit in federal court and request a jury trial.   41 U.S.C. § 4712(c)(2).  Under subsection (c)(7), “[t]he rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.”

We contend that the nonwaiver provision in subsection (c)(7) prohibits enforcement of an arbitration agreement because it would waive the right or remedy of a federal trial.  So far, not a single judge has agreed with us, including a magistrate judge, a district court judge, and three court of appeals judges.  But we are unbowed and unbroken because on April 11, 2022, the Solicitor General filed a brief on behalf of the United States saying that our interpretation is right: “Robertson is correct that Section 4712(c)(7) precludes a waiver of that judicial remedy, and the court of appeals erred in holding otherwise.”

This is an extremely important case because the decision could affect up to 6.1 million people who work for government contractors and grantees.  These employers receive billions if not trillions of dollars of taxpayer dollars.  Whistleblowers are, therefore, essential to exposing the fraud, waste, and abuse that may occur.  The importance of whistleblowers is not mere speculation.  In fact, since 1986, the government has recovered over $70 billion because of whistleblowers under just one statue, the False Claims Act.  See https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.

Given the Solicitor General’s position that the court of appeals erred, we are hopeful that the Supreme Court will vacate the appellate ruling and send it back to that court of appeals for reconsideration in light of the view of the United States.  Our petition is currently set for conference on May 12, 2022, which is when a decision could be made on whether to grant or deny cert.  Watch this space for updates!

To read the briefs filed by all of the parties including the Solicitor General of the United States, visit:


Julie St. John
Texas Employment Lawyer Julie St. John

Grief comes in waves. It is something you can think at one moment you have accepted and at another moment overwhelm you entirely. It is something that is deeply personal and uncontrollable and can leave us feeling lost or alone. It can shock our sense of character and purpose. And just like the loss of a close loved one, the loss of a job is a big deal. For many of us, our job is a big part of our identity and self—especially if we have dedicated a substantial amount of time, energy, and effort to obtaining it and being good at it. It is not something to be taken lightly or diminished.

As an employment lawyer, I work with people every day who have experienced the loss of a job. I have personally seen how such a loss can impact their lives. It is deeply emotional. It can breed anger and resentment. It can be an incredibly difficult thing to accept for many reasons. These feelings are entirely justified no matter the situation. However, this feeling of loss, frustration, and unacceptance can be even more prevalent when it is not just the loss a job, but the loss of a job for an illegal reason. It is one thing if you are fired for actually doing something wrong. It is another thing entirely if you are fired because a protected characteristic (e.g. your race, religion, age, sex, national origin) or if you have been retaliated against for speaking up against illegal harassment or discrimination (i.e. you have engaged in some sort of protected activity expecting that you will not be targeted as a result). 

If you are facing illegal discrimination or retaliation, you should consult with an employment attorney right away. But, in addition to seeking legal counsel, you should never discount the importance of seeking professional help to cope with the emotional toll such a loss has taken as well. Although there is always the possibility of getting monetary compensation for the mental anguish you may experience because of illegal harassment, discrimination, or retaliation, money doesn’t fix things. It can help by taking the burden off of financial stresses that may exacerbate the situation, but it cannot fix the root of the problem. 

For example, think about losing a parent, spouse, or child. Would any amount of money make up for the loss? Would you trade millions of dollars just to have them back? I know I would. So, if you have lost a job, do not overestimate what a financial settlement will get you. It may give you some relief, but it cannot make you whole. In addition to seeking legal counsel, seek selfcare and support. It is only with both that the waves of grief will subside and allow true acceptance to emerge.