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.

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

The Omicron variant of Covid-19 has been spreading like wildfire both among the vaccinated and unvaccinated. Contracting the new strain is causing many to have to take time off of work and out of the office (one would hope). Suppose, however, that once you labor through your quarantine period, you return to the office and find that, upon your entrance, several of your close co-workers are shuffling nervously and averting their gaze from yours. You walk through this air of restlessness towards your office, only to find that your belongings have been neatly packaged in the corner of a now-vacant office. Your boss or supervisor then greets you at the door and notifies you that, effective immediately, you are terminated.

The question naturally arises: what rights do I have? Most likely, none at all. Texas is an at-will state, which entails, essentially, that you may be fired for any conceivable reason that is not related to a protected characteristic (e.g., race, sex, sexual orientation, disability, age, etc.). As broad as the Americans with Disabilities Act may be, it does not cover common, temporary illnesses such as a cold, flu, or even Covid-19. Unfortunately, within the State of Texas, your employer is allowed to terminate you for contracting a common illness.

However, some individuals who have contracted Covid-19 have experienced long-lasting side-effects. These side-effects include swelling, shortness of breath, and memory fog (to only name a few). These side-effects have been shown to persist and continue affecting individuals for years. This has caused many in the legal community to question whether the long-lasting effects of Covid-19 should be considered a disability under the ADA.

To be clear, the ADA considers an ailment a disability if this ailment impedes upon the afflicted individual’s daily life activities. For example, having a limp would affect one’s mobility; having a speech impediment would affect one’s communication; and having Crohn’s disease would affect how one functions throughout the day. The long-lasting effects of Covid-19 (i.e., swelling, shortness of breath, brain fog, etc.), could be considered ailments that affect an individual’s daily life activities to the point where they would require accommodations in the workplace.

The Equal Employment Opportunity Commission has yet to issue guidance on the matter, but the long-lasting effects of Covid-19 are becoming an increasingly prevalent issue given the spread of the Omicron variant. It is worth, however, making a clear distinction. If your employer, at the outset of you contracting Covid-19, terminates you for that reason, then it would more than likely not be protected under the law given that the ADA does not typically protect such discrimination. However, if your employer terminates you, not because you contracted Covid-19, but because of one of the long-lasting effects of Covid-19 that you are suffering with, then it could, potentially, be protected by the ADA. The primary reason is that these long-lasting effects will be affecting your daily life activities, such as your mobility, ability to communicate, and even your ability to process information.

Covid-19 and the law have maintained a complicated relationship. This is due, largely in part, to how recently Covid-19 struck the country as well as the law’s sluggish pace to adapt to new situations and circumstances. Thus, Covid-19, or at the very least, its long-lasting effects, fall within an area of the law that is opaque and developing; it falls neatly within one of the law’s various grey areas. Hence, if the reason or suspected reason, for your termination was due to the long-lasting effects of Covid-19, then you may very well want to consult an employment lawyer and thereby potentially influence the development of a new part of the law.

Julie St. John
Texas Employment Lawyer Julie St. John

Thinking about getting pregnant or attempting to get pregnant? Concerned about your employer firing you before you actually get pregnant because you’re trying to get pregnant? Are you protected from discrimination prior to getting pregnant? Texas courts weighed in on this issue for the first time in 2021, and . . . congratulations, it’s good news! 

In South Texas College v. Arriola, a Texas Court of Appeals held that an employee who was attempting to get pregnant was protected under the Texas Commission on Human Rights Act (TCHRA), the state version of Title VII of the Civil Rights Act, which protects individuals from discrimination, harassment, and retaliation based on race, religion, national origin, color, disability, age, and sex. 629 S.W.3d 502 (Tex. App.—Corpus Christi-Edinburg 2021, pet. denied). 

STC attempted to argue that Ms. Arriola was not protected under Texas state law because women who are “only attempting to get pregnant” were not a protected class. Because the Court could find no Texas cases on the issue, it looked to federal cases brought under Title VII. Of the federal cases, it was clear “an overwhelming majority” had concluded that women who were attempting to get pregnant were nonetheless entitled to protection under the law. See, e.g., Griffin v. Sisters of Saint Francis, Inc., 489 F.3d 838, 844 (7th Cir. 2007); Kocak v. Cmty. Health Partners of Ohio, Inc., 400 F.3d 466, 470 (6th Cir. 2005); Walsh v. Nat’l Comput. Sys., Inc., 332 F.3d 1150, 1160 (8th Cir. 2003); Smith v. F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996); Poucher v. Automatic Data Processing, Inc., No. CIV. A. 3:98-CV2669P, 2000 WL 193619, at *4 (N.D. Tex. Feb. 17, 2000). Although, a few courts have disagreed, the Texas court decided to follow the majority and give protections, as it should, to women who are thinking about getting pregnant or attempting to get pregnant. 

In making its decision, the Texas Court of Appeals relied heavily on a federal case out of a district court in Illinois that stated:

The basic theory of the PDA may be simply stated: Only women can become pregnant; stereotypes based on pregnancy and related medical conditions have been a barrier to women’s economic advancement; and classifications based on pregnancy and related medical conditions are never gender-neutral. Discrimination against an employee because she intends to, is trying to, or simply has the potential to become pregnant is therefore illegal discrimination. It makes sense to conclude that the PDA was intended to cover a woman’s intention or potential to become pregnant, because all that conclusion means is that discrimination against persons who intend to or can potentially become pregnant is discrimination against women, which is the kind of truism the PDA wrote into law.

Pacourek v. Inland Steel Co. 858 F. Supp. 1393, 1401 (N.D. Ill. 1994). 

The court in Pacourek did indeed do an excellent job of summarizing why the law should protect all women from pregnancy discrimination, even those who are not pregnant. However, unfortunately, we know from experience that employers don’t always abide by the law. If you have faced discrimination because you are potentially planning to get pregnant or trying to get pregnant, you should consult with an employment attorney right away. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

“Oh, look Elaine, the black and white cookie. I love the black and white. Two races of flavor living side by side in harmony.  It’s a wonderful thing isn’t it?”

Jerry, Seinfeld, The Dinner Party — Season 5, Ep. 13 (1994).

 

In 1994, I would have been 14 years old when this episode of Seinfeld first aired.  There are many lines that I still remember from Seinfeld, but this one stands out for several reasons.  When hearing it for the first time, I thought of racial harmony, inclusion, fairness, and equality.  Later – when watching reruns – I was more cynical with thoughts of, “yeah right, that’s not reality,” “where are the Black actors in this group of friends,” and “that’s just a cookie, nothing more nothing less.” Now, when thinking back to that episode I simply think of Jerry’s line, “cinnamon takes a backseat to no babka…lesser babka, I think not.”  But I’ll come back to that.

Here in 2021, there will be varying views on Colin in Black and White, but in truth, it was a glimpse into the life of growing up Black. Growing up as a Black woman – a Black person – you find that your life is not the same as many of the people around you.  Regardless of what you’re taught or told, regardless of what schools try to keep out of the classroom, brown skin comes with different life lessons.

Watching Colin in Black and White was a reminder of old life lessons, sometimes those experiences leave emotional and/or physical marks that shape us into the people we are today. In brown skin, we live each day hoping those experiences don’t kill us.

Because Kaepernick is biracial some may try to minimize his experiences or marginalize him. However, his experiences were the Black experience.  If not for the color of his skin he would not have endured the looks, comments, suspicions, or degradation that comes with growing up Black in America.

The Black experience plays out differently for us all. Though experiences may be similar, mine were not the same as Colin Kaepernick’s. Both of my parents are Black, and I grew up in a household where everyone was like me. I grew up in a household where both of my parents were able to guide me and teach me the realities of life, some realities harsher than others. Having a support system, having a cheering squad prepares you for what lies ahead in life.

I remember teachers holding me back from opportunities and feeling defeated when a teacher told me I could not test for the middle school gifted and talented program. However, upon entering middle school there was relief when teachers in my regular classes would ask, “Why are you in this class?”  I was quickly moved into my school’s advanced placement courses. I remember my hair getting wet on a school trip – shrinking and curling. This was followed by speculative eyes and questions of “Why does your hair do that?” and “Can I touch it?” I remember hours of dance classes with an instructor preparing me for tryouts and feeling confident, only later for me to have to tell her I didn’t make the cut. I also remember every special dance skill I was later pulled in to perform that could not be performed by those selected above me. I have been followed in stores, while others have shopped without a care in the world.  I also recall being pulled over in the middle of the night by officers. My friends and I were told to exit the vehicle, only to have officers needlessly search my car – no traffic citation was issued. I shed tears for those that didn’t survive this type of encounter and I have disdain for those that don’t acknowledge when race plays a crucial role in disparate treatment.

I’ve been made to feel like an outcast. I’ve been passed over. I’ve been singled out. Clearly every occasion was not related to the color of my skin and I would not dare make such a pronouncement. However, there are clear instances where you examine the treatment you receive or the reception you garner and recognize that the only difference between yourself and others is the color of your skin.

The differences faced based on race, start at an early age and I reflected on my experiences as I watched Colin in Black White.

I applaud Colin Kaepernick in taking a knee and all the others that did. I applaud Colin in Black in White in telling a story that speaks to the true experiences faced by Black people in America. I do not see racism in everything, but to deny that it still exists is recklessness.  To deny racism exists is the same as condoning it.

Like that cinnamon babka that Jerry said was not a lesser babka, the color of my skin does not make me less than. The color of my skin does not make rejection of me acceptable; it does not make disparate treatment appropriate; it does not make one’s discrimination against me or anyone else of color lawful or forgivable.  I take a backseat to no one.

 

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

One of the most common things I hear during consultations is a worker telling me that they “do not have any evidence” of to support their story. They go on to elaborate that they have no documents, emails, or anything tangible to further their claim. While having documentation to support a claim is helpful, it is not the end all be all in a lawsuit. Indeed, a recent Fifth Circuit opinion outlines how a plaintiff’s own affidavit may be sufficient to get a case in front of a jury.

A week does not go by in which I am in a consultation and the potential client goes through all the facts of their case. They hit every possible element in a claim and then some. They bare their story, often with great emotion, only to end it all with a statement that goes along the lines of, “but I do not have any evidence to support any of this.” This is due to the common and nefarious misconception that only hard, tangible, documented evidence can be presented. Sometimes they even make the more distressing statement that makes it seem that they are under the impression that if their employer admitted to breaking the law they cannot win. These statements are incorrect.

On November 10, 2021, Fifth Circuit penned an opinion that goes a long way to establish that a plaintiff’s own words in the form of an affidavit may be sufficient to allow a plaintiff to get their case in front of a jury. In Guzman v. Allstate Assurance Co., the trial court dismissed a plaintiff’s case because in large part the plaintiff’s case relied on self-serving affidavits that were not supported by the record. In overturning this decision, the Fifth Circuit held that an affidavit written by the plaintiff, regardless of if it was self-serving, should not be discounted outright. Specifically, the court held that “affidavits and depositions may create fact issues even if not supported by the rest of the record.” While Guzman was not an employment case, the proposition of law for which it stands can easily be applied in the employment law context.

In fact, in Fracalossi v. Moneygram Pension Plan; Viad Corp.; & Moneygram International, Inc., the Northern District of Texas recently applied Guzman in the employment law context. Fracalossi, is a case that involved an employee’s cause of action against his employer under the Employee Retirement Income Security Act of 1974 (ERISA). In that case, the defendant argued that the court should grant summary judgment in its favor because the employee had failed to create a fact issue as it relates to actual harm. The court refuse to grant summary judgment because part of the calculation came in the form of that employee’s affidavit. Relying on the precedent set forth in Guzman, the court stated that “[t]he Court finds that the part of Fracalossi’s declaration addressing damages meets [the requirements set forth in Guzman] and is sufficiently non-conclusory to create a genuine dispute of material fact on the issue of actual harm.” As stated above, this shows courts’ willingness to expand upon the context in which Guzman found itself.

While it would be a bit premature to argue that Guzman is ushering a new era of how worker’s affidavits will be examined. Yet, it undeniably does provide a powerful tool for workers to bring forth their claims against employers. This is important because many times employees are at an informational disadvantage when compared to their employers. Often, they are shut out of their emails as soon as they are terminated. Many employers go through great lengths to paper that employees’ files with dubious claims and reports.

At the end of the day know that what you experienced at the workplace matters. What you saw and what you felt matters. For far too long have employers instilled this idea that unless there is a piece of paper that outlines exactly what you need you do not have claim. Yet, despite this new trend, much work still needs to be done to overturn this age-old misconception.

At the end of the day, to prevail there will need to be workers who are willing to speak up. Moreover, it will require attorneys that understand the law and are willing to fight for your rights. 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 have been wronged at the workplace. 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.

 

Colin Walsh
Texas Employment Lawyer Colin Walsh

In the classic Thanksgiving film Planes, Trains, and Automobiles, Steve Martin’s character meets Del Griffith, a salesman played by John Candy, at an airport.  In fact, Del is the director of sales, shower curtain ring division for American Light & Fixture.  He works hard at his job and he is good at it.  In one particularly memorable scene, he sells a bunch of shower curtain rings to various people by pitching them as earrings from the likes of Walter Cronkite, Diane Sawyer, Darryl Strawberry, and the “Grand Wizard of China back in the fourth century.”  

Since he spends all of his time outside the office and traveling the country selling shower curtain rings, he certainly must put in a lot of overtime.  Under the Fair Labor Standards, any hours over forty that a covered employee works must be compensated at 1.5 times the regular rate of pay.  Unfortunately, Del does not receive any benefit from the FLSA because he is not a covered employee.  Under the Outside Sales Exemption, Del is exempt from both the FLSA’s minimum wage requirements and overtime pay requirements.

So what is the Outside Sales Exemption?  The Outside Sales Exemption exempts certain kinds of salespeople from the minimum wage and overtime requirements of the FLSA.  In order for an employee to be considered an outside sales employee, the employee’s primary duty is making sales or obtaining orders/contracts from customers away from the employer’s place of business.  The classic example of outside salespeople are the door-to-door salesmen of yore, knocking on your door to sell vacuums, books, knives, and, in Del’s case, shower curtain rings.  It might seem silly to note, but the term “outside salesperson” does not necessarily mean that covers any salespersons working the open air.  For example, a Christmas tree salesperson works outside, but would not be considered an outside salesperson under the FLSA.  The term outside refers to being a way from the employer’s place of business.  That’s why a Christmas tree salesperson would not be an outside salesperson.  The Christmas tree salesperson is selling trees to customers on the Christmas tree lot, which is the employer’s place of business.  Likewise, a salesperson making calls form a call center would not be an outside salesman because that person is making the calls from the employer’s place of business.

While outside sales must be the “primary duty” it does not have to be the only duty.  As defined in the regulations, “primary duty” just means the “principal, main, major, or most important duty that an employee performs.”  29 C.F.R. § 541.700(a).  Moreover, an employee may be exempt even if that employee spends less than 50% of their time performing the primary duty.  According to the regulations, employees who spend more than 50% of their time doing exempt work will generally be exempt, but “nothing . . . requires that exempt employees spend more than 50 percent of their time performing exempt work.”  29 C.F.R. § 541.700(b).  The example the regulations provide is of a manager who directs and supervises employees maybe exempt even if that manager spends most of their time running the cash register, which is non-exempt work.  That is because their most important duty is management.  In the outside sales context, that means that even if a salesperson spends a significant amount of time creating itineraries for travel, filling out reports, updating catalogues, or making deliveries, the employee may still be exempt if their primary duty is selling products away from their employer’s place of business.

The final thing to note about the Outside Sales Exemption is that unlike the other exemptions, there is no salary requirements.  To qualify as exempt under the executive, administrative, or professional exemptions to the FLSA, an employee must generally receive a salary of $684 or more per week.  That is not true for outside sales employees.  There are no minimum salary requirements for such employees.  Luckily, as I stated before, Del is good at his job.  So that shouldn’t be an issue for him.

If you think you are not being properly paid your wages, you should talk to an experienced employment attorney, who can evaluate your case and potentially provide options.  The attorneys at Wiley Walsh, P.C. have experience in FLSA and unpaid wage claims and would be happy to discuss any potential case or issue you might have regarding the FLSA or unpaid wages.  In the meantime, you should definitely check out Planes, Trains, and Automobiles.  It’s great!  

Julie St. John
Texas Employment Lawyer Julie St. John

“[P]hysical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination[.]” 42 U.S.C. § 12101(a)(1). Accordingly, Congress passed, and subsequently amended, the Americans with Disabilities Act (“ADA”) to prevent discrimination based on an individual having a disability, a record of a disability, or being perceived as having a disability. These protections include, but are not limited to, protection from discrimination in employment. 

Unfortunately, despite the fact that laws such as the ADA are in place to protect individuals with disabilities from discrimination, discrimination nonetheless occurs. Just because laws are in place to prevent discrimination, discrimination is not automatically eliminated. Laws are often violated. This is why it is important not only for these laws to be in place, but also for these laws to have robust enforcement mechanisms for those who have been discriminated against to seek justice when the laws are violated.

The ADA allows for individuals who have been discriminated against based on a disability in an employment context to file a lawsuit in court after they have gone to the appropriate government agency to exhaust their administrative remedies. However, sometimes employees who have been subjected to illegal discrimination and/or retaliation in the workplace based on a disability pass away before they get the opportunity to pursue any claims. Such a situation presents unique challenges to an employee’s estate. 

Can the estate pursue a claim under the ADA on the deceased employee’s behalf? 

Two things are clear. One, if a non-federal-sector employee files a charge of discrimination with the EEOC or a federal-sector employee files an EEO complaint, their claims are likely preserved upon death. See Guenther v. Griffin Constr. Co., 846 F.3d 979 (8th Cir. 2017). Two, if a federal-sector employee did not file an EEO complaint, that worker’s claims are likely not preserved upon death. See Wright ex rel. Wright v. United States, 914 F. Supp. 2d 837, 842 (S.D. Miss. 2012) (“However, the court has found no case recognizing the authority of a deceased employee’s representative to initiate an administrative complaint on behalf of the deceased employee.”).

What is not clear is whether the claims of a non-federal-sector employee who has not filed a charge of discrimination with the EEOC are preserved. Relying on Wright, one might attempt to argue that the estate of a non-federal-sector employee does not have standing to purse a claim under the ADA on behalf of the deceased employee. However, there is better guidance from a state law case out of Florida. 

Under Florida state law, a deceased employee’s estate may still purse discrimination and/or retaliation claims even if the employee had not filed a charge of discrimination prior to death. See Cimino v. Am. Airlines, Inc., 183 So. 3d 1242, 1243 (Fla. Dist. Ct. App. 2016) (“As noted in Wright, Title VII provides the exclusive remedy for federal employee discrimination claims. Part of the rationale for dismissing the federal equal employment opportunity (“EEO”) complaint of the widower in Wright was the inability of the decedent to first exhaust administrative remedies with the EEO division of her agency. There is no such requirement for non-federal employees under either Title VII or the FCRA.”) (internal citation omitted).

As Congress intended the ADA provide broad protections for those who are discriminated against on the basis of a disability, logically an individual’s estate should have standing to pursue any claims after death regardless of whether the employee had initiated the process to exhaust any administrative remedies. Denying the estate’s ability to do so would go against public policy. Accordingly, when faced with such a situation, the courts should decide an estate has standing to pursue any claims regardless of when in the process an aggrieved employee’s death occurs. A failure to do so would run contrary to Congress’s intent to provide expansive protections and result in a failure of the system. 

If you have been discriminated against because of a disability, you should consult with an employment lawyer right away to start the process to make sure any claims you may have are protected. However, if you have a loved one who was discriminated against and passed away before he or she could pursue their claims, you may still have the ability to do so on their behalf.