After more than a year since the Covid-19 pandemic struck, many of us are finding that as we return to work, things are slightly off from what they once were. Several employers are requiring facemasks, social distancing, and heightened sanitation, to name just a few. And all for good cause as well. Employers want their employees returning to work, but presumably want to prevent the spread of the virus as well. In light of this, several employers are now requiring that their employees receive the vaccination. Employers are approaching vaccination requirements by several means, the most common being the consequential approach (i.e., unvaccinated employees will suffer unpaid leave, suspension, termination, etc.) and the incentivization approach (i.e., vaccinated employees do not need to wear masks or social distance). These new requirements all raise an important question: can your employer require you to get a vaccine? The short answer: Yes, they certainly may.

At first glance, this issue can be quite unsettling. How can it be just for employers to dictate your medical decisions? However, employers have a significant amount of discretion in setting up the workplace environment. This is largely due to the fact that Texas is an at-will state. In other words, under Texas law, your employer has plenty of leeway in making workplace policy. For example, should your employer decide that, starting next week, everyone in the office is required to wear pink dress-shirts with electric blue ties, then you better show up on Monday wearing a pink dress shirt and an electric blue tie. Otherwise, your employer will have grounds to terminate you. As absurd as this sounds, this pink-shirt policy is completely valid under Texas law. Similarly, employers have discretion to require that employees receive vaccinations, particularly the Covid-19 vaccine. 

We should, however, dispel a popular rumor underlying vaccination requirements. This rumor being that employers cannot require the vaccine because it is not “FDA approved.” Legally, this simply does not matter. The FDA authorized the use of these vaccines, therefore employers are allowed to require it. The fact that the vaccine has not been FDA approved is irrelevant (to those skeptical of this claim, it should be noted that Pfizer did apply for full FDA approval roughly a month ago).

Furthermore, the Equal Employment Opportunity Commission (“EEOC”) released guidance this previous week asserting that companies can require employees to be vaccinated. The EEOC further posited that companies may offer incentives to workers as long as they are not coercive. The EEOC, however, did not elaborate on what would constitute a “coercive” incentive. The only caveat to the EEOC’s guidance is that the employer may require the vaccination so long as they are in accordance with the reasonable accommodations provision of the Americans with Disabilities Act. In other words, your employer cannot make you receive a vaccination if it would in some way be detrimental to your health. For example, suppose you suffer from a serious auto-immune disease and your doctor recommends, for the sake of your health, that you do not get the vaccine. In this instance, you should notify your employer of your ailment, provide them with the necessary paperwork, and request that they accommodate your disability so that you do not need to obtain the vaccine and jeopardize your health. Again, the burden is on you to show your employer that the vaccine is detrimental to your health.

This news should not come as a surprise as this would not be the first time vaccinations are mandated. In fact, several establishments typically require vaccinations. For example, public and private universities in Texas typically require students to show records that they have received their meningitis shots prior to registering for classes. As counter-intuitive as it may seem to some, refusing a vaccination, outside of valid medical grounds, is not protected activity. In other words, you will not be protected by the law should you refuse.

For those concerned about the possibility that their employer may require them to get the vaccine, there is not too much cause to worry. It has been found that a significant majority of companies in the United States are not even considering requiring the vaccine. Chances are, you most likely will not be required by your employer to receive the vaccine. For health purposes, however, you may want to consider the option nonetheless. We are living in the new normal, and these circumstances demand that we contain the spread of the virus. So what happens when your employer requires you to receive the vaccine? You either bite the bullet and get it or risk a fight that is all but lost. 

Colin Walsh
Colin Walsh

If a person or company breaches a contract they have, that person or company can be sued immediately in court.  If someone gets in a car wreck, in theory, a lawsuit could happen the next day.  Ditto if you don’t get paid minimum wage or overtime.  But with employment discrimination and retaliation, as with many whistleblower statutes, a lawsuit cannot happen until after administrative remedies have been exhausted.  So what does that mean?

Basically, exhaustion of administrative remedies means having to report the discrimination, retaliation or whistleblower retaliation to a certain agency, department, or authority.  For example, if you were discriminated against by your employer in Texas because of you race, age, gender, disability, religion, national origin, or color, you must first report it to either the Equal Employment Opportunity Commission (EEOC), the Texas Workforce Commission (TWC), or a Fair Employment Practices Agency (FEPA).  These agencies then have a statutorily required amount of time to investigate the claim before the agency issues a right to sue.  It is this right to sue or entitlement to that right to sue that allows a person to take the discrimination claim to federal or state court.  The exact same process must occur for retaliation claims involving retaliation for opposing discrimination based on race, age, gender, disability, religion, national origin, or color.  But after you receive your right to sue or entitlement to a right to sue, your administrative remedies have been exhausted.*  

The deadlines for filing with the EEOC, TWC or FEPA are extremely short as deadlines go.  To preserve federal law claims, the charge must be filed within 300 days of the adverse action.  To preserve state law claims, the charge must be filed within 180 days of the adverse action.  Moreover, Texas state law employment discrimination/retaliation claims have a second statute of limitations that must be met.  State law employment discrimination claims must be brought within two years of the filing of the charge of discrimination regardless of whether a right to sue has been issued.  These deadlines are even shorter for federal employees.

Whistleblower claims have myriad different agencies, departments, or individuals that must be reported to in order to begin exhausting administrative remedies.  Moreover, the deadlines for such reporting are all over the place ranging from 30 days to 2 years.

I hear what you are thinking: what happens if I don’t exhaust my administrative remedies?  Well, in most situations that means your case will get kicked out without ever reaching the merits, which is a major bummer.  

Is there any hope if I didn’t exhaust my remedies? Yes!  But it is super risky.  Recently, the U.S. Supreme Court held that exhaustion of administrative remedies for purposes of federal employment discrimination laws are not jurisdictional. Fort Bend County, Tex. v. Davis, 139 S. Ct. 1843, 1850, 204 L. Ed. 2d 116 (2019).  That means that a defendant must affirmatively plead and prove that you did not exhaust administrative remedies before your case can be kicked out on that basis.  In most cases, defendants will plead the affirmative defense of a “failure-to-exhaust” just in case.  So, it is unlikely that most plaintiffs can take advantage of this fact, but it does happen.

This leads to two takeaways.  First, between reporting to the right agencies, departments, or persons and doing so within the proper timeframe things can get complicated.  Second, if you suspect unlawful discrimination or retaliation, you should act quickly.  A lawyer can help you through this process and make sure that by the time you have exhausted your administrative remedies you are in the best position to file suit.  

*There’s that phrase again: “entitlement to a right to sue.”  That’s weirdly phrased, you think.  You’re right.  You are so smart to notice that.  It’s phrased that way because of a quirk in Texas law.  Under Chapter 21 of the Texas Labor Code, courts have determined that neither the actual right to sue nor even the request for a right to sue is necessary to exhaust state administrative remedies.  Instead, all that is required is that 180 days pass since the charge was filed.  Then on the 181st day, you can file your lawsuit without tasking any other action because administrative remedies have been exhausted. See City of Houston v. Fletcher, 63 S.W.3d 920, 923 (Tex. App.-Houston [14th Dist.] 2002, no pet.); see also Rice v. Russell-Stanley, L.P., 131 S.W.3d 510, 513-14 (Tex. App.-Waco 2004, pet. denied).  That’s kinda fun, right?  Not a lot of people, including not a lot of employment lawyers, know that, but now you are one of the few who does! 

Rob Wiley
Rob Wiley is a Texas employment lawyer.

Recently I was asked, “Why is it that servers are bagging up online orders for Uber, DoorDash, etc. and only getting paid $2.13 per hour to do so?” It certainly doesn’t seem very fair, but is it illegal? Like most things in law, the answer is maybe. This is an example of what happens when old rules about restaurants collide with modern developments.

A restaurant can break the law if waiters aren’t paid $7.25 for all hours worked in a workweek.  Waiters are entitled to minimum wages just like everyone else. But a restaurant can use tips to supplement the $2.13 to meet the $7.25 requirement. However, under the law, this math is done “per workweek.”  Here’s the math: take the total amount paid in a week (wages and tips) and divide that by the total number of hours worked.  If that number is less than $7.25, the employer is breaking the law. For example, Susan worked 32 hours, was paid $68.16 by the restaurant and got $160 in tips. That’s $228.16 total divided by 32, which comes to $7.13. That’s less than minimum wage for the week. Seems small, right, but the damages for this kind of violation could be thousands of dollars for Susan, depending on how long she worked for the restaurant.

A restaurant can break the law if it misclassifies a bagger as a waiter. If all you’re doing is bagging up food, you’re not a waiter anymore. While waiters can be paid $2.13 plus tips, a bagger would be entitled to $7.25 directly from the restaurant. If bagging is your primary job duty – instead of waiting tables – then the restaurant is breaking the law. In fact, if you’re being paid $2.13 plus tips and you’re only a bagger, the restaurant is breaking the law regardless of how much you get paid in tips.

A restaurant can break the law if it makes waiters tip-out to full time baggers.  If you are a waiter and you have to tip out to baggers, that’s illegal too! Baggers are noncustomer-facing employees, and therefore restaurants are not entitled to use tips to satisfy the minimum wage requirement if someone is a bagger. Workers who just bag food have no business taking tips from waiters, the restaurant must pay them directly for their work. Remember, non-waiters like cooks, janitors, dishwasher, managers, and baggers have no right to your tips – that’s wage theft.

You are entitled to tips from delivery drivers and pick up customers.  If delivery drivers or pickup customers provide tips for the restaurant, these tips must be shared with waiters bagging food. Although it seems like an uncommon practice, there are a number of forums on the internet that discuss tip-outs by drivers to restaurants.  These tips would follow the general rule for tips: those tips belong to the waiter. Similarly, if a customer who picks up something ordered on DoorDash and leaves a tip, that tip goes to the waiter. Restaurants are known to steal tips, don’t let this happen to you.

The person asking the question has a good point.  It should be illegal to make waiters do non-tipped work. Restaurants exploit waiters by making them set up and break down restaurants, roll silverware in napkins, refill condiments, and other duties for which they aren’t tipped during downtimes. All of this work decreases the amount of time spent getting tips, and means waiters are doing work for $2.13 per hour – slave wages. Under current law, it’s not the hour that counts, it’s the total pay per workweek.

 

Kalandra Wheeler
Kalandra Wheeler

In litigation, the American Rule means that in a legal dispute, both parties are responsible for their own attorneys’ fees.  No matter who the victor, each party pays their own way.  For two large companies with sufficient funds to litigate a matter, this rule may not be very harsh.  

But, what does this rule mean to employees in the context of employment disputes?   

In employment disputes, the American Rule may be particularly unfair for an employee who has little in the way of financial resources to pursue a claim or mount a defense against a large company with deep pockets.  Accordingly, under the American Rule, many employers might walk away with no consequences for an injustice against an employee.   

Fortunately, the American Rule may be superseded by statutes and contracts.  There are many laws that protect employees from the type of injustice that could arise from the American Rule. Most statutes that apply to employment disputes provide for the recovery of attorneys’ fees if the plaintiff wins at court.   

But what does the American Rule mean if it is found in an employment agreement?  

When negotiating or entering into an employment agreement, typically one side has greater bargaining power.  The employer has a job the employee wants.  Sure, some will argue that the employee has the option of not accepting a job based on the terms offered. However, in a tight job market, employees may find themselves with only two options: (1) take the job with not so favorable terms or (2) reject the job and remain unemployed while another person takes the position.  Often, it is rare to find a shortage of available and skilled workers. Conversely, there may be a shortage of the right job opportunities.  So, while workers may theoretically have the right to walk away, realistically, financial constraints and obligations may leave them with no real option.  

When entering into an employment contract, there are many rights that an employee may give up.  Accordingly, employees should make sure they understand all of the terms they are agreeing to.  Employees may find themselves giving up the right to leave their place of employment to work for a competitor due to a non-complete clause.  They may give up the right to a trial by jury because of an arbitration clause.  They may even give up their right to pursue legal action against their employer due to financial reasons.  What does this mean?  How does an employee give up the right to pursue legal actions?

If entering into an employment agreement that contains terms memorializing the American Rule, an employee may need to consider whether they can actually afford the cost of an attorney should the employer breach the agreement.  

It may cost tens of thousands or even hundreds of thousands of dollars to litigate an entire case.  When employment statutes provide for the recovery of attorneys’ fees, the employee and their attorney know that if successful, they can recover these litigation fees and costs from the employer.  However, when parties have contracted away their right to recover attorneys’ fees in an employment dispute, the employee may be faced with deciding whether they can afford to pursue their claims against the employer knowing that a successful outcome may not include recovering the fees and costs of going the distance.  If the damages sustained by the employee become relatively minimal after hiring an attorney, or even worse, less than what it would cost to hire an attorney, the employee may be more inclined to walk away.  

In its application, the American Rule in an employment agreement may be fundamentally unfair by making it impossible for the employee in the inferior financial position to later protect their rights if needed.  This means the employer who came in with greater bargaining power has won.  

If you are faced with a job opportunity and have questions or concerns over the terms of an employment agreement, you should consult with an employment attorney to know and understand your rights BEFORE signing.

Under the Equal Pay Act, an employer must pay both men and women equally if they perform equal work.  That raises the question of what equal work means.  The statute itself helps with this question a little bit.  The text of the statute states that work is considered equal if the performance of both jobs requires “equal skill, effort, and responsibility” in addition to both jobs being “performed under similar working conditions.”  But still, what does that actually mean in the real world?

Freyd v. University of Oregon, a recent 9th Circuit case involving a University Professor, addresses that question head on.  In that case, Professor Freyd, a female, was one of fourteen full professors in the Psychology Department at the University of Oregon.  She has been working at the University since 1987.  In 2014, Professor Freyd discovered that she was making between $14,000 and $42,000 less than four of her male colleagues in the same department.  Additionally, in Spring 2016, the Psychology Department did a mandatory annual self-study, which revealed that the average difference in salary between male and female professors was $25,000 in favor of the male professors.  The study concluded that this pay difference was due to retention bonuses paid to male professors far more than female professors.  In March 2017, Professor Freyd sued under the Equal Pay Act.  

The University of Oregon defended the case, in part, by arguing that Professor Freyd did not perform equal work to the other male professors she argued were paid more than her.  Therefore, according to the University of Oregon, the Equal Pay Act did not apply.  So, what were these differences?  Well, all of the professors had different individual responsibilities, ran different programs and received different forms of funding:

[T]he district court arrived at its conclusion on this issue by contrasting the individual responsibilities of Freyd, Mayr, Hall, Fisher, and Allen, including the separate laboratories or projects they supervised. See, e.g., Freyd, 384 F. Supp. 3d at 1291 (analyzing Hall’s work at CoDaC); id. at 1292 (assessing Fisher’s responsibilities managing federal grants); id. at 1293 (commenting on Allen’s position as the director of the Center for Digital Mental Health).

Freyd v. Univ. of Oregon, — F.3d —, No. 19-35428, 2021 WL 958217 at *7 (9th Cir. March 15, 2021).  In other words, because Professor Freyd did not found and run the exact same centers or organizations and did not receive money from the same sources, the jobs were different.  

Can such granular differences, as a matter of law, really render the jobs of two full psychology professors different?

No.  

The 9th Circuit Court of Appeals rejected that argument from the University of Oregon and reversed the district court who had ruled in favor of the University.  The 9th Circuit said that the individual segments of a job were not the proper focus when assessing whether jobs were equal under the Equal Pay Act.  Instead, the Court held that it was the overall job that mattered and whether or not a jury could find that the two jobs had a common core of tasks.  It is worth quoting what the Court said at length:

A reasonable jury could find that Freyd, Fisher, Allen, and Hall share the same “overall job.”8 As full professors in the Psychology Department, Freyd and those three comparators all conduct research, teach classes, advise students, and “serve actively on departmental, college, and university committees and in other roles in service to the institution.” They also “contribute to the University’s goals regarding equity and inclusion” by participating in relevant associations and organizations. Although Freyd and her comparators all perform each of these functions, it is also true that they do not teach the same courses, or supervise the same doctoral students, or manage the same centers. In this respect, they are not identical. But we are unable as a matter of law to pronounce their responsibilities so unique that they cannot be compared for purposes of the Equal Pay Act.

Freyd, 2021 WL 958217, at *7.  This is an important decision from the 9th Circuit because it puts to rest this idea that small differences in a job or that high-level professional or academic jobs are not subject to the EPA.

If you believe that you are not paid the same as someone of the opposite sex, you should contact an employment law attorney to discuss your case.

After nearly a year of darkness, there is finally a light. We are all on the verge of receiving the Covid-19 vaccine and finally (and responsibly) breaking out of our year-long quarantine. But, what if the worst happens? What if, as you wait for your approaching vaccine appointment, you feel a tingle in your throat; you lose your sense of smell and/or taste; you start to develop a fever; and you realize that, chances are, you have come down with Covid. At this point, along with informing your family and friends, you must inform your employer as well. That is at least two weeks of your life that you will have to spend in isolation, without work. Although the pandemic may be coming to an end, that does not necessarily mean that you are out of luck. The Families First Coronavirus Care Act (“FFRCA”) still has some life in it and may prevent you from missing out on your bills.

The FFRCA was first enacted by Congress in April of 2020 to combat the economic impacts of Covid-19. If your employer has fewer than 500 employees, then they must allow you to take emergency paid sick leave as well as paid family medical leave. Generally, if you are a full-time employee, you may take up to 80 hours of emergency paid sick leave, while a part-time employee may take up to the amount of hours they typically work within a two-week period. You may use the paid sick leave if you are quarantined, if your doctor advises it, or if you have Covid-19 symptoms and are waiting for a diagnosis. Your pay must be at your regular rate, up to a maximum of $511 per day or $5,110 total. Additionally, you may also use emergency paid sick leave if you are caring for an individual under quarantine or if you must care for your child because their school or place of care has been closed due to Covid. In this instance, your employer must pay you at least 2/3 of your regular rate of pay or up to a maximum of $200 per day. In either instance, your employer cannot require you to find a replacement worker to cover your shift. Furthermore, your employer cannot require you to deduct other paid vacation, paid personal leave, or paid sick leave prior to taking your emergency paid sick leave.

Continue Reading The Beginning of the End: The Current Status of the Families First Coronavirus Care Act and Your Rights Under It

In order to make a viable retaliation claim, a plaintiff must generally have evidence of each element of a what is called a prima facie case.  The phrase prima facie simply means “on first impression.”  In the employment law context, a prima facie case means the basic elements of a claim that, if true, give rise to an inference of discrimination or retaliation.  So for a retaliation claim, a plaintiff must usually show the following elements (1) that the plaintiff engaged in protected activity, (2) that the plaintiff suffered a materially adverse action, and (3) that a causal link exists between the protected activity and the adverse action.  If facts establish each of those elements, then under the law, an inference of retaliation arises, which the defendant must then rebut by producing a legitimate, non-retaliatory reason for the adverse action.  The purpose of this post is to briefly discuss what is necessary to show that third all-important causal link element under Fifth Circuit law.

The first thing that needs to be made clear is what level of causation is necessary to show the causal link.  The causal link standard is very low.  According to the Fifth Circuit, all a plaintiff must show to establish a prima facie causal link is that the protected activity and the adverse action are “not wholly unrelated.”  See Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001).  So how do you do that?

Continue Reading How do you show a causal link between an adverse action and protected activity in retaliation claims?

Hospital workers and employees of other patient care facilities have some of the most difficult jobs out there. The enormous amount of stress, pressure, and difficulty in performing these vital jobs has only been made worse this past year by the global pandemic that has swept across this nation. Given the huge amount of responsibility and the sheer importance of the jobs carried out by hospital workers, it is now more important than ever that COVID-19 safety procedures be followed. This is only possible if workers are allowed to freely report violations of COVID-19 safety procedures. Luckily, Texas law agrees. In this article I will discuss the very basics of the Texas Health and Safety Code and how it may be able to help you create a safer working environment. 

Under the Texas Health and Safety Code, employees of hospitals, mental health facilities, and treatment facilities are protected from retaliation by their employers if they make a report of a violation of law, which includes a violation of the code itself, a rule adopted by the code, or a rule of another agency. Moreover, if a time gap of less than 60 days is between when the report is made and an adverse action, which can be a termination, suspension, or a demotion, takes place, the law states that there is a rebuttable presumption that the adverse action took place because of the report.

Continue Reading The Texas Health and Safety Code: An Often Forgotten Tool in Helping Texas Workers

Black History Month is a time to remember sacrifices and a time to celebrate advancements and achievements that paved the way for others. Certainly, the education and celebration of Black Americans should not be confined to one month. However, the month of February offers an opportunity to commemorate the past and look toward the future.  

When looking to the past, there is no denying that the United States was a country built without wages, a country built on slave labor.  Africans were ripped from their homes, brought to America, then sold and bought to work for nothing.  

There was no ownership in what they built.  There was no reaping benefits of what they sowed. There was merely endless labor for no wages, no rewards.  Everything they did and made was for the profit and benefit of others – monetized by others to build a nation.

In this day and age, no one in the U.S. could imagine a scenario where they would work without pay and be chained and whipped into submission.

Continue Reading Black History Month – Celebrating the Path

In 2019, the attorneys at Wiley Walsh, P.C. acted as lead counsel in two federal jury trials and one arbitration.  With help by attorneys from Wiley Wheeler, P.C. on the jury trials and help by attorneys from Rob Wiley, P.C., our clients prevailed in all three proceedings.  We also co-counseled with the EEOC in a case that resulted in a cutting-edge consent decree against a major airline involving online sexual harassment.  

In 2020, despite a pandemic, shelter-at-home-orders, and the closing of the courts to in person proceedings, we did even better.  Although, there were no trials, our appellate docket was very successful.  

And it started right away.  First, on January 7, the Administrative Review Board reversed summary judgment against one of our clients asserting retaliation under the Surface Transportation Assistance Act.  We alleged that our client was retaliated against by a trucking company for reporting safety issues.  The Administrative Review Board held that our client was entitled to a full hearing on the merits.  That hearing is currently scheduled for April 2021.

Continue Reading 2020 was a very good year for our clients and Wiley Walsh, P.C.