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.

The idea of someone taking our hard-earned wages strikes at the core of the average American. After all, we worked for and earned our paychecks. It should therefore come as no surprise that your employer cannot steal any of your wages. But many corporations and companies have become creative. They have found unique and clever ways to shortchange their workers and steal the wages left over. Nowhere is this more prevalent than in the restaurant industry. Restaurants have consistently targeted waiters and tricked them into illegally handing over their tips. And the worst part is, many of those affected do not even realize it. This article will examine common ways through which restaurants shortchange their workers and examine waiters’ rights under the Fair Labor Standards Act (“FLSA”).

The FLSA was passed to ensure that each and every worker receive the minimum wage as well as overtime pay when employees work for more than 40 hours a week. The only exceptions to this law, however, are restaurants. Although restaurants are required to pay their workers the minimum wage, they are allowed by law to take a “tip credit.” The tip credit allows a restaurant to pay its tipped workers $2.13 an hour rather than the standard $7.25 an hour, the idea being that the wages received plus the tips gained would provide waiters with the minimum wage. Nonetheless, restaurants have found illegal ways to try to circumvent the FLSA and shortchange their workers from the tips they are owed. The following are the most common ways through which restaurants shortchange their workers.

Continue Reading Shortchanged: Wage Theft and Your Rights Under the FLSA

On December 22, 2020 the Department of Labor unveiled a final rule that will put into place a large swath of changes that will affect tipped employees across the country. One of the most troubling changes that will take effect is that employers will now be able to claim a tip credit on back of the house staff, which means that employees who are not traditionally and customarily tipped will now be able to participate in tip pools. This means that cooks, janitors and other traditionally non-tipped employees will be able to claim a portion of the tips that front of the house employees receive. Fortunately, this change will not be extended to managerial staff, who will still be unable to participate in the tip pool. At the moment, this new rule change is set to take effect 60 days after December 12, 2020. 

Generally speaking the FLSA mandates that employers must pay their employees a minimum of $7.25 an hour for the work they perform. Among the various exemptions and loopholes that are found within the FLSA is an employer’s ability to claim a “tip credit” on certain tipped employees. When an employer elects to take a tip credit it allows them to pay the selected employees only $2.13 an hour so long as those employees still make a minimum of $7.25 an hour when the tips they have received are taken into consideration. Moreover, an employer is able to pool together all of the tips earned in a night and disperse it among the tipped employees. This is called a “tip pool.”

Continue Reading Department of Labor Issues New Regulations for Tipped Employees

To many people in the workforce, the idea of a mass layoff once seemed unfathomable. You grow so accustomed to your job and to the daily routine it enables that it essentially becomes a part of your life that feels permanently fixed. In the midst of the current pandemic, however, mass layoffs, along with resignations and terminations, have become commonplace. The idea of a mass layoff no longer seems like the boogeyman; to many in the workforce, mass layoffs now feel like a very real possibility. Mass layoffs are scary, unpredictable, and harmful, but they should not be unexpected. This article will examine mass layoffs and workers’ rights under the Worker Adjustment and Retraining Notification Act.

The Worker Adjustment and Retraining Notification Act, or “WARN Act”, as it is aptly called, was designed to protect employees in the event of a plant closing or mass layoff. The WARN Act requires employers to provide 60 calendar-day advance notice to employees subject to plant closings or mass layoffs. Employees entitled to notice under the WARN Act include managers and supervisors along with hourly wage and salaried workers. The purpose of the WARN Act’s notice requirement is to give workers and their families the opportunity to transition to new employment and to adjust to their loss and to even enter into skill training or retraining programs to improve upon one’s marketability. The only catch is that notice of a plant closing or mass layoff is required only when the company has 100 or more employees; in other words, if the company that you work for consists of 99 employees (including managers and supervisors), then the company does not have to give you notice of a mass layoff. 

Continue Reading Expecting the Unexpected: Mass Layoffs and Workers’ Rights Under the WARN Act

“In the end, we will remember not the words of our enemies, but the silence of our friends.” – Martin Luther King, Jr.

Discrimination is real.  Denying systemic racism, doesn’t make it nonexistent.  In 2020, we’ve seen a resurgence of people actively fighting against race discrimination in large numbers.  Police violence against Black Americans reignited a fuse.  Protestors have taken their voices to the streets, have launched social media campaigns, and have organized to fight injustice where it thrives with hopes of real change.  

Racial injustices can permeate every aspect of a person’s life.  It can be four Black, young adults being pulled over by the police when they’ve done nothing wrong, only to have an officer say, “where are you coming from” and “can I search your vehicle.”  It may be realizing you are being followed in a department store.  It may be someone saying, “yeah, I have a problem with that Black teacher.” It can even be seen in the hiring, firing, and promotional practices of employers. 

Continue Reading To Witness or Not to Witness.

Let’s say you have been discriminated against based on your race, but either work for a company with less than 15 employees or are an independent contractor.  You know that neither Title VII nor the Texas Labor Code applies to you.  Is there any other protection?  YES! The answer is 42 U.S.C. §1981.

Let’s say you are an employee of a company with 15 or more people, but that you didn’t hire a lawyer until well after the 300-day statute of limitations for Title VII to assert your race discrimination claim.  Do you have any hope? YES! The answer is 42 U.S.C. §1981.

So, what is 42 U.S.C. § 1981?

42 U.S.C. § 1981 prohibits race discrimination and retaliation in the making and enforcing of contracts. It is meant to provide “broad and sweeping” protection against all race discrimination.  Faraca v. Clements, 506 F.2d 956, 959 (5th Cir. 1975). According to the Supreme Court, the Civil Rights Act of 1866, from which § 1981 is derived, “was designed to prohibit all racial discrimination . . . with respect to the rights enumerated therein.”  Jones v. Alfred H. Mayer Co., 392 U.S. 409, 422-36 (1968).

Continue Reading Section 1981 prohibits race discrimination and retaliation in contracts, including race-based interference in contracts.