Dallas Employment Lawyer Blog

January 17, 2019

Are All Texas Employment Contracts Enforceable?

When an employee begins work for a new employer, it is likely the employee will be asked to sign an employment agreement. A Texas employment contract acts as a guide to inform both the employee and employer of the other’s rights and obligations. Typically, an employment contract will include the terms of employment and the expectations of each party, as well as the available remedies if either party breaches the contract.

If an employee does not critically examine his or her agreement until after a problem arises, the employee may find themselves in a position where they are bound by what seems to be an unfair contract. For example, it may be that an employee discovers they are required to submit their claim through the arbitration process rather than pursue a claim in a court of law. Thus, the question often arises as to whether a Texas employment contract is enforceable.

Generally, Texas employment contracts are enforceable so long as they comply with the rules of contract formation. Simply stated, this means that a contract must be based on a mutuality of consent, involve the exchange of mutual consideration, and cannot be based on illegal activity. In addition, a contract is only valid if the parties have the mental and legal capacity to enter into the contract. However, even a contract that was validly formed can be deemed unenforceable by a court if the contract is unfair or one-sided.

January 10, 2019

What Is First Amendment Retaliation and How Can an Employee Bring a Claim of Retaliation?

by Eric Dama

The First Amendment of the United States Constitution protects citizens’ right to free speech, assembly, and religion, among other things. However, not only does the First Amendment require people to be able to freely express themselves without fear of criminal repercussions, it also prohibits the government from taking other actions against them.

The First Amendment applies to all government actors, including public employers. In the context of Texas employment law, the First Amendment protects employees who express themselves in a manner that may be frowned upon by their employers. The idea behind retaliation claims is that the First Amendment would have little effect if people were afraid to exercise their rights due to the potential that they could be terminated or demoted.

There are three elements to a First Amendment retaliation claim. First, the activity or speech the employee engaged in must be protected under the First Amendment. This means comments or actions that are obscene, meant to incite violence or defame another will not likely be protected; however, most other speech is protected under the First Amendment.

January 3, 2019

Texas Paternity Leave: What Is Required of Employers and What Isn’t?

by Eric Dama

Having a child, especially your first, is an exciting time but also one that presents seemingly endless questions and challenges. One of the most common concerns for all new parents is how to juggle their careers with the new responsibilities of being a parent to a newborn child. Inevitably, parents will have to figure out who will stay home with the baby, for how long, and what impact this will have on the family’s finances.

Over the past few decades, the traditional fixed gender roles of parents have progressed. This welcome change has recognized both a mother’s valuable role outside the home as a breadwinner, as well as a father’s role at home with the children. Along with this shift, lawmakers are beginning to address a father’s need or desire to stay home with his newborn baby and also to take care of the mother .

Texas, unfortunately, is somewhat behind the curve as it pertains to paid paternity leave. In fact, only a few states currently offer paid paternity leave. Of course, this does not stop an employer from offering paid paternity leave on their own. And if an employer chooses to make paid paternity leave available for some employees, it must be provided in a non-discriminate manner without regard to an employee’s age, race, or religion. Unpaid paternity leave is a different matter and is available to many Texas fathers under the federal government’s Family and Medical Leave Act (FMLA).

December 21, 2018

Texas Whistleblowers Are Protected from Employer Retaliation

by Eric Dama

Employees of organizations are privy to all sorts of information that is not available to the public. Thus, it is not uncommon for an employee to discover that their employer is defrauding the government. When an employee discovers their employer is engaging in fraud, they can blow the whistle on their employer’s illegal conduct by filing a Texas qui tam lawsuit.

A qui tam lawsuit is essentially a whistleblower claim. The term qui tam is short for the Latin term, “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which roughly translates to “he who brings the action for the king as well as himself.” The idea behind a qui tam lawsuit is to incentivize those with knowledge that an organization is defrauding the government to come forward.

An employee who has knowledge of an employer’s fraud can file a civil lawsuit under the False Claims Act seeking to recover compensation for the employer’s fraud on behalf of the government. Once a qui tam lawsuit is filed, it is kept under seal while the Justice Department investigates the claim. During this period, the subject is not made aware they are under investigation.

December 13, 2018

Employee or Independent Contractor: What’s the Difference and How Do You Know?

by Eric Dama

Traditionally, a company would arrange to have most of the services needed to run the business performed in-house, meaning necessary services would be provided by employees of the company. However, over the past several decades, the use of independent contractors has skyrocketed. Thus, while independent contractors were historically only found in specific fields, such as construction, photography, and consulting, more industries are hiring independent contractors, including technology companies, law offices, marketing firms, and even medical offices.

As a general definition, an independent contractor is someone who performs work for a company but is not an employee of the company. The definition of an independent contractor can depend on the state in which the company operates. However, in general, the focus of the inquiry is on the amount of control the company retains over the work product and individual performing the work. The more control an employer exercises in how the work is completed, the more likely the worker will be considered an employee. In Texas, the Department of Workforce Services uses a twenty-point comparative approach to determine whether a worker is an employee or an independent contractor. The IRS uses a somewhat similar approach, called the “control test,” which focuses primarily on the amount of control the company retains over the assigned work.

It is essential for a worker to understand his or her relationship with a company and what rights you have. Just because a company labels you as an independent contractor does not make it so; the ultimate determination will be left to the courts.

December 5, 2018

What Is the NLRB and How Does It Affect Texas Employees?

by Eric Dama

Most Texas employees have heard of the National Labor Review Board, or NLRB as it’s more commonly referred to. However, surprisingly few know what the NLRB is or how important the agency is to employees. Very generally, the NLRB protects the rights of employees to organize in pursuit of better wages or conditions. In pursuit of this goal, the NLRB fulfills many roles.

The NLRB is an independent federal agency formed in 1935 with the passage of the National Labor Relations Act (NLRA), which was enacted to “protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.” The NLRB consists of a five-member board, a general counsel, and dozens of judges in addition to a large support staff spread across its central Washington, D.C. office and 26 smaller regional offices. The primary purpose of the NLRB is to enforce the NLRA.

How Does the NLRB Help Employees?

The NLRB is primarily concerned with protecting the rights of employees to organize. Importantly, the NLRB does not only protect unionized employees, but it safeguards any group of employees that bands together seeking to improve their working conditions or wages. Thus, one of the primary roles of the NLRB is to investigate claims of unfair labor practices that are made by employees to any of the 26 regional offices.

November 28, 2018

Are Arbitration Clauses in Texas Employment Contracts Enforceable?

by Eric Dama

When an employee is hired, in many, if not most instances, he or she is required to sign some form of employment agreement. These contracts outline the duties and expectations of both the employer and the employee. Frequently, Texas employment contracts include an arbitration clause, which is an agreement between the parties that any dispute arising from the employment relationship will be resolved out of the court system by an independent arbitrator.

For the most part, Texas employment arbitration agreements favor the more sophisticated party. For one, the costs of defending a case in arbitration is lower than a traditional Texas employment case in the court system. Additionally, depending on the terms of the arbitration agreement, certain rules of evidence may not apply. Moreover, an arbitrator’s conclusion is generally final and thus not appealable.

Like other contractual agreements, arbitration agreements can be enforceable if they are voluntarily entered into by both parties, are not overly broad in their scope, and do not provide an unfair benefit to one party. Thus, just because an employee signed an employment contract that contains an arbitration clause does not necessarily mean that the clause will be enforceable. At the same time, an arbitration agreement can be enforced even if the employee does not sign the agreement, particularly if they continue to work knowing that there is an arbitration policy.

November 23, 2018

U.S. Supreme Court Holds Age Discrimination in Employment Act Applies to All Government Employers, Regardless of Size

by Eric Dama

Recently, the United States Supreme Court issued an opinion that will have a significant impact in federal age discrimination cases against government employers. In the case Mount Lemmon Fire District v. Guido, the Court held the Age Discrimination in Employment Act (ADEA) applies to government employers of all sizes.

The ADEA

When the ADEA was passed in 1967, it added age to the list of characteristics that could not be used by an employer as a basis for an adverse employment decision. Under section 630(b), the ADEA defines the term employer as “a person engaged in an industry affecting commerce who has twenty or more employees.” However, the statute also states that an employer “also means … a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State.”

The Facts of the Case

According to the Court’s opinion, the plaintiffs were two men, aged 46 and 54, who were terminated from their positions by the defendant fire department when the fire department began facing budgetary concerns. The fire department was a political subdivision of the State of Arizona. At the time they were fired, the employees were the oldest two firefighters in the department.

November 16, 2018

Employers Cannot Discriminate Based on Past, Current, or Future Military Service

by Eric Dama

Texas is home to a large number of the country’s veterans. In fact, it is estimated there are over 1.6 million veterans in Texas, putting Texas behind only California as the country’s most veteran-populated state. As a result, veterans make up a sizable portion of the Texas workforce.

Unfortunately, veterans, like many other groups, are still facing issues of discrimination in the workplace. However, under the Uniformed Services Employment and Reemployment Rights Act (USERRA), public and private employers are prohibited from discriminating against an employee based on an employee’s past, present, or future military service.

Unlike other types of workplace discrimination, such as discrimination based on an employee’s race, color, national origin, sex, gender, or religion, discrimination against veterans is not included in the Civil Rights Act of 1964. Instead, veterans are protected by USERRA, which provides comprehensive protection to veterans. The Act protects those who are currently serving in, or previously served in the Army, Marine Corps, Navy, Army National Guard, Coast Guard, Air Force, Air National Guard. Additionally, the Act protects those whose service was both voluntary and involuntary.

November 9, 2018

Are Texas Employers Required to Provide Paid Vacation and Sick Leave?

by Eric Dama

For many Texas employees, monetary pay is only a part of the overall compensation package offered by employers. For employees who have children or care for a sick family member, the paid- and unpaid-leave benefits provided by many employers are just as important as one’s salary or wages. Unfortunately, Texas employers are not required under any state or federal law to provide paid-leave benefits to employees, except under certain circumstances.

As a general rule, a Texas employer can decide whether to offer benefits to its employees. There are times, however, where an employer is required to provide certain benefits to its employees. One example is where an employer’s written policy provides benefits to employees, but the employer denies a qualifying employee access to these benefits. The Texas Payday Law states that an agreement to provide paid or unpaid leave is an enforceable term of the wage agreement. Thus, an employer who may not be required by law to offer benefits becomes obligated to provide them if there is a written policy offering benefits to qualifying employees.