Dallas Employment Lawyer Blog

February 15, 2019

Texas Employers Cannot Engage in “Quid Pro Quo” Discrimination/Harassment

The Civil Rights Act of 1964 prohibits employers from discriminating on the basis of sex. Courts have long held that sexual harassment is a form of sex discrimination. Thus, employers who engage in sexual harassment or allow their employees to engage in such behavior without intervening violate Texas and federal anti-discrimination laws.

There are several types of sexual harassment. One of the most commonly seen type of sexual harassment is called “quid pro quo” harassment. Quid pro quo is a Latin term meaning to get something for giving something. In the context of a sex discrimination lawsuit, quid pro quo harassment occurs when a supervisor propositions an employee, typically for sexual favors, in exchange for some employment benefit. For example, a manager who makes an employee’s raise contingent upon the employee going on a date with the manager has engaged in quid pro quo harassment.

Quid pro quo harassment also occurs when an employee suffers some kind of adverse employment outcome for refusing an employer’s sexual advances.

February 6, 2019

The Intersection Between Title VII and the Equal Employment Opportunity Commission’s Rules Regarding Accent Discrimination

by Eric Dama

Those who have immigrated to the United States have played a pivotal role in our nation’s success. Indeed, the goal of encouraging immigrants to assist in growing the United States’ economy was one of the reasons that Congress enacted the Civil Rights Act of 1964, specifically Title VII. Similarly, the Equal Employment Opportunity Commission (EEOC) was enacted as an omnibus bill designed to address discrimination beyond employment, focusing on voting, education, and public accommodations.The purview of Title VII and the EEOC intersect in many ways. Most recently, the EEOC has issued clarification regarding the scope of national origin discrimination when accent discrimination is alleged.

Title VII National Origin Discrimination

Title VII prohibits qualifying employers from discriminating against an individual because of their race, color, religion, sex, or national origin. Discrimination can take many forms, including failure to interview or hire, disparate compensation or benefits, or terminating an employee because of those enumerated characteristics. A Texas national origin discrimination claim can be appropriate in these situations.

February 1, 2019

The National Defense Authorization Act and the Protections It Provides to Texas Contractors and Employees

by Eric Dama

The federal government has certain laws ultimately designed to prevent the misuse or waste of federal funds. Thus, to encourage federal employees to “blow the whistle” on those engaging in misconduct, lawmakers passed the Whistleblower Protection Act (WPA). Under the WPA, government employees who report certain acts of misconduct are protected from an employer’s retaliation.

For decades, the federal government has relied upon non-government private contractors to perform certain government functions. However, the WPA only applies to government employees. Thus, to extend the whistleblower protections of the WPA to private government contractors, Congress included certain protections in the National Defense Authorization Act (NDAA).

As noted above, the NDAA provides protections to private contractors hired by the federal government when they report waste, fraud, or abuse in federal government contracts and grants. The NDAA also covers whistleblowers who are employees of private contractors, as well as subcontractors and anyone else working on a government contract or grant.

January 25, 2019

When Must Texas Employers Offer Light Duty as a Reasonable Accommodation

by Eric Dama

Under the Americans with Disabilities Act (ADA), employers are required to offer employees with disabilities reasonable accommodations that will provide them with the ability to apply for or perform the necessary functions of their positions. Employers will often attempt to shrug off this responsibility by claiming that providing the employee with a reasonable accommodation would cause the company to suffer an undue hardship. However, in order to prove an undue hardship and avoid a Texas disability discrimination claim, the employer must provide evidence showing that the accommodation would result in a significant expense or difficulty.Although employees may request a specific reasonable accommodation, employers may provide their own accommodations. The Equal Employment Opportunity Commission (EEOC) looks at various factors to determine whether the hardship is significant or whether the accommodation is appropriate.

When Is Light Duty Considered a Reasonable Accommodation?

Light duty is a malleable term that is applied differently depending on the employment setting. Broadly, light duty is considered to be a type of temporary or permanent work that is less strenuous than an employee’s normal job duties. Light duty can be applied in both physical and mental-health contexts, and it is relative to the particular position.

January 17, 2019

Are All Texas Employment Contracts Enforceable?

by Eric Dama

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.