Dallas Employment Lawyer Blog — Published by Dallas, Texas Employment Lawyers

You might be tired of “Exhaustion of Administrative Remedies,” but don’t sleep on it!

June 4, 2021 | Austin Campbell

Austin Campbell

Many employees may be unsure what to do if they discover they have been treated unlawfully by their employer. Going straight into a lawsuit can be a scary step, and is not always the right one. If you thought “there must be some government agency that can investigate and fix what happened,” often you would be right. However, that is not always the case, and sometimes the existence of that agency can complicate things. This article gives a basic overview of the “exhaustion of administrative remedies,” so that if you find yourself in that situation, you might know to avoid some pitfalls in the law and take advantage of opportunities to right how you were wronged.

Not all employment laws are created equal. Some, like the laws that prohibit things like sex, race, or age discrimination, are “administered” by agencies like the Equal Employment Opportunity Commission or the Texas Workforce Commission—Civil Rights Division (for equivalent Texas laws). That means that you can file a complaint with those agencies to be investigated and (ideally) resolved before any lawsuit needs to be filed. Similarly, the Occupational Safety and Health Administration administers OSH Act retaliation claims, the Department of Labor administers unpaid overtime claims, and the National Labor Relations Board administers claims (like for anti-union activities) under the National Labor Relations Act. There are lots of agencies like those.

Just because your employer is not keeping records does not mean “time is an illusion” and they get to steal your wages—you may still be able to prove what you are owed!

May 28, 2021 | Austin Campbell

Austin Campbell

Wage theft—when employers fail to pay their employees the amounts they are legally required to for the work their employees perform—is by some estimates more common than all forms of robbery combined. Ross Eisenbrey, Wage Theft Is a Bigger Problem than Other Theft – But Not Enough Is Done to Protect Workers, Econ. Pol’y Inst. (Apr. 2, 2014), available at http://www.epi.org/publication/wage-theft-bigger-problem-theft-protect [https://perma.cc/E6FY-F992]. A significant part of that is unpaid overtime in violation of the federal Fair Labor Standards Act (“FLSA”).

Given the magnitude of the problem and the limited resources of the U.S. Department of Labor, the burden is often on you as the employee to sue and prove that you are owed overtime pay, as well as how much you are owed. The FLSA requires employers to keep records of employees’ wages and hours, but does not allow an employee to sue employer just for failing to keep proper records. Thus, often—especially in situations where your employer is illegally treating you as a salaried employee to avoid paying you overtime altogether—you can have a hard time even figuring out what you are actually owed.

There’s Nothing Refreshing About “Liquidated Damages”

May 21, 2021 | Austin Campbell

Austin Campbell Increasingly, employers in Texas have been inserting what might be called “liquidated damages” clauses into employment agreements like non-competes or severance agreements. At a basic level, a liquidated damages clause is an agreement that a party to a contract will pay a specific amount if they breach some part of the contract.

There is such thing as a proper liquidated damages clause, and there are situations (especially in commercial contracts) where clauses like that are appropriate. However, when used in the employment context often they can be wildly inappropriate, and may even cross the line into being penalty clauses that you might then have to fight to overturn. Employers may even try to demand that you agree that these damages are reasonable and not a penalty, even when that is not true. The purpose of this article is to give employees a basic idea of the things they should look out for—at least, when it comes to “liquidated damages”—before signing a contract with their employer

Generally, in a lawsuit over breach of a contract the party that breached the agreement does not have to pay any more than the amount of harm they actually caused the other side. Usually the parties would need to fight over exactly what that number would be as part of the lawsuit. But in Texas, if that number would be difficult or impossible to estimate, parties to a contract are allowed to agree to a “reasonable forecast” of those damages, just in case one party does breach the agreement. To put it another way, in situations where it would probably be prohibitively expensive or flat out impossible to put an exact dollar value on how much a party would be harmed by a breach of contract, the parties can negotiate “just compensation” ahead of time. A proper liquidated damages clause should make it so the parties do not need to argue over their actual damages at all, rather than piling on top of actual damages.

Always Read the Fine Print: American Rescue Plan Act Gives Unemployed Texans Free COBRA

May 14, 2021 | Rasha Zeyadeh

Rasha Zeyadeh

Section 9501 of the recently passed American Rescue Plan Act (“ARPA”) fully funds COBRA health insurance plan payments for qualifying individuals between the dates of April 1, 2021 and September 30, 2021. This benefit is funded by the employers who will then receive a tax credit to offset the cost of COBRA coverage. Notably, the benefit is not available to employees who voluntarily quit their job or who were terminated on the basis of “gross misconduct,” and the 18- and 36-month limit to coverage still apply.

Before the world of COVID-19, nearly all employees who separated from their jobs had the option of electing to remain on their employee-sponsored health insurance by enrolling in a COBRA plan. I say “nearly all employee” because COBRA is only available to employee who worked for a company that employs 20 or more employees. However, Texas has passed its own version of COBRA known as “mini-COBRA,” which applies to businesses with fewer than 20 employees and only provides 9 months of coverage.

The American Rescue Plan is Signed: Are you Feeling Rescued?

April 30, 2021 | Rasha Zeyadeh

On March 11, 2021, President Biden Signed the American Rescue Plan Act (“ARPA”) into law. The ARPA extends the unemployment benefits that were available under the March 2020 Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) and the December 2020 Consolidated Appropriations Act, (both of which were set to expire after March 14, 2021) through September 6, 2021.

To reap the benefits of the ARPA, you must meet your state’s eligibility requirements. In the state of Texas, if COVID-19 is the only reason you cannot work, you are considered able to work according to the Texas Workforce Commission (“TWC”). Hence, in order to remain eligible for benefits, you must be able and available to work and search for work as instructed by the TWC. Unless you are exempt, the number of work search activities you must complete and report each week is determined by your county of residence.

However, according to the TWC, each benefits case is evaluated on an individual basis. Because of the COVID-19 pandemic, the TWC has compiled a list of reasons benefits would be granted even if you refuse suitable work. Among those reasons are if you are 65 years or older, and/or have a medical condition, like heart disease, diabetes, cancer, or a weakened immune system, or at a higher risk for getting very sick from COVID-19, and/or if someone in your household is at high risk for contracting COVID-19.

A Quick-ish Answer to “What is a PPP or Prohibited Personnel Practice”

April 23, 2021 | Paige Melendez

Top10Blog-Post Most Federal employees enjoy an entire administrative regime dedicated to vindicating their unique rights. Out of this regime there are three big enforcement mechanisms that come to mind: Equal Employment Opportunity (EEO) offices, the Merit Systems Protection Board (MSPB), and the Office of Special Counsel (OSC). These three agencies are often entangled together, but each of them is dedicated in some way to addressing PPPs or prohibited personnel practices. A PPP is exactly what the name implies: certain practices in a Federal workplace that are unallowed under the law. The law lists out about 14 things which qualify as “prohibited.” It is important to note, however, that not all Federal employees can find relief through reporting these practices. Employees of local or state governments, uniformed military members, people who work in Congress or for the courts, United States Postal Service employees (except in specific situations), and finally employees of the FBI and CIA are not covered. The list of who is not covered is more expansive, than what is listed above, but those are the ones that may be the most relevant to the general body of Federal employees. To get a better idea of what the different PPPs are and how they would function, below are brief illustrations of the main PPPs using Official, an agency official in a supervisory capacity, C a favored employee, and D a non-favored employee.

First, there is a PPP that prohibits discrimination based on protected characteristics under federal law. This PPP tracks Title VII for the most part, but also adds in marital status and political affiliation to race, color, religion, sex, national origin, age, and disability. Discrimination PPPs are handled primarily through a Federal agency’s EEO office, but the Office of Special Counsel may step in if the discrimination is based on marital status or political affiliation. Adversity based on political affiliation is also covered in a different PPP. For example, if Official attempted to influence D to hand out flyers for a specific political candidate or decided not to promote D because she refused to hand out flyers, it would be considered a separate PPP from discrimination based on political affiliation.

There are also four PPPs that have to do with violations of the merit systems that civil service is based off of. Things like considering a recommendation that was made by someone else outside of the agency. For example, if Official heard from Friend that C would be a good fit for the job and hires C based off of what Friend told him and not through his personal assessment – it is considered a PPP. Likewise if Official decided to give D an artificially low rating so that she would not be eligible for promotion, the Official would be considered to be “obstructing competition.” Official would also commit a PPP if he approached D and told her she should not apply for the promotion to remove her from competition because Official knew C was applying for the same job. In that same vein, Official could also not change the requirements for that promotion to give C an unauthorized advantage. Finally, if Official’s daughter were to apply to a position in his agency, Official could not hire her because she’s his daughter. This would also apply if Official called up his friend at another agency and attempted to influence the other agency to hire his daughter.

TEXANS: How are you doing? A bird’s eye view of 2020 and 2021.

March 12, 2021 | Rasha Zeyadeh

rasha-zeyadeh COVID-19, virtual learning, social distancing, unemployment, civil unrest, the election cycle, and the winter apocalypse. What a decade. Right now more than ever, we need to hold tight to the concept of empathy. As we react to our individual challenges, it is important that we acknowledge and understand the challenges faced by others. We do not have to agree with one another. We do not have to embrace the same feelings or share the same perspective. We simply need to be there for each other during a time that requires isolation and physical distancing.

Within a matter of weeks, our world changed dramatically. Millions of children across the United States began their Spring Break with travel plans ahead, only for those plans to be cancelled and Spring Break to be extended well into the summer. Americans went into complete isolation. Nursing homes went on complete lockdown. Celebrations and vacations were cancelled. We have been urged to remain distant and isolated. We must wear a mask or be denied service. We are living in a unique time that presents unique challenges.

Clash of the Titles

March 5, 2021 | Paige Melendez

20201124_104652-203x300 Beginning in January 2020, the state of Texas increased the number of people who are considered “mandatory reporters” under Title IX. The mandatory reporters are tasked with immediately reporting Title IX related incidents like dating violence and stalking when they become aware of it. If a mandatory reporter fails to make this report, they are subject to criminal and employment penalties. When this law went into effect, it was looked at as a great step forward in universities combatting sexual violence on their campuses by tasking more people with reporting duties and having penalties for those who do not. Sexual violence, dating violence, and stalking have always been huge issues on college campuses, and it is only recently that the law has made a stride to try and close out loopholes in university reporting requirements. The flip side is that not reporting or being named in a Title IX complaint can have adverse consequences on a person’s employment. These adverse consequences are where Title IX and Title VII clash, and the fall-out can have damaging effects on both.

At Will Employment: What does it really mean in Texas?

February 26, 2021 | Fadi Yousef

fadi-yousef What does it really mean to be an “at will” employee in Texas? You’ve certainly heard of this term often. In the next few paragraphs, I will talk about what that term really means in the eyes of the law and how it impacts you, and I’ll also discuss the exceptions to at will employment.

The first thing you should know is that Texas is an “at will” employment state. At will employment simply means that your employer can fire you at any time, for any reason, or for no reason at all. That actually includes false, malicious, unfair, or unethical reasons, as long as those reasons aren’t illegal, or in violation of a contract (we’ll discuss below). At the same time, it also means that you, the employee, can quit your job at any time, for any reason, or for no reason at all. But what if your employer required you to give two weeks’ notice before you quit; does that mean you’re not an at will employee? In general, if your employer requires two weeks’ notice before you quit but reserves the right to fire you without notice, then your employment is likely still at will. This means if you quit without notice, you may be violating your employer’s policy, but not any law or contract.

Valentine’s Day at work: Cupid or stupid?

February 12, 2021 | Rasha Zeyadeh

rasha-zeyadeh Sexual harassment in the workplace is not a new phenomenon. It has always been an issue. In light of the #Metoo movement, employees nationwide are more willing to publicly condemn their harassers and hold employers accountable for their inaction. As Valentine’s Day approaches, this blog will highlight various examples of sexual harassment in the workplace, and explore behaviors that, while inappropriate, do not rise to the level of sexual harassment.

Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. EEOC guidelines define sexual harassment as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

• Submission to such conduct is a term or condition of an individual’s employment.
• Submission or rejection of the conduct is a basis for employment decisions.
• Conduct of a sexual nature has the purpose or effect of unreasonably interfering with work performance.
• Conduct of a sexual nature creates an intimidating, hostile, or offensive environment.