Attorney Eric Dama

Given the technological advancements over the past few decades, more and more employees are expected to be on call – either officially or unofficially – all day, every day. Most often, this occurs when an employee receives a phone call or email after they have left the office for the day. And depending on the sender of the communication, the subject, and the workplace culture, an employee may feel as though they must address the issue although they are technically off the clock.

The question frequently comes up whether an employee must be compensated for this type of work. The answer depends if the employee is exempt or non-exempt. Non-exempt employees must be paid for all the time they work, whereas exempt employees do not. If a non-exempt employee is not paid for their off-the-clock work, they can pursue an FLSA or unpaid wages claim against their employer.

An exempt employee is one who is exempt from the minimum wage and overtime requirements of the Fair Labor Standards Act (FLSA). For an employee to be characterized as exempt, an employer must pay them a salary rather than an hourly wage. The idea being that an exempt employee is compensated for getting a job done, regardless of the time it takes. Typically, exempt positions are reserved for executive, management, and professional employees.

Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate on the basis of religion. Of course, this includes an employer that makes hiring, firing, promotion, or compensation decisions based on a person’s faith. However, Title VII also more broadly protects employees from having the “terms and conditions” of their employment affected because of their religious beliefs. This means that Texas employers should reasonably accommodate employees’ sincerely held religious beliefs or practices if an employee’s beliefs conflict with the employer’s work requirements.

Common accommodations include an employer allowing for an employee to maintain a flexible schedule, allowing employees to swap shifts when necessary, and also potentially allowing for an employee’s reassignment. A reasonable accommodation may also relate to an employer’s dress or grooming policies. For example, by allowing an employee to wear a head covering or allowing employees to maintain facial hair. In addition, an employee’s request not to wear a specific article of clothing, such as pants or a skirt, may also be the basis for a religious accommodation. Only requests that are based on sincerely held religious beliefs will require an accommodation. However, the term “religion” is broadly defined by the Equal Employment Opportunity Commission, and includes strongly held moral and ethical beliefs.

To obtain a religious accommodation, a Texas employee must first notify their employer of their request. Typically, this should be done in writing and should explain that the employee’s request is based on a sincerely held religious belief. In some cases, an employer will need more time to determine what would need to be done to provide the accommodation. This is supposed to be an interactive process between employee and employer, as the employer attempts to determine how it could implement a satisfactory accommodation. An employer must make a reasonable accommodation unless doing so would cause the employer to suffer an undue hardship.

Over the past few decades, government regulators have begun to keep a much closer eye on the conduct of those in charge at large corporations. However, regulators may not be privy to all the inner-workings of a corporation, and given the number of corporations and lack of available resources to ferret out the wrongdoers, corporate misconduct flew under the radar for years. More recently, however, the Securities and Exchange Commission (SEC) started the SEC whistleblower program, which relies on employee whistleblowers to report violations of U.S. securities laws.

Under the SEC whistleblower program, an employee who voluntarily reports information that assists the SEC in recovering amounts of more than $1 million is eligible for a financial award. The amount of the award ranges between 10% to 30% of the monetary sanctions collected by the government. These funds are paid out of a separate fund called the Investor Protection Fund, rather than with company proceeds.

To be eligible for a reward through the SEC Whistleblower program, a reporting employee must be able to show the following:

  • The information provided relates to a violation of U.S. securities law or relates to the bribery of a foreign official;
  • The information was provided voluntarily, and not in response to questioning or an investigation;
  • The information was based on personal knowledge, and not publicly available records; and
  • The information must result in a new investigation or significantly contribute to an existing investigation.

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As we’ve discussed in previous posts, federal discrimination laws prohibit employers from engaging in discriminatory conduct during employment. This also includes the pre-employment interview process. Employers cannot make a hiring decision based on a person’s age, race, religion, sex, national origin, or disability.

Sometimes, employers trying to gather as much information as possible about an applicant will rely on preconceived notions and stereotypes in doing so.

A few of the problematic questions employers routinely ask are:

  • whether an applicant is married, engaged, single, or divorced;
  • whether an applicant has any children and, if so, how old they are;
  • whether an applicant plans on becoming pregnant;
  • what an applicant’s spouse or boyfriend does for a living;
  • whether an applicant attends religious services and, if so, what days; and
  • the origins of an applicant’s last name.

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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.

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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.

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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.

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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.

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.

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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.

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