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

Don’t Move the Goalpost

September 16, 2021 | Deontae Wherry

Dallas Employment Lawyer Deontae Wherry

As a young athlete, I remember the phrase, “Don’t move the goalpost.”

The phrase is often used in sports to describe changing the criteria, or goal, while the game is still in progress. Outside of the sports arena, the phrase is commonly used as a metaphor when the goal is changed after someone has begun an act or process in an attempt to reach said goal. It may be perceived that a person is placed at an advantage or disadvantage when the goal is changed. Now as a lawyer, sometimes I find myself saying, “Don’t move the goalpost.”

Vaccine Gate: President Biden’s sweeping vaccine mandate could impact nearly 100 million Americans.

September 10, 2021 | Rasha Zeyadeh

Dallas Employment Lawyer Rasha Zeyadeh

Rasha Zeyadeh writes about Biden’s vaccine mandate for large employers in NewsBreak:

“President Biden’s new sweeping vaccine mandate could impact more than 100 million Americans. Federal employees have 75 days to get the Covid-19 vaccine or face termination. Private employers with 100 or more employees must require employees to either get vaccine or to submit to weekly testing. Private employers who do not comply with the mandate could face hefty fines for each violation. Disability and Religious exemptions are the only way around Biden’s mandate.”

When it doesn’t pay to be the boss: the Fair Labor Standards Act’s “Manager Rule”

September 9, 2021 | Austin Campbell

Texas Employment Lawyer Austin Campbell

Summary: This article gives a brief overview of the problems that the “manager rule” can cause high-level employees trying to raise concerns about pay issues, as well as the limits of that rule.

Categories: At-will; Wrongful termination; Retaliation Claims; Fair Pay; Wage and Hour; Tipped Employees

Everything’s Bigger in Texas and the laws are no exception: 666 new laws took effect in Texas on September 1, 2021, including a nearly absolute ban on abortion

September 2, 2021 | Rasha Zeyadeh

Dallas Employment Lawyer Rasha Zeyadeh

Well folks, everything is bigger in Texas and our laws and penalties are certainly no exception. Despite the efforts of Texas Democrats to block a voting restriction bill, that bill and 665 additional bills were passed, many of which took effect on September 1, 2021. Here are some of the major new laws that took effect on Wednesday:

“Heartbeat” abortion ban.

Employers are using AI in hiring practices. What could go wrong?

July 23, 2021 | Fadi Yousef

Dallas Employment Lawyer Fadi Yousef

In recent years, Artificial Intelligence (AI) has invaded virtually every industry, from technology on your phone, to cameras at your city’s traffic lights, to drones used by the military. Employment and hiring practices are not exceptions.

AI systems are created by humans and then learn on their own by analyzing data. Over time, an AI system is supposed to improve its efficiency and results. In the employment context, AI is used in most steps of the hiring process, including advertising for the job, scanning resumes and job applications, selecting applicants for interviews, and even analyzing applicants’ facial expressions and behavior during recorded interviews.

Federal Pandemic Unemployment Assistance Programs Ending: What does that mean for Texans?

June 25, 2021 | Rasha Zeyadeh

Rasha Zeyadeh

In an unsurprising turn of events, the State of Texas is ending its participation in the federal pandemic unemployment benefit programs early. Jobless Texans will lose access to federal unemployment aid, including a $300 per week supplemental benefit effective June 26, 2021, three months prior to the federal expiration of the programs. More than a million Texans will be impacted when the State stops receiving unemployment benefits under the American Rescue Plan Act (ARPA). The final benefit week that the Texas Workforce Commission (TWC) will pay federal pandemic unemployment benefits under the ARPA is the benefit week ending June 26, 2021.

This decision will end the Pandemic Unemployment Assistance (PUA) program for those who traditionally do not qualify for regular state benefits, such as self-employed and independent contractors, or exhausted all other benefits; Pandemic Emergency Unemployment Compensation Program (PEUC) that extends regular state benefits; and Federal Pandemic Unemployment Compensation Program (FPUC), which provides an additional $300 weekly benefit payment. These programs were created with the CARES Act and were recently extended under the ARPA. However, the caveat is they require the governor’s approval. In other words, if the governor of your state rejects these benefits, you are unable to access them. To no surprise, following pressure from business groups, Governor Greg Abbott declared that Texas will no longer receive any federal pandemic-related unemployment benefits effective June 26, 2021.

The (Harmful) Myth of the Perfect Plaintiff

June 18, 2021 | Paige Melendez

Dallas Employment Lawyer Paige Melendez

A common misconception in employment law is that to be a plaintiff you must have been or are a model employee. This myth prevents many potential plaintiffs from pursuing action against their employers. My aim in this article is to address this misconception and hopefully dispel it.

In its simplest form, employment law boils down to a three-step process: 1) there is discrimination or retaliation, 2) this discrimination or retaliation is because of a protected characteristic or protected activity and 3) an adverse action was taken against the employee as a result. Within this framework there are little details and deviations that cannot be ignored. However, in its simplicity it also showcases how the law does not expect perfection.

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.