Attorney Eric Dama

Employee handbooks typically outline an employer’s expectations, as well as the consequences an employee may expect if they fail to meet the employer’s expectations. However, employee handbooks may also outline other important information, including:

  • an employer’s overtime policy;
  • the benefits offered by the employer;
  • various types of leave available to employees;
  • guidelines for employee performance reviews;
  • the expected process for an employee to resign from their position; and
  • policies for promotion, termination, and transfers.

Employees should be able to rely on the language in the handbook and be confident that, if they avoid the prohibited conduct listed in the handbook, they will not be unfairly disciplined or terminated. Similarly, an employee should be able to rely on the listed benefits and procedures outlined in an employee handbook throughout the course of their employment. However, that is not always the case.

Routinely, Texas employers terminate employees for conduct not listed as prohibited or discouraged in an employee handbook. Similarly, it is not uncommon for an employer to renege on the benefits mentioned in an employee handbook or otherwise not follow the procedures outlined in an employee handbook. When this occurs, an employee may be able to pursue an employment claim against their employer.

Continue reading

In today’s society, more people realize the value in maintaining a manageable work-life balance. And with healthcare costs continually on the rise, now more than ever prospective employees are looking beyond a position’s salary when seeking employment. Because of this, employers realize they must provide a comprehensive and attractive benefits package to recruit and retain quality employees.

A major issue for many employees is an employer’s policy for personal time off (PTO). Paid time off, or personal time off, is generally accrued as an employee works. While employers often allow employees to use PTO for the year before they actually accrue it (to avoid everyone using their PTO at the end of the year) many employees accrue more PTO than they use. This often results in an employee having a surplus of PTO.

When it comes time to leave a job, many employees wonder whether they must be paid out for their remaining unused PTO. Given that many employees carry large balances of PTO, the payout an employee receives upon their termination can be considerable. Employers may try to limit the amount of PTO they pay an employee upon termination; however, this is not always allowed.

As we have noted in previous blog posts, the Fair Labor Standards Act (FLSA) (the “Act”) is a federal law that guarantees Texas employees certain workplace rights. Among those are the right to be paid at or above the federal hourly minimum wage and the right to collect overtime pay for any hours worked over 40 per week. While the FLSA governs most jobs in the United States, some employees are excluded from the Act’s overtime rules. These employees are referred to as “exempt” employees.

Determining whether an employee is exempt or non-exempt under the FLSA can be tricky, and may depend on how much an employee is paid, how they are paid, and what type of work they perform. As a general rule, to be considered exempt, an employee must meet each of the following three criteria:

  • the employee is paid at least $23,600 per year ($455 per week);

In this blog, we often talk about the various types of Texas employment discrimination claim an employee can bring against their employer. For the most part, discrimination claims come up when an employer takes some type of adverse employment action against an employee based on their protected status. Adverse employment actions include firing, failing to promote, transferring, or failing to hire a prospective employee. According to the Equal Employment Opportunity Commission (EEOC), the protected classes are race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, disability, and genetic information.

It is important for Texas employees to realize federal law protects them from discrimination based on their own membership in a protected class as well as based on their association with members of a protected class. This is called associational discrimination. An example of associational discrimination would be an employer deciding not to hire a prospective employee because that person’s spouse suffers from a serious illness, out of fear the prospective employee would require a lot of unexpected sick days to care for their spouse.

While trial and intermediate appellate courts across the country agree associational discrimination is a legitimate claim of discrimination, the United States Supreme Court has not defined the standard. Neither has the Fifth Circuit Court of Appeals. However, the Fifth Circuit has implicitly recognized associational discrimination claims. Additionally, Texas federal courts have explicitly adopted a standard for associational discrimination claims. Unless the Fifth Circuit or the U.S. Supreme Court takes a different position, an employee making an associational discrimination claim must establish:

Social media has become the preferred method for many to air their grievances. It’s not surprising Texas employees are increasingly relying on social media when they organize in support of establishing more favorable work conditions. At the same time, many employees have been fired for posting on social media. This has created uncertainty regarding which social media posts are protected and which may be cited as a valid basis for an employee’s termination.

The National Labor Relations Board (NLRB) is a federally created organization that protects employees’ right to organize. Historically, the NLRB was mostly involved in traditional organized labor movements involving employees’ rights to either join or not join a labor union. However, the NLRB’s protections have expanded over time. Most notably, the NLRB’s protections extend to any activity that is both “protected” and “concerted.”

Texas employees have the right to raise issues involving labor conditions on social media. This includes sharing information and openly discussing matters involving pay, benefits, or any other working conditions. To be protected, a social media post must pertain to protected, concerted activity.

Texas isn’t exactly known as a progressive state, and the state’s discrimination laws are no exception. While some state legislatures have passed broad discrimination laws prohibiting the disparate treatment of employees based on their sexual orientation or gender identity, there is not yet a Texas discrimination law unequivocally protecting individuals based on their sexual orientation or gender identity.

Earlier this week, however, the United States Supreme Court agreed to consider a case that may significantly limit an employer’s ability to treat employees differently based on their sexual orientation or gender identity. Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda involve the question of sexual orientation discrimination, while R.G. & G.R. Harris Funeral Homes v. EEOC concerns discrimination based upon gender identity and sex stereotyping.

The cases present the U.S. Supreme Court with the opportunity to provide LGBTQ employees the protection they have too long been denied. The Court will soon announce when the oral argument will be heard. After the argument, the Court will eventually issue a decision, which will likely be sometime before June of 2020.

In some cases, an employer may ask a returning employee to take a fitness-for-duty examination to ensure that the employee is mentally and physically able to perform the tasks of their job. However, these fitness-for-duty exams can be intrusive and may reveal confidential information about an employee’s disability. Generally speaking, an employer’s ability to request a fitness-for-duty examination depends both on the nature of the injury that necessitated the employee’s leave as well as the specific functions of the employee’s job. When the employee’s underlying condition is one that qualifies as a “disability” under the Americans with Disabilities Act (ADA), employers are limited in their ability to require fitness-for-duty examinations.

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.” If the reason for the employee’s leave was not considered a disability under the ADA, and the employee’s condition is one that could reasonably affect their ability to perform their job, then employers generally will have broad discretion in requiring a fitness-for-duty examination. However, even when an employer is able to require a fitness-for-duty examination, the employer must follow the procedural requirements outlined in 29 CFR § 825.310. This includes providing adequate notice to the employee as well as a list of the “essential functions” of the employee’s position. Of course, a fitness-for-duty exam can only be required as it relates to the specific health condition that caused the employee’s absence.

When an employee suffers from a disability as classified by the ADA that necessitates they take FMLA leave, an employer can only request a fitness-for-duty examination if the examination is related to the employee’s job and is required by business necessity. Typically, this requires that an employer be able to show that the employee’s condition either prevents them from performing the necessary functions of their job or that the employee poses a direct threat to their own safety of the safety of others. Importantly, an employer’s belief must be based on concrete facts, rather than stereotypes or assumptions about an employee’s condition. For example, an employer could not require a fitness-for-duty examination for a returning employee who suffered from debilitating depression based on the belief that all people who suffer from depression present a potential risk in the workplace.

The Fair Labor Standards Act (FLSA) establishes employment standards that impact individuals employed in state, federal, and local government. The FLSA covers minimum wage, overtime pay, and record-keeping requirements.

The FLSA requires non-exempt employees to receive overtime pay if they work over forty hours. The rate must be at 150 percent of the employee’s regular rate of pay. Notably, this overtime rate does not apply to employees who work on holidays or weekends, unless they work over 40 hours. However, there are some exceptions to this.

Retail Exemption under the FLSA

According to federal law and the Equal Employment Opportunity Commission (EEOC), employers cannot discriminate against employees based on their race, age, disability, or other protected characteristics. Employers also cannot retaliate against employees for complaining of discrimination.

An employee who has been discriminated against must first present a prima facie case of discrimination. To fulfill this burden, an employee must establish that they were a member of a protected class, that they were qualified for the job, and that they suffered some kind of adverse employment action based on their class status.

Although these steps may seem straight forward, employees often face difficulties proving that the adverse action was based on their protected class status because employers are frequently able to conceal their true discriminatory motives. In many cases, employers will obscure their motives behind neutral reasons such as “business interests” or an employee’s performance. In these cases, direct evidence of discrimination is often very difficult to obtain. However, employees can still succeed in a Texas employment discrimination lawsuit even if their employer cites a nondiscriminatory reason for its actions.

The Texas Workforce Commission (TWC) administers Texas unemployment compensation laws. Under Texas employment law, employees must meet specific employment qualifications to be eligible for unemployment compensation. If the TWC denies unemployment compensation, a Texas employment lawyer can assist with an appeal.

According to the TWC, when an employee has left their employment through no fault of their own, they may apply for unemployment compensation. An application can be filed online, in-person, or by calling the state hotline. Texas maintains a “work search” registry and individuals who have applied for unemployment compensation must sign up with this registry. They must also submit weekly claims showing they are attempting to find a job in their related field.

To establish a claim for unemployment compensation, the person must first show they are unemployed through no fault of their own. Some common scenarios that qualify include layoffs, resigning for good cause, or a reduction in work hours or wages. Of course, this reduction must not be related to misconduct.

Contact Information