Celebrating 20 years of representing Dallas employees, including Rasha Zeyadeh, Deontae Wherry, Fadi Yousef, Clara Mann*, Kalandra Wheeler, Jennie Buckingham*, Austin Campbell, Julie St. John, Colin Walsh, and Jairo Castellanos. *Indicates non-lawyer staff.

deontae-wherryThe restaurant industry is known for stealing hard-earned tips from its employees. This practice has been going on for years, yet it continues to be a paramount issue in the industry. As a restaurant employee, you may have asked yourself the following question because you have seen it done time and time again: Can my manager take my tip? Am I obligated to pay for a walked tab? Do I have to share my tip with cooks? The answer to all of these questions is likely no.

Tips are the primary source of income for many employees in the restaurant industry. Thus, tipped employees heavily depend on these tips in order to live and provide for their families. Understanding the value of tips, both federal and state laws have been established to protect the wages for working employees.

In Texas, tipped employees are those who customarily and regularly received more than $20 per month in tips. These employees often include waiters/waitresses and bartenders. Generally speaking, cooks, dishwashers, and maintenance personnel are not considered tipped employees. Regardless if an employee receives tips, an employer must ensure that employees are paid the $7.25 minimum wage.

fadi-yousefLikely yes. The Consolidated Omnibus Budget Reconciliation Act (COBRA) requires employers (or their plan administrators) to notify qualified employees of their entitlement to the continuation of the same health coverage that they would have otherwise lost due to specific qualifying events, like a job loss. Failure to do so may expose the employer to statutory penalties of up to $110 per day, reimbursement of medical bills incurred by the employee, and the employee’s attorneys’ fees and costs.

COBRA requires temporary continuation coverage (usually 18 months) to be offered to covered employees, their spouses, former spouses, and dependent children (qualified beneficiaries) when group health coverage would otherwise be lost due to certain specific qualifying events. The two qualifying events that affect employees are (1) termination of employment for reasons other than gross misconduct, and (2) reduction in work hours.

To be entitled to elect COBRA continuation coverage, you must have been enrolled in a group health plan that your employer offered, and the plan must be covered by COBRA. A plan is generally covered if it is maintained by a private employer with 20 or more employees, or by state or local governments. As stated earlier, there must also be a qualifying event that causes you to lose your health coverage (e.g., job loss or reduction in work hours).

austin-campbellThe Family and Medical Leave Act gives eligible employees the right to up to 12 weeks of protected, unpaid leave during any 12-month period. Probably the most important part of FMLA leave is the “protected” aspect—the right, when your leave ends, to be restored to your old job or an equivalent position. Unfortunately, that is not always as straightforward as it sounds, and many employees have been surprised by what was waiting for them at the end of their FMLA leave. An employer that does not return you to work as required by law may be liable for interfering in your FMLA rights.

This article looks at what that “return to work” requirement involves, what your rights as an employee are when it comes to returning from FMLA leave, and some things you might be able to do to protect those rights.

If you are entitled to FMLA leave, your employer has to return you to work at the end of that leave*. But there are some proactive steps you can take to protect that right. An employer may not be required to return you to work if you overstay your leave. Because of that, to play it safe an employee should contact their employer before their leave ends if they have not heard from their employer. First, you can make it clear you plan to return at the end of your leave. Second, you can ask about the details of your return: things like your schedule and what your job will look like when you come back. And of course, you should actually report to work promptly after your leave ends.

rasha-zeyadehThe outbreak of COVID-19 has caused unprecedented changes to the lives of individuals across Texas and across the globe. The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”), expands unemployment benefit assistance to workers who are eligible under state and federal law before COVID-19 as well as extending benefits to workers who were not eligible for unemployment benefits assistance prior to COVID-19, including self-employed individuals, independent contractors, and gig workers.

There are three eligibility requirements to collect unemployment benefits in Texas: (1) your past earnings must meet a certain minimum threshold; (2) you must be unemployed through no fault of your own (i.e. laid off, reduction in force, terminated for a reason unrelated to misconduct, or you had a good reason to quit.); and (3) you are eligible to work. If you meet the eligibility requirements, under state law, you will received benefits for up to a maximum of 26 weeks.

The CARES Act, however, provides three enhancements to Texas’ existing unemployment insurance benefits. First, workers who were eligible for unemployment benefits prior to COVID-19 are now eligible to receive state-level benefits for a maximum of 39 weeks versus 26 weeks. Second, workers who are ineligible for regular unemployment insurance benefits, such as part-time workers, independent contractors, gig workers, and self-employed individuals can now receive unemployment benefits for up to 39 weeks through Pandemic Unemployment Assistance (”PUA”) equal to $600 per week through July 31, 2020. Third, Federal Pandemic Unemployment Compensation (“FPUC”) provides an additional $600 per week in unemployment benefits to individuals who qualify for regular state-level benefits, PEUC, or PUA. These benefits are available until July 31, 2020. You do not have to submit an additional application to receive FPUC. It is automatically disbursed to you.

deontae-wherryEarned Paid Sick Leave

In 2019, the City of Dallas joined our other Texas cities when it passed the Earned Paid Sick Leave Ordinance. This ordinance requires employers to provide up to 64 hours of paid sick leave. While courts have restricted the enforcement of similar ordinances around the state, beginning April 1, 2020, the City of Dallas will begin enforcing this ordinance to ensure that employers are providing paid sick leave to employees. It is our hope that courts do not eventually restrict the City of Dallas from enforcing this ordinance to protect employees.

Who is protected under Dallas’ Earned Paid Sick Leave Ordinance?

fadi-yousefCan my employer tell me not to discuss my salary with coworkers?

The answer to this question is no. Federal labor laws prohibit employers from restraining, interfering with, or coercing employees who collectively participate in activities related to the terms and conditions of their employment. Those Terms and conditions cover a broad range of topics, like employees discussing wages, hourly rates, salaries, bonuses, commissions, and any other form of payment. For that reason, an employer cannot tell its employees not to discuss their pay amongst themselves. Otherwise, that would be a violation of the National Labor Relations Act (NLRA). And it does not matter if the employer has a union. Both unionized and non-unionized employees are protected.

Are all employers and employees covered?

austin-campbellTo some people, workplace retaliation just means their boss is taking revenge against them for something that they did—after all, that is often what people mean by “retaliation” in everyday life. Regardless of how moral that kind of retaliation is, not all workplace retaliation is the same in the eyes of the law. That is, something your employer does might well be retaliation as people generally understand it, without being illegal in the State of Texas.

The purpose of this article is to help shed some light on that critical difference, because when something crosses the line into being illegal retaliation, you as an employee may have many more options for pushing back against it or stopping it. I will focus on two major requirements of most anti-retaliation laws—”protected activity” and “material adversity.”

First, illegal retaliation requires that what your employer did to you was because of some “protected activity” you took part in. Many different laws define different things that are protected, but not everything is protected.

rasha-zeyadehSexual harassment can happen to anyone regardless of gender, gender identity, or sexual orientation. Sexual harassment in the workplace has always been an issue. However, in the wake of the #Metoo movement sparked by the Harvey Weinstein scandal, more and more victims of workplace sexual harassment are now speaking up about workplace harassment and inequality that they’ve endured for far too long.

In order to combat the rising number of sexual harassment cases reported in the workplace, most employers have implemented policies prohibiting sexual harassment in the workplace and procedures for reporting sexual harassment. For example, most employers expect you to report the sexual harassment to HR, a supervisor, or maybe even some ethics hotline. However, if you’ve experienced sexual harassment in the workplace, reporting it can be an overwhelming task. In fact, many people at work, including the harasser, may discourage you from speaking up or from filing any sort of complaint. You may also fear retaliation from your employer. The reality is that while employers have these policies in place, they are not actually enforcing them or protecting the individuals they are designed to protect. Still, however, there are several ways you can fight back even if the corporate route fails you.

First, you should make an effort to clearly document any and all incidents of sexual harassment, including any interactions you’ve had with the harasser. Oftentimes this means saving text messages, emails, voicemails, and documenting the dates on which each encounter occurred. As a plaintiff’s lawyer, the first thing I ask my clients is whether they have documented any conversations or encounters they’ve had with the harasser. I understand, however, that it is not always possible to document all encounters with the harasser and many times the harassment is verbal and not in writing.

Employees can face severe psychological and financial harm when their employer unexpectedly terminates them or lays them off. The Worker Adjustment and Retraining Notification Act (WARN Act) is a legislative attempt to mitigate the widespread negative consequences of unexpected termination and dislocation. The WARN Act requires specific employers to provide their employees with notice before a mass layoff or plant closing. Texas employers that violate WARN provisions may be liable to any affected employee.

The WARN Act typically applies to public, quasi-public, non-profit, and private for-profit employers that employ at least 100 full-time workers. Covered employees include supervisory, managerial, salaried, and hourly workers. However, business partners, striking workers, and temporary facility employees are not covered and are not entitled to notice.

The Act requires employers to give notice when (1) a plant is closing, (2) there is a mass layoff, or (3) over 500 employees are laid off at a single location. The Act also applies in situations in which an employee does not lose their job, but the employee experiences a work reduction of at least 50%. Generally, the Act requires employers to provide their employees with written notice at least 60 days before the closing. Employers cannot rely on verbal announcements, press releases, or notices included with a paycheck.

Many Texas employers require potential applicants and current employees to submit to drug testing. Federal and Texas laws permit private employers to adopt and implement broad drug and alcohol testing policies for their employers, with minimal limitations. However, according to the Texas Workforce Commission (TWC), government employers must show a compelling justification for drug testing.

The consequences of a failed drug test can be life-altering for an applicant or employee. In some cases, employers will provide rehabilitation services, but more commonly, employers will refuse to hire a potential applicant or terminate an employee. Additionally, employers are allowed to release the test results to the TWC, and this can affect a person’s unemployment compensation. Employees who believe their employer impermissibly drug tested them may have some legal protections.

Most employers should provide their employees with a written drug testing policy that outlines what results will be a violation, which employees require drug testing, and what measures will be taken after a violation. Unfortunately, Texas employers can fire employees that refuse to sign an acknowledgment of the drug testing policy. However, employers need to provide the employee with a warning that there is a risk of termination if they fail to sign the policy. Additionally, the policy needs to be enforced in a non-discriminatory manner.

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