— Employee Rights Category Archives — Page 2 of 5 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Hair Discrimination Soon to Be Illegal in Texas

June 2, 2023 | Deontae Wherry

I’ve always found it puzzling why other people take offense at someone else’s hair. When I was a child, I was captivated by the diverse hairstyles chosen by my relatives. Some rocked dreadlocks, afros, cornrows, and braids. At one point, I even tried growing out my own hair in the hopes of getting braids. I saw it as a way to express my pride in my black heritage. Unfortunately, my hair never reached the desired length.

As a result, I settled for low-cut fades, and that became my signature look. People grew accustomed to seeing me with a low-cut fade. However, there were times when I could not get a haircut and had to sport a small afro. Surprisingly, some individuals joked about my hair being unprofessional. I had never considered the possibility of my hair being deemed unprofessional because I consistently applied oil, combed or brushed it with care.

As I matured, I embraced my culture even more. Witnessing successful black individuals unabashedly embrace their heritage inspired me to be my authentic self. Sadly, some individuals, especially black women, feel constrained and unable to fully express themselves due to concerns about judgment based on their appearance, hairstyle, or even their employability.

What Happens on “Four Twenty-One”?

April 24, 2023 | Paige Melendez

April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test.

A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.

Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.

When the Ship Sinks

March 2, 2023 | Paige Melendez

When a company files for bankruptcy, the media plasters photos of their “going out of business” signs and empty storefronts to announce that the company could be no more. What is not shown is the complex, often long process of actually filing for bankruptcy. Filing for bankruptcy also comes in different flavors and different factors may help employees’ situations. To give a general idea of how bankruptcy affects employees, below we’ll look at the types of bankruptcy as well as examine the additional factors that may change the outcomes for employees. All in all, the announcement of bankruptcy can be terrifying for any employee that is currently employed by that company, but by learning more about the process it can help employees make more informed decisions.

Beginning with types of bankruptcy, if a company files under Chapter 11, it means that the company may attempt to reorganize and continue operating under court supervision. In this case, the company may have to make difficult decisions such as reducing its workforce, closing unprofitable departments, or renegotiating contracts with suppliers and creditors. The company may also be able to negotiate with labor unions to reduce salaries or benefits temporarily. However, in some cases, employees may be able to keep their jobs or be rehired once the company emerges from bankruptcy.

Another potential filing is under Chapter 7 or where a company is liquidated. Liquidation means that a business’ assets will be sold to pay off its creditors. In this case, employees will likely lose their jobs, and the bankruptcy trustee will use the proceeds from the asset sales to pay any outstanding wages and benefits owed to them. This situation is not ideal, but there’s still another option.

Let the Jury Decide

December 29, 2022 | Deontae Wherry

One the greatest rights we have is the right to a jury trial. While many employment cases never make it to a jury, employees still have this fundamental right to attempt to get his/her case to a jury.

Over the last year, we have witnessed more employment cases being tried before a jury. One of the reasons we are seeing more jury trials is courts are trying to clear their backlogs from the pandemic, and the way to do that is by having jury trials and getting cases off their dockets. Another reason is people want their day in court. As a result, we have witnessed significant jury verdicts in employment cases.

I also realize that some people do not like juries. Why is this? Maybe it’s because your fate is in the hands of people that you do not know. Perhaps you may not feel confident that you will be given a jury of people who are truly your peers. That is okay if you are uncomfortable having a jury decide your case. You can always have a bench trial before the judge. I must admit getting a case to a jury is not easy, which is discussed by my colleague, Jairo Castellanos, in a recent blog. But, for now, let’s discuss who jurors are, their purpose, and recent jury verdicts.

Last Minute Shopping? Bring Kindness.

December 22, 2022 | Paige Melendez

Whether you are last minute shopping or merely intend to do some shopping during the busiest shopping time of the season, we all know that stores become packed. This includes lines of people longer than normal, harried store associates racing to re-stock shelves and answer questions, and customers becoming less patient. It’s the last symptom that brings forward my trite recommendation for this holiday season: Be Kind. This mantra is used year-round for various purposes – believe me, I too roll my eyes – but in the context of an at-will employee diligently working during the winter, it makes sense to be reminded and here’s why. In my last blog I looked at how holiday hours are only beneficial if you can and do work overtime hours. This blog is about how workers are treated during those busy holiday hours by customers and store management.

If you have ever had to work in any kind of customer service position or retail job, then you are aware that the holiday season brings a type of dread with it. Most customer service based positions and almost all retail positions are hourly employment jobs and deemed to be at-will. At-will employment in Texas means that there is no job protection for these workers, and they can be fired for any reason or no reason at all. For example, take Rhonda – a cashier – putting in her very best efforts, battling the long lines of patrons and getting them through the checkout line as quickly as she possibly can. Drake, her manager, who is upset at how many customers are complaining during the holiday season, may not care about Rhonda’s best efforts. All he hears and cares about are the customers complaints over the predictably long lines. After being on her feet all day, and even working overtime hours with the store staying open late, Rhonda could be fired. Rhonda would have no recourse if her unreasonable manager terminated her employment for a legitimate non-discriminatory reason like customer complaints about long lines in front of her cash register.

Aside from her manager’s obtuse lack of understanding about the holiday shopping season, Rhonda may feel some modicum of relief at being relieved of her job duties. It may be shocking to think that someone losing their job during the middle of the holiday season would have any benefits, but the silver lining for Rhonda may be the fact that she no longer has to put on a happy face as customers continually berate her.

Gig workers: Employee or independent contractor?

December 19, 2022 | Haylie Davis

In October, the Biden Administration issued a highly anticipated proposal on how it will approach independent contractor status under federal wage law. The proposal, released by the US Labor Department, clarifies when workers should be classified as independent contractors or be classified as employees who are afforded many more rights, such as full minimum wage, overtime, and other protections provided under the Fair Labor Standards Act.

This is a potential game changer for millions of gig workers, who are often classified as independent contractors. This includes the quintessential Uber drivers and food delivery app drivers, but construction and agriculture have some of the largest representation of independent contractors in the country.

When this was announced, gig companies such as Uber Technologies Inc. and Lyft Inc. worried about what this will do for their company, as stock prices took a tumble after the announcement. These businesses say their operating costs would skyrocket if they were broadly required to reclassify their independent contractors as employees, due to the tax liabilities and minimum wage, labor, safety, and other legal requirements that apply to employees.

Am I Exempt or Non-Exempt from Stacks of Holiday Green?

December 5, 2022 | Paige Melendez

During the holiday season around my college campus, there was “common knowledge” that one of the biggest benefits of working retail on holidays like Black Friday was that you’d be entitled to time and a half solely because you worked on that day. Cut to becoming an employment lawyer and it’s time to debunk that myth. There are a few things that factor into working during the holiday season, which traditionally kicks off with Thanksgiving and more importantly, Black Friday. The first is whether a non-exempt employee can be forced to work on a holiday, then whether there are any additional benefits to working on a holiday that may make it worth it, and finally whether an exempt employee has access to these same considerations.

For starters, when I use the phrase “non-exempt” and “exempt” I am referring to the Fair Labor Standards Act (FLSA) denotation for employees who are entitled to overtime (and therefore “non-exempt”) and employees who are not entitled to overtime (and therefore “exempt.”) We are going to focus on non-exempt employees because that’s where the myth of extra pay originates. Turning to whether non-exempt employees can be required to work on a holiday like Thanksgiving or a federally recognized holiday, the short answer is: unfortunately, yes. The FLSA does not require employers to give employees days off even on a federally recognized holiday. Individual employers, of course, can decide to have truncated days or allow employees to request those days off, but there is no law requiring them to do so. There are a few exceptions to that rule, and they mostly involve employees that are allowed to have days off because of a different allowance like observing a religious holiday or where there is a collective bargaining agreement (union contract with employer) that allows those days off. Without an exception, the non-exempt employees are at the mercy of their employers. (There’s also that meme that says requests for days off are simply polite notices of non-attendance, but I would not recommend that strategy.)

Next, we turn to the myth that started it all: employees get paid extra to work on holidays. This myth is both true and false like all good myths. The true part is that if working on Black Friday pushes non-exempt employees over the 40-hour threshold, employers are then required to pay time and a half like any regular overtime. The false part is that there is no requirement under the FLSA that says employers must pay workers time and a half simply for working on a holiday if those hours do not count for over 40 hours. Therefore, it can be beneficial for employees to work on holidays because the hours are longer and more likely to net overtime pay, but there is no benefit just by working on a holiday.

The Twitter Showdown: Layoffs and the Law

November 28, 2022 | Deontae Wherry

Twitter’s new CEO, Elon Musk, cannot stay out of the courtroom. Just a few months ago, Twitter sued Mr. Musk after he attempted to walk away from purchasing the company despite the parties reaching an agreement. The court set Twitter’s lawsuit for trial in October 2022. Weeks prior to the trial, Mr. Musk unexpectedly agreed to proceed with his original offer to purchase Twitter.

When Mr. Musk officially acquired Twitter, he immediately terminated the company’s top executives. Mr. Musk did not stop there; subsequently, he randomly laid off several employees without notice. As a result, these employees are suing Twitter for not giving proper notice regarding their layoff. Less than a month into Mr. Musk’s leadership of Twitter, Mr. Musk and his company are back in the courtroom. One would think that an experienced executive would consult an attorney prior to unreasonably exposing his company to potential liability, but not Mr. Musk who seems to make impulsive decisions.

The employees’ lawsuit alleges that Twitter violated the WARN Act when Mr. Musk announced that he would be reducing Twitter’s global workforce. It was speculated that the layoff could affect 50% of Twitter’s workforce. Since this lawsuit, Twitter has taken measures to reduce its potential liability under the WARN Act.

Welcome to the Era of Salary Transparency

November 10, 2022 | Haylie Davis

Have you heard it’s “taboo” to talk about your salary? Us too. Well, that is out the window now. Welcome to the era of salary transparency. Yes, we know it can be awkward to talk about salary, but with new laws on the horizon, it may be a little easier to figure out how much your co-workers are getting paid.

Recently, the New York City Council passed a law requiring employers in New York City with four or more employees to list the minimum and maximum salary on all job posting including ads, promotions, and transfer opportunities. This law applies to any position that can or will be performed, in whole or in part, in New York City. This affects remote listings, meaning any job that could conceivably be done in New York City must follow this.

So why did the New York City Council deem this necessary? They passed this law to try and fight against big pay gaps, specifically between genders as well as between majority and minority racial groups. Let’s be honest, pay matters. It affects where you work and how long you decide to stay there.

What are my options if my employer forces me into court far from home?

August 18, 2022 | Austin Campbell

Summary: This article discusses some strategies, including different contract clauses, that employers might use to try to control where you can sue them, or to try to sue you in a far-away place.

If you are in a legal dispute with your employer, where the lawsuit is filed can make a big difference. That affects who the judge is or who might be on the jury. Exactly where a lawsuit can be filed depends on the nature of the legal claims in it. However, two basic principles generally apply. If there are multiple permissible options of where to file suit, the party filing suit gets to choose where to file suit. However, the location must be somewhere that has “personal jurisdiction” over the defendant—i.e., the defendant has to have sufficient connections to the location for it to be legally “fair” to sue them there. This article, however, explores ways that employers may try to get around these basic principles through contracts containing “forum selection” or “venue selection” clauses.

While Texas is an at-will state and sometimes you may have next to nothing in writing from your employer that controls the terms and conditions of your employment, your employer might force you to sign things like a non-compete or an arbitration agreement as a condition of employment. Those may contain language trying to force any disputes to be heard somewhere specific to get around the usual rules for where they should be heard.[1] This can potentially result in situations where you, a Texas employee, are either sued or have your lawsuit moved to a location far from you or even out of state. This might also result in non-Texas employees being sued or forced to only sue in Texas.