— Employee Rights Category Archives — Page 4 of 5 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Don’t Move the Goalpost

September 16, 2021 | 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.”

As the client, you set the goals for your case. This is where you tell your attorney what your desired outcome is. If you don’t know what your options are, ask your attorney to walk through the potential outcomes. In many employment law cases, employees want a severance for lost wages, a neutral reference for prospective employers, a reasonable accommodation for a disability, or reinstatement of an old position. This is not an exhaustive list, but represents some of the common goals that clients desire. Be sure to sit down with your attorney to discuss all your options.

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

July 23, 2021 | Rob Wiley, P.C.

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.

Proponents for the use of AI in hiring practices claim it speeds up the hiring process, more accurately identifies the right candidates for the position, and eliminates human bias and subjectivity. In a survey conducted by LinkedIn, 67% of recruiters surveyed said AI saved them time and 43% of them said AI removed human bias from the hiring process. I can agree that AI saves time. But removing bias? Not so fast.

The (Harmful) Myth of the Perfect Plaintiff

June 18, 2021 | 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.

For employees experiencing discrimination and/or retaliation, having a disciplinary history may feel like an insurmountable obstacle to any employment claim they may want to pursue. This concern is the fuel that perpetuates the myth of the perfect plaintiff, but as the old adage goes, the devil is in the details.

A Quick-ish Answer to “What is a PPP or Prohibited Personnel Practice”

April 23, 2021 | Paige Melendez

Top10Blog-Post Most Federal employees enjoy an entire administrative regime dedicated to vindicating their unique rights. Out of this regime there are three big enforcement mechanisms that come to mind: Equal Employment Opportunity (EEO) offices, the Merit Systems Protection Board (MSPB), and the Office of Special Counsel (OSC). These three agencies are often entangled together, but each of them is dedicated in some way to addressing PPPs or prohibited personnel practices. A PPP is exactly what the name implies: certain practices in a Federal workplace that are unallowed under the law. The law lists out about 14 things which qualify as “prohibited.” It is important to note, however, that not all Federal employees can find relief through reporting these practices. Employees of local or state governments, uniformed military members, people who work in Congress or for the courts, United States Postal Service employees (except in specific situations), and finally employees of the FBI and CIA are not covered. The list of who is not covered is more expansive, than what is listed above, but those are the ones that may be the most relevant to the general body of Federal employees. To get a better idea of what the different PPPs are and how they would function, below are brief illustrations of the main PPPs using Official, an agency official in a supervisory capacity, C a favored employee, and D a non-favored employee.

First, there is a PPP that prohibits discrimination based on protected characteristics under federal law. This PPP tracks Title VII for the most part, but also adds in marital status and political affiliation to race, color, religion, sex, national origin, age, and disability. Discrimination PPPs are handled primarily through a Federal agency’s EEO office, but the Office of Special Counsel may step in if the discrimination is based on marital status or political affiliation. Adversity based on political affiliation is also covered in a different PPP. For example, if Official attempted to influence D to hand out flyers for a specific political candidate or decided not to promote D because she refused to hand out flyers, it would be considered a separate PPP from discrimination based on political affiliation.

There are also four PPPs that have to do with violations of the merit systems that civil service is based off of. Things like considering a recommendation that was made by someone else outside of the agency. For example, if Official heard from Friend that C would be a good fit for the job and hires C based off of what Friend told him and not through his personal assessment – it is considered a PPP. Likewise if Official decided to give D an artificially low rating so that she would not be eligible for promotion, the Official would be considered to be “obstructing competition.” Official would also commit a PPP if he approached D and told her she should not apply for the promotion to remove her from competition because Official knew C was applying for the same job. In that same vein, Official could also not change the requirements for that promotion to give C an unauthorized advantage. Finally, if Official’s daughter were to apply to a position in his agency, Official could not hire her because she’s his daughter. This would also apply if Official called up his friend at another agency and attempted to influence the other agency to hire his daughter.

At Will Employment: What does it really mean in Texas?

February 26, 2021 | Rob Wiley, P.C.

What does it really mean to be an “at will” employee in Texas? You’ve certainly heard of this term often. In the next few paragraphs, I will talk about what that term really means in the eyes of the law and how it impacts you, and I’ll also discuss the exceptions to at will employment.

The first thing you should know is that Texas is an “at will” employment state. At will employment simply means that your employer can fire you at any time, for any reason, or for no reason at all. That actually includes false, malicious, unfair, or unethical reasons, as long as those reasons aren’t illegal, or in violation of a contract (we’ll discuss below). At the same time, it also means that you, the employee, can quit your job at any time, for any reason, or for no reason at all. But what if your employer required you to give two weeks’ notice before you quit; does that mean you’re not an at will employee? In general, if your employer requires two weeks’ notice before you quit but reserves the right to fire you without notice, then your employment is likely still at will. This means if you quit without notice, you may be violating your employer’s policy, but not any law or contract.

Get that Paper (As Long as You Do It for Your Coworkers, Too)

January 29, 2021 | Paige Melendez

For an employee in Texas there are very few protections because Texas is an at-will employment state. An employer can fire an employee for any reason or no reason, and it is protected under Texas state law. The only thing an employer cannot do is terminate someone or take an adverse action against them for an illegal reason where their motivation is based on an employee’s protected characteristic. On that backdrop, it would seem that an employee has no recourse against an employer who is treating employees poorly, but not illegally. However, the National Labor Relations Act (NLRA) does more than protect unions, it also creates an avenue for employees to raise concerns about the terms and conditions of their employment. The NLRA was meant as a way for workers to advocate for themselves, which most of the time takes the form of creating a union, but the protection is not limited to union members. Section 7 (aptly named “Rights of Employees”) states that “employees shall have the right…to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This provision is given teeth by a later section which states that things like an employer’s interference with or restraint of these Section 7 rights is an unfair labor practice. The NLRA even created the National Labor Relations Board (NLRB), which is an independent Federal agency that operates to enforce these provisions. Based on this history and structure, the NLRA gives employees a toolbox that can be used to approach an employer about their employment and have that activity protected by law.

“Judicial Estoppel”: When bankruptcy is more than just a financial obstacle to protecting your rights as an employee

January 22, 2021 | Austin Campbell

Usually when your employer has done something illegal to you, it hits you directly in the pocketbook. For example, maybe your employer illegally denied you an earned bonus, failed to pay overtime you were owed, or fired you in retaliation for a protected complaint. Often that loss of income can put you as the employee in a precarious financial position. Unfortunately, you might have no choice but to declare bankruptcy.

The intersection between employment law and bankruptcy law can be complex and unintuitive; a full explanation of it is beyond the scope of this article. However, bankruptcy can impose legal—not just financial—barriers on your ability to protect your rights as an employee. This article is meant to put employees on notice of some steps they can take in a bankruptcy situation, to reduce the chance of losing their ability to vindicate their rights and recoup their economic losses.

Hostile work environment and workplace harassment—how far can my boss go?

January 8, 2021 | Rob Wiley, P.C.

“Hostile work environment” and “harassment” are probably two of the most common terms I hear in my everyday practice. Both terms are generally interchangeable under the law and mean the same thing. Workplace harassment takes different forms such as being subjected to yelling, bullying, intimidation, ridicule, belittlement, false accusations, and profanity. Because Texas is an at-will employment state, however, not every harassment is illegal. In fact, most forms of harassment are legal.

There are a few requirements for the harassment to be illegal. First, it must be discriminatory—meaning that it must be based on a protected characteristic, like race, color, religion, sex (including pregnancy), sexual orientation, national origin, age, disability, or genetic information. If the motive behind the harassment is something else that is not protected, like personal hatred or big egos, then the harassment, no matter how awful, is not illegal (with a very narrow exception discussed below).

Baby It’s COVID Outside: Emergency Paid Sick Leave for the New COVID-19 Spikes

December 25, 2020 | Paige Melendez

The weather is getting colder and nationally, the United States is experiencing a new spike in COVID-19 cases. The country is trying to jump multiple hurdles all at the same time and one of them happens to be dealing with the new increase in people contracting the virus. Thankfully, the legislation that dealt with the first wave of the virus is still here to help supply leave due to sickness. The “Families First Coronavirus Response Act” or FFCRA provides relief to anyone who falls ill because of COVID-19 between now and December 31, 2020 when the Act expires. This short window of application may be extended or replaced by further legislation, but whether that will occur before the deadline passes is unclear. However, it is still worthwhile to examine what mechanisms are in place to deal with sick leave currently. One mechanism that Congress added as part of the FFCRA is the “Emergency Paid Sick Leave Act” or EPSLA. EPSLA gives paid sick leave to certain employees if they fall ill or are caring for someone who falls ill from COVID-19. To determine whether EPSLA covers you, we have to ask 4 main questions: 1) Are you an employee who EPSLA covers; 2) Is your employer required to give you paid sick leave under EPSLA; 3) How much leave can you take and what does that leave look like; and 4) What are your options if you think your employer is violating EPSLA. Each question will be addressed in turn.

Locked up and my employer won’t let me out: Have I been falsely imprisoned by my employer?

December 18, 2020 | Rob Wiley, P.C.

False imprisonment is the wrongful restraint, confinement or detainment of a person without that person’s consent. False imprisonment is a crime and can be charged as a misdemeanor or a felony, depending on the severity of the imprisonment. Additionally, false imprisonment is a common law tort and can arise in the employment context. To successfully sue your employer for false imprisonment, you must show:

1. you were detained, confined, or restrained against your will by your employer in the workplace;
2. you did not consent to being detained; and
3. the detention was unreasonable or unlawful.

In order to show that you were detained, confined or restrained against your will, you must show that there was an impediment to your freedom. In other words, you must prove that your employer prevented you from leaving the room or area in which you were confined. Common examples of an employer confining an employee include, locking the door or placing someone or something at the door to block the exit. Keep in mind, however, that you must be completely confined in order for your employer’s action to qualify as false imprisonment. For instance, blocking your ability to exit the room in one direction is not enough. If there is another reasonable way to exit the room heading in a different direction, then false imprisonment has not occurred.