— Employee Rights Category Archives — Page 7 of 8 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Lights, Camera Action: Get Your Popcorn Ready – The Supreme Court is Back in Session and COVID-19 is on the Agenda!

January 6, 2022 | Rob Wiley, P.C.

Employment issues will again take center stage at the U.S. Supreme court on January 7, 2022, and appeals related to vaccine mandates are sure to be the main attraction. Alas, vaccine mandates will be squarely before the Court and audiences nationwide will soon receive some clarity from the nation’s highest Court regarding vaccine mandates in the workplace.

Enforcement of the Biden Administration’s vaccine mandates applicable to government contractors, CMS and large employers had been stayed or partially stayed by various federal courts. The OSHA Emergency Temporary Standard (ETS) applicable to most employers having 100 or more employees was stayed by the Fifth Circuit Court of Appeals prohibiting enforcement of the rule. However, on December 17, 2021, the Sixth Circuit Court of Appeals, which was chosen by lottery to hear the consolidated appeals challenging the ETS, dissolved the stay that the Fifth Circuit put in place. Thus, employers with 100 or more employees that are not specifically exempt from the standard due to disability or religious belief must now take steps to comply with the emergency rule. Judge Stranch delivered a gripping opinion addressing the question that has been vexing employers since the beginning of the pandemic:

Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

Texas v. New York: Which state offers more protections to employees? The answer will not surprise you.

December 2, 2021 | Rob Wiley, P.C.

It is no secret that in the past few years companies have been moving their principal places of business from progressive states, like California or New York, to Texas. Texas has been known as a “business-friendly” state, and for good reasons. Among other things, Texas has a healthy economy, a prime location in the center of the country, no state income tax, and affordable cost of living.

One major factor that doesn’t receive much publicity is Texas’s far less-restrictive labor & employment laws. After all, a company relocating thousands of its employees to work in Texas means a lesser risk of violating more restrictive laws in states like California or New York.

So how is Texas different from other progressive states when it comes to employee rights? To answer this, let’s explore some of the labor & employment laws of the state of New York.

Strategize your Resignation

November 11, 2021 | Paige Melendez

For employers and employees alike it is becoming apparent that there is a trend of employees leaving their workplaces. In Texas, the at-will doctrine allows an employee to leave for any reason or no reason, but sometimes resignations can be a bit more complicated. For employees it is complicated because resignations can be and should be used strategically rather than a simple decision to leave a job. To use a resignation strategically, there are a few things to consider and think about before pulling the plug.

First and foremost, leaving a job can evoke questions about eligibility for unemployment benefits. In Texas, resignations, except for narrow exceptions related to “good cause connected with the work,” can be fatal to an application for unemployment benefits. While every case is different, resignations likely spell the end for unemployment benefit eligibility. Yet, it ultimately comes down to the Texas Workforce Commission’s decision. Therefore, if unemployment benefits are part of the financial planning underpinning a resignation, it is important to keep this in mind.

If unemployment benefits are not a concern or can be overlooked, then resignation becomes a good option to leave an employer on amicable terms. Outside of a contractual obligation, there is generally no notice period requirement on resigning. Nonetheless, there are practical steps to take before submitting a notice of resignation to protect your best interest. By way of example, medical procedures that can be done while health insurance coverage is still fully paid by your employer, figuring out finances in case you cannot find a different job, how a resignation might look at your next employer, and finally, contractual obligations. The contractual obligations can be tricky and are typically governed by an employment contract that an employee signed at the beginning of employment. Contracts that govern resignations or leaving a job without cause sometimes have requirements like a notice period, a method of giving that notice like certified mail to a specific address, or even set out specific information that needs to be in a notice. Some contracts even have promises of severance.

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.