Articles Posted in Workers’ Rights

Texas employees who have suffered discrimination in the workplace may utilize two agencies to bring an employment discrimination lawsuit. These two agencies are the Texas Workforce Commission (TWC) or the Equal Employment Opportunity Commission (EEOC).

Federal employment discrimination lawsuits include discrimination complaints based on retaliation, national origin, disability, gender, race, age, pregnancy, and religion. Texas has implemented the Texas Commission on Human Rights Act (TCHRA). In addition to the federal protections, the TCHRA also protects employees from discrimination based on genetic information.

The EEOC is a federal agency that enforces federal employment discrimination laws. The Age Discrimination in Employment Act, Americans with Disabilities Act, and Title VII of the Civil Rights Act, are all administered by the EEOC. The TWC is a state agency that provides workforce services to Texas employers, job seekers, and employees. The TWC enforces the TCHRA.

Under the Americans with Disabilities Act (ADA), employers cannot discriminate against prospective or current employees based on their disability. The ADA provides that qualified individuals with disabilities should receive a reasonable accommodation to perform their job duties, unless it imposes an undue burden on the employer. These accommodations offer disabled individuals the ability to engage in equal employment opportunities.

Reasonable accommodations can be provided at all stages of employment and in various ways. For example, employers may be asked to change the application process or training process to accommodate a prospective or new employee. Moreover, an employer could adjust equipment or software to assist a disabled employee. Although employers are not required to create new positions, they may be required to reassign employees if a qualified position becomes available.

In some instances, an employee may request to work at home to accommodate their disability. Although not every job can be performed at home, teleworking can be a reasonable accommodation depending on the circumstances. The ADA does not mandate employers offer teleworking as a reasonable accommodation; however, if an employer does retain a teleworking policy, they must allow disabled employees that same opportunity. The result may be an employer modifying their current teleworking policy to accommodate a person with disabilities.

The Fourth Amendment to the United States Constitution provides citizens with protections against unreasonable searches and seizures, and gives them the right to be secure in their persons, houses, papers, and effects. While this may seem to confer privacy rights to employees, the Amendment was intended to protect citizens from government intrusions and does little to protect employees’ right to privacy. As a result, Texas employers will often search an employee’s email and make an employment decision based on information that an employee thought was private.

Courts have held that employees do not retain an expectation of privacy in specific work areas. As such, employers often maintain the power to search through employee’s work areas — this includes their office, desk, or even lockers and company cars in certain instances. In most cases, employees do not have a right to privacy in their work email or any other information contained on an employer-owned computer server. If an employer provides the employee with an email address or computer, the employer is allowed to monitor the contents of the email account or computer.

While it may seem as though employers have free reign over searching an employee’s email, there are certain instances where employees can expect email privacy. One situation where this may be the case is when there is a collective bargaining agreement or another contract that indicates that the employer is not permitted to search through work emails and computer servers.

The Immigration and Nationality Act (the Act) provides U.S. citizens, permanent residents, asylum seekers, and refugees protection against employment discrimination based on their immigration status. The Act applies if an employer has more than four employees.

Discrimination under the Act occurs when an employer treats a person differently based on their immigration or citizenship status. The law requires Texas employers treat people equally when they announce a position, solicit applications, conduct interviews, make job offers, hire an individual, or terminate employment. Moreover, employers cannot retaliate against an employee if they file a claim of discrimination, participate in an investigation, or assert their rights under any anti-discrimination law. However, this rule does not apply to permanent residents who fail to file for naturalization within six months of eligibility.

If a prospective or current employee suffers any type of adverse employment action based on their immigration status, their employer may face liability. Some common forms of discrimination based on immigration status are when an employer only hires U.S. citizens, if an employer does not want to hire a person because of the paperwork involved in hiring a temporary resident, or demanding to see specific un-required documents.

The Fair Labor Standards Act (FLSA) establishes specific standards for part-time and full-time employment. The FLSA applies to private, state, and local, and federal government employees in Texas. According to the Texas Workforce Commission, this federal act covers minimum wage, overtime pay eligibility, and record keeping.

Although the FLSA covers some critical employment issues, unfortunately, several employment practices are not included. Generally, under Texas law, employers are not required to provide pension plans to their employers. Further, Texas employers do not need to give raises unless there has been an increase in the minimum wage. The FLSA also does not require employers to pay their employees extra pay for holidays or weekends. Similarly, employers do not have to pay shift differentials; meaning employers do not have to provide extra compensation for undesirable shifts.

Employee Breaks Under the FLSA

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.

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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.

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