Articles Posted in Workers’ Rights

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.

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.

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.

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.

The Fair Labor Standards Act (FLSA) requires that businesses and employers provide nursing mothers with certain accommodations in the workplace. The Act applies to all qualified Texas employees, and if their employers do not offer these benefits, the employer may be liable.

Section 7 of the FLSA (the “Act”) requires employers to provide employees with time and resources to breastfeed in the workplace. The Act mandates employers to provide their employees with a “reasonable break time” to express breast milk for their nursing child for up to one year after the child’s birth. Often, these breaks are referred to as “pumping breaks.”

The amount of time the employer is required to provide must be reasonable, but this will vary as to the frequency and number of times needed. Employers have several options on how to allow their employees this reasonable time. Some have periods of downtime, and they may ask their employees to use that time to express milk. In certain instances, employers allow employees to split shifts to enable employees to leave and express milk. If an employer has a formal policy for nursing mothers, they must adhere to these policies and procedures.

Under Texas workers’ compensation law, employees who are unable to work because of injuries or illnesses they suffered during or in the scope of their employment are entitled to income benefits. Injuries are under the course or scope of employment when they occur while the employee was furthering or carrying out the employer’s business interests.

Even though Texas is an at-will state, Chapter 451 of the Texas Labor Code prohibits employers from discriminating or retaliating against employees who file a workers’ compensation claim. Specifically, an employer cannot retaliate against an employee for 1) filing a workers’ compensation claim; 2) hiring a lawyer to represent them in a workers’ compensation claim; 3) imitating procedures under a workers’ compensation claim; or 4) testifying in a workers’ compensation proceeding. Importantly, for these protections to apply, the employer must be a part of the state’s workers’ compensation plan.

Employers may try to hide their true motives behind a legal reason, and it is crucial that Texas employees who believe their employer retaliated, discriminated, or terminated their position based on their workers’ compensation claim seek legal representation.

The Fair Labor Standards Act (FLSA) is a federal law that provides employers with specific employment standards they must abide by. Employers must conform to the minimum wage, age, record keeping, and overtime rates the FLSA establishes. Texas employees whose employers violate these standards may file a lawsuit asserting their rights under the FLSA.

Employees can join together to file their claims under the collective action process. To bring a collective action, the employees must be “similarly situated.” Similarly situated employees are those that are subject to the same employment policies and procedures, even if they work in different locations or divisions. Typically, these actions are based on employee misclassifications, wage discrepancies, and/or break times.

Collective actions are similar to class actions; however, there are distinct procedural differences between the two processes. First, collective actions require the potential employees to “opt-in” to the lawsuit. Opting-in requires the employees provide written consent to be a party in the lawsuit. Employees that do not opt-in will not receive the benefits of the judgment and will not be bound by the ruling. In contrast, class actions automatically include all members of the class, and those that do not want to be involved must opt-out. Next, courts will only certify a lawsuit as a collective action after they conduct a two-part inquiry. Finally, a class action statute of limitations can be tolled while the court determines whether the employees can establish the proper class. Alternatively, the statute of limitations for collective actions will run until an employee files a consent to opt-in.

Texas employers that cite background checks in their personnel decisions must comply with specific procedures and statutes. Employers will typically include background checks in their hiring, retention, and promotion policies to evaluate a person’s work, education, financial, and criminal history. Although background checks are an integral part of workforce development, employers must protect employee’s rights in the process. The Federal Trade Commission (FTC) and the Equal Employment Opportunity Commission (EEOC) enforce the standards put forth through the Fair Credit Reporting Act (FCRA) and federal protections.

The EEOC requires employers to treat their applicants and employees equally before they request or review their background information. Employers cannot discriminatorily select which applicants and employees they request information for based on a person’s protected class. Under the FCRA, employers must take additional steps before they request an applicant or employee’s background information. The FCRA requires employers to:

  • Inform the person the employer might use the results of the background check to make an employment decision;

Texas is an “at-will” employment state. This classification allows employers to terminate an employee for almost any reason. Texas employers can modify or terminate any or all of the terms of an employment relationship with or without warning or cause. Although this arrangement seems inherently unfair — and in some cases it is — there are some protections for employees.

The statutory exceptions that protect Texas employees from wrongful termination include state and federal employment discrimination laws, protected activity statutes, whistleblowing protections, anti-retaliation laws, military or jury duty requirements, and union activity protections. Additionally, the courts have enumerated public policy and contractual exceptions. The Texas Supreme Court created one of these exceptions in Sabine Pilot Svs. V. Hauck. The Sabine Pilot Rule prohibits employers from terminating employees based on their refusal to engage in illegal activities.

The Sabine Pilot Doctrine provides Texas employees with employment protections if they face wrongful termination because they refuse to commit an illegal act. To assert this protection, the employer must have demanded the employee commit an act that could lead to criminal prosecution, if committed. Common examples include asking employees to forge safety documents, release confidential information, provide customers with unprescribed medications, and dispose of hazardous materials in an unsafe way.

Contact Information