Articles Posted in Workers’ Rights

For those who work in the service industry, the importance of tips cannot be overstated. Many service employees work primarily for tips, meaning that their employer only provides them with a minimal level of base hourly compensation. Thus, for many service employees, their lives literally depend on the amount of tips they bring in.

On its face, the concept of tipping seems to only benefit the employee receiving the tip. However, over the years, employers have also found ways to benefit from society’s expectation that an employee will be tipped for the services they provide. For example, under Texas law, an employer is able to pay a tip-eligible employee less than those employees who do not receive tips by taking a “tip credit.”

A tip credit is an adjustment that employers can make to a tipped employee’s wage, assuming that the employee will make up the difference in tips. For example, the minimum wage in Texas is $7.25/hour. However, an employer only needs to pay a tip-eligible employee $2.13/hour. The remaining $5.12/hour is considered a tip credit. If, however, the employee does not bring in at least an additional $5.12/hour, the employer will be required to pay the difference. Thus, tipping allows for an employer to pay its tipped employees less than they pay non-tipped employees.

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The United States has a long history of discrimination against various groups, including racial minorities and women. And it should come as no surprise that the most desirable jobs are filled by those who have been given the best opportunities to succeed by not having the road-block of discrimination erected in their path. This often means that certain minority groups, as well as women, are poorly represented across certain industries.This fact has led some private and public-sector employees to engage in what is known as “reverse discrimination.” Essentially, reverse discrimination is exhibiting the preference of a minority candidate over a candidate of a majority group.

Discrimination is often used in the context of adverse action being taken against a person in a minority group. However, that is not necessarily always the case. When an employer exhibits a preference for one group over another based on an immutable characteristic such as race, they are engaging in a form of discrimination. However, the Texas Labor Code and Civil Rights Act of 1964 apply to all citizens equally, regardless of whether they belong to a majority or minority group.

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When a Texas employment issue arises, there are several methods by which it can be resolved. Traditionally, the aggrieved employee would file a lawsuit in a court of law with the intention that a judge or jury would ultimately resolve her or his claim.

However, over the years, alternate means of settling claims have become more and more popular. For example, in a recent blog post, we discussed how mediation may be a good way for an employee to resolve an employment claim. This is because the mediation process involves a trained expert helping the parties come to a mutually acceptable solution to the issue. If the parties cannot come to a final agreement, then neither is bound by what occurred during the mediation or by any recommendations of the mediator.

Another form of Texas employment dispute resolution is called arbitration. Arbitration is much less favorable for Texas employees. The process involves a private, non-judicial decision-maker, called an arbitrator, who hears a case and issues a decision. Unlike the mediation process, arbitration binds the parties. And unlike the formal legal process, arbitration rulings can often not be appealed. Arbitration proceedings are also private, meaning the result is kept out of the public eye.

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In today’s society, almost everyone has a cell phone. And while the primary purpose of cell phones used to be to make and receive phone calls, cell phones are now used not just for communication, but also as a form of entertainment and for web browsing. Cell phones are also used to keep schedules and conduct important business. In short, cell phones contain a significant amount of personal information, including passwords, contacts, and private communications. Given the enormous role cell phones have in our lives, it is clear why many are concerned about an employer’s ability to search an employee’s cellphone. It will come as a relief to many that, as a general rule, a Texas employer cannot conduct a search of an employee or their belongings against their will. This includes an employee’s personal cell phone. That being said, if an employee is using a company cell phone, the employer will likely be determined to have a possessory interest in the phone, and as a result the employee will have a greatly diminished expectation of privacy in the contents of the phone.

Of course, an employee is entitled to greater privacy rights when it comes to their personal cell phone. However, that does not prevent an employer from asking an employee if they will consent to a search. If an employee feels pressured by the fact that their supervisor asked to search their phone and the employee agrees, the search will likely be considered a legal one. However, an employer cannot use excessive force or make threats to obtain an employee’s permission to search their cell phone.

A coerced search is uncommon, however, because those employers who foresee the need to search an employee’s cell phone are likely to be proactive in obtaining employees’ consent. Indeed, the Texas Workforce Commission recommends that employers should have a written cell phone policy stating that “the employer reserves the right to physically and digitally search any devices with storage or memory capabilities that they might bring to work.” Absent such a policy, an employer’s search of an employee’s cell phone may constitute an invasion of the employee’s privacy.

Too often employees endure unfair or untenable workplace environments without speaking up. Often, employees are apprehensive about discussing poor working conditions with coworkers for fear of being retaliated against by their employer. Thus, it is essential that Texas employees are aware of the federal labor standards prohibiting this type of illegal practice that apply to both union and non-union workers. If you have a question about workers’ rights at your job, reach out to a Texas employment lawyer for answers.

Frequently Seen Unfair Labor Practices

Employees are vulnerable to unfair and illegal labor practices if they are unaware of the laws that protect them. Some common instances of unfair labor practices include situations where an employer threatens employees with some sort of adverse action if they engage in a discussion of workplace grievances. Some employers will even spy on employees or conduct investigations in an effort to uncover an employee engaging in the above behaviors. Commonly, this includes looking into an employee’s social media accounts.

The National Labor Relations Act (NLRA) protects an employee’s right to discuss their working conditions with other employees. While employers should be aware that employees are often allowed to say negative things about their employer without risk, many of them continue to take adverse actions against their employees in these instances.

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Mediation is a pretrial strategy that is designed to settle disputes before parties embark on a lengthy and often costly trial. Mediation is employed in many different contexts and is often one of the first methods of resolution in Texas employment discrimination cases. In fact, the Equal Employment Opportunity Commission (EEOC) has implemented mediation programs as one of the first steps to resolving employment discrimination lawsuits.

The mediation process allows the two parties to attempt to resolve their issues and points of contention with the assistance of a trained and neutral third-party. Mediation is an appropriate step in many types of cases that do not involve complex evidentiary or procedural issues. Mediators are trained in the art of negotiation, effective listening, and conflict resolution. In certain instances, the mediator is a trained attorney; however, they are prohibited from providing legal advice while in their mediator role.

The Three Main Types of Mediation

Generally, there are three schools of thought in regards to mediation: facilitative, evaluative, and transformative. In short, during facilitative mediation the mediator does not provide any type of opinion and only facilitates a discussion between the parties. During evaluative mediation, the mediator will provide information regarding the likelihood of success and some potential, reasonable terms of resolution. Finally, during transformative mediation, the main objective is to change the parties’ relationship with one another and allow them to successfully resolve the dispute.

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Most people on social media assume that their posts, while not necessarily private, are beyond the access of their employers. Indeed, part of what makes social media so valuable is that users are able to express themselves and their beliefs freely and without fear. However, many employees over the last few years have learned the hard way that employers can often find ways to access their posts. But when a Texas employer finds something they don’t like on an employee’s social media account, can the employer actually take action based on the employee’s social media posts?The answer, as is often the case with legal questions of this nature, is “it depends.” As a general matter, Texas is an at-will employment state, meaning that a Texas employer can terminate an employee for any reason at all, so long as it is not an illegal reason. Thus, if an employer does not like something that an employee posted on social media, the employer may be able to fire that employee over it.

Texas employers cannot discriminate, however. And if the post in question was expressing participation in or support of a protected group, the line of what the employer is permitted to do becomes blurry. That is because engaging in discriminatory employment practices regarding protected classes is illegal. In Texas, the classes that are protected by both state and federal anti-discrimination statutes are:

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Under Title VII to the Civil Rights Act of 1964, employers are prohibited from discriminating against their employees based on a number of criteria, including religion. Of course, under Title VII, employers are prohibited from making hiring or firing decisions based on a person’s religion, but the protection granted to employees under Title VII goes beyond that. The Equal Employment Opportunity Commission (EEOC) is the federal agency given broad authority to oversee the enforcement of Title VII.Employers must also allow for certain accommodations to be made for an employee’s religious beliefs. According to the EEOC, the following are examples of accommodations that employers have been required to make based on an employee’s religion:

  • Allowing an exception to be made for an employee dress code;
  • Permitting an employee to take time off for a religious holiday;
  • Excusing an employee from a staff prayer or other religious invocation;
  • Granting an employee permission to pray at certain times of the day;
  • Keeping an employee off the schedule during their day of Sabbath or worship.

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The federal minimum wage for hourly employees is $7.25 per hour. Unlike other states that allow for a higher minimum wage, the Texas minimum wage is $7.25. Advocates of a higher minimum wage have cited the unrealistic expectation that people are able to live on $7.25 per hour. Furthermore, they have argued that a higher minimum wage will foster the economic growth of the United States and close the gap between low- and middle-income families.On the other side, those in favor of keeping the minimum wage lower argue that employers cannot keep up with the higher wages and will have to lay off more employees, increasing the unemployment rate. However, despite the opposition to increasing the minimum wage, the fact remains that individuals in these positions often face many obstacles surviving on so little income. In some cases, employers will try to get around complying with the minimum wage requirement, which leads employees to face even more issues.

There are very few instances when an employer does not need to comply with federal minimum-wage standards. Some exceptions are if the employee is a farm worker, student learner, independent contractor, or tipped employee. If an employee is not sure if they fall into one of these categories, or they believe their employer is not complying with federal statutes, they should contact a Dallas wage and hour attorney.

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Under the Americans with Disabilities Act (ADA), employers are required to offer employees with disabilities reasonable accommodations that will provide them with the ability to apply for or perform the necessary functions of their positions. Employers will often attempt to shrug off this responsibility by claiming that providing the employee with a reasonable accommodation would cause the company to suffer an undue hardship. However, in order to prove an undue hardship and avoid a Texas disability discrimination claim, the employer must provide evidence showing that the accommodation would result in a significant expense or difficulty.Although employees may request a specific reasonable accommodation, employers may provide their own accommodations. The Equal Employment Opportunity Commission (EEOC) looks at various factors to determine whether the hardship is significant or whether the accommodation is appropriate.

When Is Light Duty Considered a Reasonable Accommodation?

Light duty is a malleable term that is applied differently depending on the employment setting. Broadly, light duty is considered to be a type of temporary or permanent work that is less strenuous than an employee’s normal job duties. Light duty can be applied in both physical and mental-health contexts, and it is relative to the particular position.

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