Articles Posted in Workers’ Rights

When an employee begins work for a new employer, it is likely the employee will be asked to sign an employment agreement. A Texas employment contract acts as a guide to inform both the employee and employer of the other’s rights and obligations. Typically, an employment contract will include the terms of employment and the expectations of each party, as well as the available remedies if either party breaches the contract.

If an employee does not critically examine his or her agreement until after a problem arises, the employee may find themselves in a position where they are bound by what seems to be an unfair contract. For example, it may be that an employee discovers they are required to submit their claim through the arbitration process rather than pursue a claim in a court of law. Thus, the question often arises as to whether a Texas employment contract is enforceable.

Generally, Texas employment contracts are enforceable so long as they comply with the rules of contract formation. Simply stated, this means that a contract must be based on a mutuality of consent, involve the exchange of mutual consideration, and cannot be based on illegal activity. In addition, a contract is only valid if the parties have the mental and legal capacity to enter into the contract. However, even a contract that was validly formed can be deemed unenforceable by a court if the contract is unfair or one-sided.

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The First Amendment of the United States Constitution protects citizens’ right to free speech, assembly, and religion, among other things. However, not only does the First Amendment require people to be able to freely express themselves without fear of criminal repercussions, it also prohibits the government from taking other actions against them.

The First Amendment applies to all government actors, including public employers. In the context of Texas employment law, the First Amendment protects employees who express themselves in a manner that may be frowned upon by their employers. The idea behind retaliation claims is that the First Amendment would have little effect if people were afraid to exercise their rights due to the potential that they could be terminated or demoted.

There are three elements to a First Amendment retaliation claim. First, the activity or speech the employee engaged in must be protected under the First Amendment. This means comments or actions that are obscene, meant to incite violence or defame another will not likely be protected; however, most other speech is protected under the First Amendment.

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Traditionally, a company would arrange to have most of the services needed to run the business performed in-house, meaning necessary services would be provided by employees of the company. However, over the past several decades, the use of independent contractors has skyrocketed. Thus, while independent contractors were historically only found in specific fields, such as construction, photography, and consulting, more industries are hiring independent contractors, including technology companies, law offices, marketing firms, and even medical offices.

As a general definition, an independent contractor is someone who performs work for a company but is not an employee of the company. The definition of an independent contractor can depend on the state in which the company operates. However, in general, the focus of the inquiry is on the amount of control the company retains over the work product and individual performing the work. The more control an employer exercises in how the work is completed, the more likely the worker will be considered an employee. In Texas, the Department of Workforce Services uses a twenty-point comparative approach to determine whether a worker is an employee or an independent contractor. The IRS uses a somewhat similar approach, called the “control test,” which focuses primarily on the amount of control the company retains over the assigned work.

It is essential for a worker to understand his or her relationship with a company and what rights you have. Just because a company labels you as an independent contractor does not make it so; the ultimate determination will be left to the courts.

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Most Texas employees have heard of the National Labor Review Board, or NLRB as it’s more commonly referred to. However, surprisingly few know what the NLRB is or how important the agency is to employees. Very generally, the NLRB protects the rights of employees to organize in pursuit of better wages or conditions. In pursuit of this goal, the NLRB fulfills many roles.

The NLRB is an independent federal agency formed in 1935 with the passage of the National Labor Relations Act (NLRA), which was enacted to “protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices.” The NLRB consists of a five-member board, a general counsel, and dozens of judges in addition to a large support staff spread across its central Washington, D.C. office and 26 smaller regional offices. The primary purpose of the NLRB is to enforce the NLRA.

How Does the NLRB Help Employees?

The NLRB is primarily concerned with protecting the rights of employees to organize. Importantly, the NLRB does not only protect unionized employees, but it safeguards any group of employees that bands together seeking to improve their working conditions or wages. Thus, one of the primary roles of the NLRB is to investigate claims of unfair labor practices that are made by employees to any of the 26 regional offices.

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When an employee is hired, in many, if not most instances, he or she is required to sign some form of employment agreement. These contracts outline the duties and expectations of both the employer and the employee. Frequently, Texas employment contracts include an arbitration clause, which is an agreement between the parties that any dispute arising from the employment relationship will be resolved out of the court system by an independent arbitrator.

For the most part, Texas employment arbitration agreements favor the more sophisticated party. For one, the costs of defending a case in arbitration is lower than a traditional Texas employment case in the court system. Additionally, depending on the terms of the arbitration agreement, certain rules of evidence may not apply. Moreover, an arbitrator’s conclusion is generally final and thus not appealable.

Like other contractual agreements, arbitration agreements can be enforceable if they are voluntarily entered into by both parties, are not overly broad in their scope, and do not provide an unfair benefit to one party. Thus, just because an employee signed an employment contract that contains an arbitration clause does not necessarily mean that the clause will be enforceable. At the same time, an arbitration agreement can be enforced even if the employee does not sign the agreement, particularly if they continue to work knowing that there is an arbitration policy.

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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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