— Workers' Rights Category Archives — Page 2 of 10 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Disability Leaves and the FMLA

March 31, 2023 | Deontae Wherry

Short-term disability, long-term disability, and the Family Medical Leave Act (FMLA) are three types of legal protections for employees who need to take time off from work due to illness, injury, or the need to care for a family member. While these protections may seem similar, they each have unique features and eligibility requirements that employees should be aware of. In this article, we will explore the differences between short-term disability, long-term disability, and the FMLA.

Short-Term Disability

Short term disability (STD) is a type of insurance that provides income replacement to employees who are unable to work due to a non-work-related injury or illness. The duration of STD benefits varies by policy, but typically lasts between three and six months. STD benefits are designed to provide employees with a portion of their regular income while they recover from an injury or illness, allowing them to pay their bills and meet their financial obligations.

When the Ship Sinks

March 2, 2023 | Paige Melendez

When a company files for bankruptcy, the media plasters photos of their “going out of business” signs and empty storefronts to announce that the company could be no more. What is not shown is the complex, often long process of actually filing for bankruptcy. Filing for bankruptcy also comes in different flavors and different factors may help employees’ situations. To give a general idea of how bankruptcy affects employees, below we’ll look at the types of bankruptcy as well as examine the additional factors that may change the outcomes for employees. All in all, the announcement of bankruptcy can be terrifying for any employee that is currently employed by that company, but by learning more about the process it can help employees make more informed decisions.

Beginning with types of bankruptcy, if a company files under Chapter 11, it means that the company may attempt to reorganize and continue operating under court supervision. In this case, the company may have to make difficult decisions such as reducing its workforce, closing unprofitable departments, or renegotiating contracts with suppliers and creditors. The company may also be able to negotiate with labor unions to reduce salaries or benefits temporarily. However, in some cases, employees may be able to keep their jobs or be rehired once the company emerges from bankruptcy.

Another potential filing is under Chapter 7 or where a company is liquidated. Liquidation means that a business’ assets will be sold to pay off its creditors. In this case, employees will likely lose their jobs, and the bankruptcy trustee will use the proceeds from the asset sales to pay any outstanding wages and benefits owed to them. This situation is not ideal, but there’s still another option.

New Year, New Me: Not Tolerating Discrimination This Year

January 19, 2023 | Deontae Wherry

Happy New Year! During this time of the year, many people set new goals for themselves hoping to improve the status quo. I am a firm believer that your environment affects your goals. For instance, a toxic supervisor or a hostile work environment can affect your professional goals. If you find yourself in a hostile work environment, you do not have to suffer in silence. This year, make it your priority to speak up, if you feel you are being subjected to discrimination and/or retaliation.

What does discrimination look like?

Workplace discrimination can appear in many forms. Sometimes, it is open and obvious; other times, it is subtle. But not all discrimination is illegal. Discrimination is only illegal when your employer discriminates against you because of a protected characteristic such as you race, national origin, disability, age, religion, or sex. Discrimination also includes harassment because of a protected activity. If you believe your boss is discriminating against because you like red socks, then that is not unlawful discrimination.

New Decision Gives NLRB Real Teeth to Make Employees Fired for Protected Concerted Activity Whole

January 10, 2023 | Austin Campbell

Summary: This article gives a brief overview of the NRLB’s new Thryv, Inc., decision, and its implications for the landscape of labor and employment law.

The National Labor Relations Act is an often-overlooked part of employment law. The National Labor Relations Board (the agency in charge of administering the NLRA) does far more than govern company-union relations (i.e., labor law). It also protects employees, regardless of union membership, against retaliation for engaging in protected concerted activity regarding the terms and conditions of their employment. This means, for instance, that two or more employees who talk to each other or management about some important workplace issue like wages, safety, or company policies may have legal protection if the company seeks to punish them for “rocking the boat.”

Retaliation like that is a type of “unfair labor practice,” and the NLRB is empowered to make workers “whole” in such situations. That is, to put them in the position they would have been in but for the retaliation, restoring the “status quo.” In the past, for employees that was often limited to backpay (that is, lost wages if they are fired or demoted) and/or job reinstatement. While those are certainly major parts of making someone whole, they may not account for every way in which retaliation can harm someone. For instance, if you were fired in retaliation for concerted activity and had to relocate across the country for a new job, those moving expenses might not have been covered even if you proved retaliation happened.

Last Minute Shopping? Bring Kindness.

December 22, 2022 | Paige Melendez

Whether you are last minute shopping or merely intend to do some shopping during the busiest shopping time of the season, we all know that stores become packed. This includes lines of people longer than normal, harried store associates racing to re-stock shelves and answer questions, and customers becoming less patient. It’s the last symptom that brings forward my trite recommendation for this holiday season: Be Kind. This mantra is used year-round for various purposes – believe me, I too roll my eyes – but in the context of an at-will employee diligently working during the winter, it makes sense to be reminded and here’s why. In my last blog I looked at how holiday hours are only beneficial if you can and do work overtime hours. This blog is about how workers are treated during those busy holiday hours by customers and store management.

If you have ever had to work in any kind of customer service position or retail job, then you are aware that the holiday season brings a type of dread with it. Most customer service based positions and almost all retail positions are hourly employment jobs and deemed to be at-will. At-will employment in Texas means that there is no job protection for these workers, and they can be fired for any reason or no reason at all. For example, take Rhonda – a cashier – putting in her very best efforts, battling the long lines of patrons and getting them through the checkout line as quickly as she possibly can. Drake, her manager, who is upset at how many customers are complaining during the holiday season, may not care about Rhonda’s best efforts. All he hears and cares about are the customers complaints over the predictably long lines. After being on her feet all day, and even working overtime hours with the store staying open late, Rhonda could be fired. Rhonda would have no recourse if her unreasonable manager terminated her employment for a legitimate non-discriminatory reason like customer complaints about long lines in front of her cash register.

Aside from her manager’s obtuse lack of understanding about the holiday shopping season, Rhonda may feel some modicum of relief at being relieved of her job duties. It may be shocking to think that someone losing their job during the middle of the holiday season would have any benefits, but the silver lining for Rhonda may be the fact that she no longer has to put on a happy face as customers continually berate her.

Gig workers: Employee or independent contractor?

December 19, 2022 | Haylie Davis

In October, the Biden Administration issued a highly anticipated proposal on how it will approach independent contractor status under federal wage law. The proposal, released by the US Labor Department, clarifies when workers should be classified as independent contractors or be classified as employees who are afforded many more rights, such as full minimum wage, overtime, and other protections provided under the Fair Labor Standards Act.

This is a potential game changer for millions of gig workers, who are often classified as independent contractors. This includes the quintessential Uber drivers and food delivery app drivers, but construction and agriculture have some of the largest representation of independent contractors in the country.

When this was announced, gig companies such as Uber Technologies Inc. and Lyft Inc. worried about what this will do for their company, as stock prices took a tumble after the announcement. These businesses say their operating costs would skyrocket if they were broadly required to reclassify their independent contractors as employees, due to the tax liabilities and minimum wage, labor, safety, and other legal requirements that apply to employees.

Am I Exempt or Non-Exempt from Stacks of Holiday Green?

December 5, 2022 | Paige Melendez

During the holiday season around my college campus, there was “common knowledge” that one of the biggest benefits of working retail on holidays like Black Friday was that you’d be entitled to time and a half solely because you worked on that day. Cut to becoming an employment lawyer and it’s time to debunk that myth. There are a few things that factor into working during the holiday season, which traditionally kicks off with Thanksgiving and more importantly, Black Friday. The first is whether a non-exempt employee can be forced to work on a holiday, then whether there are any additional benefits to working on a holiday that may make it worth it, and finally whether an exempt employee has access to these same considerations.

For starters, when I use the phrase “non-exempt” and “exempt” I am referring to the Fair Labor Standards Act (FLSA) denotation for employees who are entitled to overtime (and therefore “non-exempt”) and employees who are not entitled to overtime (and therefore “exempt.”) We are going to focus on non-exempt employees because that’s where the myth of extra pay originates. Turning to whether non-exempt employees can be required to work on a holiday like Thanksgiving or a federally recognized holiday, the short answer is: unfortunately, yes. The FLSA does not require employers to give employees days off even on a federally recognized holiday. Individual employers, of course, can decide to have truncated days or allow employees to request those days off, but there is no law requiring them to do so. There are a few exceptions to that rule, and they mostly involve employees that are allowed to have days off because of a different allowance like observing a religious holiday or where there is a collective bargaining agreement (union contract with employer) that allows those days off. Without an exception, the non-exempt employees are at the mercy of their employers. (There’s also that meme that says requests for days off are simply polite notices of non-attendance, but I would not recommend that strategy.)

Next, we turn to the myth that started it all: employees get paid extra to work on holidays. This myth is both true and false like all good myths. The true part is that if working on Black Friday pushes non-exempt employees over the 40-hour threshold, employers are then required to pay time and a half like any regular overtime. The false part is that there is no requirement under the FLSA that says employers must pay workers time and a half simply for working on a holiday if those hours do not count for over 40 hours. Therefore, it can be beneficial for employees to work on holidays because the hours are longer and more likely to net overtime pay, but there is no benefit just by working on a holiday.

Are Americans working later and later in life, and what does this mean for them?

November 21, 2022 | Austin Campbell

Summary: This article briefly looks at the trend of the aging workforce—sensationalized or real? It also touches on some of the positive and negative impacts of that potential trend.

In the last decade or so, the media has begun talking about the so-called “graying” of the American workforce—the idea that people are working later in life and retiring later, if at all. Sometimes this is talked about in almost apocalyptic terms when it comes to productivity and benefits. First, this article touches on the actual extent to which that is true. Second, because a lot of coverage of this phenomenon seems to be from a “macro” (i.e., employer’s) perspective, this article briefly explores some of the implications of that trend for the workers’ themselves.

First of all, this is a real trend: the U.S. Bureau of Labor Statistics estimates that the share of the workforce age 75 or over will almost double by 2030. This is in large part driven by the Baby Boomer generation. However, in absolute terms this “problem” may be bit overblown by the media: those same projections say the share of the workforce in the 55-74 age bracket will actually decrease by 2030, and even the 75+ age bracket will be less than 12 percent of the workforce by 2030. In addition, while the average age of retirement is going up, it is doing so slowly, creeping up by approximately 3 years since the early 1990s. Life expectancy overall has been increasing, though not during the pandemic years; it remains to be seen if the upward trend in that resumes. Though not some immediate existential threat, this aging of the population likely will put increasing pressure on our social safety nets.

State Employers Are Not Immune from USERRA Lawsuits

July 8, 2022 | Deontae Wherry

In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) which protects military service members and veterans from employment discrimination because of their military service. USERRA requires that employers allow service members to regain their civilian jobs following their military service. Many states like Texas have implemented state laws that also protect service members at the state level.

Although one would believe Texas understands the importance of protecting our military service members, since it has passed laws to protect them, Texas has been fighting to protect itself from liability under USERRA. Texas’ long battle has now come to an end, and now service members can sue state employers if they violate USERRA.

Le Roy Torres served our nation since 1989. In 2007, Mr. Torres was deployed to Iraq, and unfortunately, while on duty, Mr. Torres was severely burned and developed a respiratory condition that made it difficult to breathe. As a result of his respiratory condition, Mr. Torres was no longer able to continue his job as a state trooper. He then asked the Texas Department of Public Safety (“DPS”) to accommodate him by reemploying him in a different role. DPS refused, so Mr. Torres sued DPS in state court.

Tuesdays should be the New Monday

June 23, 2022 | Paige Melendez

The newest shockwave to hit employment customs is the murmurs of a four-day workweek. In fact, Iceland recently declared their experiment with the four-day workweek a success. Belgian workers won the right to a four-day workweek in February, and the United Kingdom has set up a trial run that began this month with about 70 companies volunteering. Further, other countries are looking at the European peninsula to see how their experiment goes to consider instituting the shortened workweek. So, how could we get a four-day workweek in the United States?

The first way is obvious but unlikely. Either the House or Senate would have to draft a bill that mandated a four-day workweek for all businesses. Then, the bill would go to the opposite chamber of Congress before a final agreed upon draft was sent and signed by the President. The chance of a bill of this magnitude, with the potential to cause ripples throughout all levels of industry and business, wading through the stagnant pond of Congress is low, so we turn to a second method.

The second method has a greater likelihood, and it involves rallying all your coworkers during lunch to discuss how much you want to only work for four days. If multiple people agree, then you can be designated as a spokesperson for the group and approach your boss on their behalf to ask that a four-day workweek be considered for multiple reasons like everyone hates Monday anyways, Tuesday is the new Monday, and no one actually works on Friday. Be sure to also mention that a four-day workweek has been linked to boosted worker morale and productivity in the workplace, which would in turn help businesses. The positive of this method is that under Section 7 of the National Labor Relations Act, approaching your boss like this is considered protected speech about the terms and conditions of employment.