— Workers' Rights Category Archives — Page 8 of 10 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Employment Protections for Texas Veterans with Disabilities

January 2, 2019 | Law Office of Rob Wiley, P.C.

Veterans returning to the United States may face many challenges while trying to adjust to civilian life. Unfortunately, many veterans face employment discrimination, and they may have difficulty obtaining and maintaining employment. Often, employers are reluctant to hire individuals who suffer from disabilities related to their deployment. This can have startling consequences for the workforce, since almost a third of the 12 million veterans report having some type of disability.

In response to the rising reports of employment discrimination, Congress enacted the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA). At its inception, the VEVRAA provided Vietnam veterans with protection against employment discrimination. Some common forms of employment discrimination veterans face are when an employer claims a job is no longer available, an employer states they do not want to hire veterans for fear of future deployments, an employer counts military leave against accrued vacation time, or an employer harasses or otherwise retaliates against a service member.

Although the name suggests otherwise, the VEVRAA protections apply to several categories of protected veterans. Protected veterans include those who were:

Released from active duty because of a service-connected disability or entitled to compensation under the Veterans Administration;
Recently released;
On active duty; or
Campaign or Armed Forces medal recipients.

Employee or Independent Contractor: What’s the Difference and How Do You Know?

December 13, 2018 | Law Office of Rob Wiley, P.C.

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.

What Is the NLRB and How Does It Affect Texas Employees?

December 5, 2018 | Law Office of Rob Wiley, P.C.

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.

Are Arbitration Clauses in Texas Employment Contracts Enforceable?

November 28, 2018 | Law Office of Rob Wiley, P.C.

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.

Can a Texas Employer Require Employees to Pool Tips?

October 25, 2018 | Law Office of Rob Wiley, P.C.

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.

What Is Reverse Discrimination and Is It Legal in Texas?

October 19, 2018 | Law Office of Rob Wiley, P.C.

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.

Why Employees Should Avoid Arbitrating Their Texas Employment Law Cases When Possible

October 10, 2018 | Law Office of Rob Wiley, P.C.

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.

Can an Employer Search an Employee’s Cell Phone?

September 24, 2018 | Law Office of Rob Wiley, P.C.

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.

Employee Protections When Discussing Texas Workplace Grievances

September 13, 2018 | Law Office of Rob Wiley, P.C.

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.

Mediation in Texas Employment Discrimination Lawsuits

August 30, 2018 | Law Office of Rob Wiley, P.C.

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.