Dallas Employment Lawyer Blog

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.

A false dawn for unions in 2022?

June 16, 2022 | Austin Campbell

Summary: This article touches on some of the complex issues surrounding the apparent boom in unionization—will this be a sea change or just temporary? What are the implications of recent union victories in major multinational companies?

There have been high-profile union victories in the news lately for the employees of major multinational companies, particularly Amazon and Starbucks. The National Labor Relations Board (“NLRB”), which oversees union elections and investigates “unfair labor practice” claims, has also gone to bat recently against those same companies for numerous allegedly unlawful tactics they engaged in during union elections. It could be that unions are on the verge of a renaissance in the face of the “great resignation” causing a shift in the power dynamics between employees and employers. Indeed, unions are more popular with the public now than they have been in generations.

Is 2022 just a blip, or the sign of something more? What are the implications of, and obstacles to, an increase in unionization? This article will briefly touch on these complex topics.

Job Burnout is Real. Just Ask Facebook.

June 9, 2022 | Rob Wiley, P.C.

Earlier this month, Sheryl Sandberg announced her resignation from Facebook parent Meta Platforms, Inc. Her departure was a surprise to many people. Ms. Sandberg was the Chief Operating Officer of one of the biggest and most powerful companies in the world. She was the primary reason why Facebook scaled from a company with $153 million in revenue and 500 employees in 2007 to its current size, with more than 77,000 employees.

This past week, the Wall Street Journal reported that Ms. Sandberg decided to leave Meta after a years-long process of battling job burnout. She felt like she had become a punching bag for the company’s problems and that she was targeted in a way that would not happen to a man, according to the Journal. This caused Ms. Sandberg to become disconnected from the business and less visible publicly.

In a way, Ms. Sandberg’s departure shouldn’t have been surprising. The writing was on the wall. Job burnout is real and it’s becoming more prevalent. It can happen to anyone at any level, like Ms. Sandberg, who earned $35.2 million in 2021 and has a net worth of $1.6 billion.

Third Party Retaliation

June 6, 2022 | Deontae Wherry

Suppose both husband and wife, Mr. and Mrs. Johnson, have worked for Democan in the marketing department for 15 years. The couple loves their job because they can help their pastor with his re-election campaign. For most of their career, the couple has reported to the marketing director, Joe Abbott. Mr. Abbott retired seven months ago. Democan then hired Donald Paxton as the new Marketing Director.

Since his first day, Mr. Paxton has had a crush on Mrs. Johnson. Mr. Paxton waits until Mrs. Johnson is alone then he approaches her in the backroom and begins to caress her body. Mrs. Johnson tells Mr. Paxton to stop as his actions were unwelcomed and made her uncomfortable. Mr. Paxton continued with his actions, and Mrs. Johnson continued to ask him to stop. Mrs. Johnson had enough, so she engaged in protected activity by filing multiple sexual harassment complaints with human resources. Human resources did nothing. By this point, Mrs. Johnson feared going to work, so she decided that her only option was to file a charge of discrimination (“charge”) with United States Equal Employment Opportunity Commission (EEOC). After she filed with the EEOC, she notified human resources and Mr. Paxton that she formally filed a charge with EEOC.

Mr. Paxton called Mr. Johnson into his office and asked Mr. Johnson if he would instruct his wife to withdraw her charge of discrimination. Mr. Johnson refused. The following day, Mr. Paxton wrote up both Mr. and Mrs. Johnson for insubordination. They asked Mr. Paxton how they were insubordinate, and Mr. Paxton had no response. The following week, Mr. Paxton terminated Mr. Johnson for eating chips at his desk. Mr. Johnson does not believe Mr. Paxton terminated him for eating chips because his other colleagues were eating chips at their desk as well. Mr. Johnson believes that he was terminated because his wife filed a charge.

Statute of Limitations Laws: The Clock is Always Ticking.

April 28, 2022 | Rob Wiley, P.C.

Time does not stop for anyone. There are time limits for filing claims against your employer. In fact, state and federal claims have different deadlines for different types of claims. When pursuing a claim against your employer, it is important to note the statute of limitations for the claim you intend to pursue. The biggest mistake I see employees make is waiting too long to pursue a claim. If the statute of limitations for your claim has expired, you will not be able to pursue your claim – even if you have a strong claim. There’s no way around it. Below are some of the most common employment-related claims and each claim’s respective statute of limitations.

Discrimination, Harassment, Sexual Harassment, Hostile Work Environment, and Retaliation.

Claims of discrimination, harassment, sexual harassment, hostile work environment, or retaliation under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990, must first be filed with the United State Equal Employment Opportunity Commission (“EEOC”). A complaint with the EEOC must be filed within 300 days of the adverse employment action. An adverse action can range from a write-up to termination. If you do not file a charge of discrimination or retaliation with the EEOC within 300 days of the adverse action, you lose the right to pursue your claims in court.

The Good News and Bad News about Owing Money to the TWC

April 21, 2022 | Paige Melendez

At first glance, describing owing a debt in any way “good” seems erroneous, but most debts cannot be appealed. For the Texas Workforce Commission or TWC, overpayment decisions that state that a claimant for unemployment benefits has been overpaid and now owe that money back are not out of the ordinary. Typically, overpayment notices occur when a claimant has lost their appeal to qualify for unemployment benefits or the initial claim is found to be invalid. In TWC land, practically everything is appealable and the same is true for overpayment notices. And that is what creates the good news. If you have received an overpayment notice saying your unemployment benefits were overpaid, you have that same 14-day window to submit your appeal either for the overpayment itself or for the issue that resulted in an overpayment.

To appeal the overpayment determination for federal extended unemployment compensation, the TWC looks at whether the payment was made non-fraudulently, the overpayment was not the fault of the claimant, and that forcing a claimant to repay the amount would go against equity and good conscience. Within those categories the TWC considers things like whether a claimant received benefits even though they knew they were not eligible, whether the overpayment was a result of a decision on appeal, or whether financial hardship will befall the claimant if they are forced to pay it back.

The bad news is that if you lose the appeal or do not appeal within the allotted time, then you will owe money to the TWC. This could cause you to likely pay back most, if not all, the benefits that were paid out to you as unemployment. As a preliminary matter, if you have the ability to do so, there is the option to simply pay back the amount. That path is not available to a lot of claimants, which puts the situation into the bad news column. But wait, there’s good news in that, too! Thankfully, the TWC allows claimants who were overpaid to setup payment plans in certain situations, so there could be an option to not pay it back all at once. On the whole, owing money to the TWC seems like it is all bad news, but the ability to appeal the determination brings some positives to the situation. However, unemployment benefit overpayment notices can be tricky, so speak to a Dallas Employment Lawyer to see what your options are to appeal an overpayment or unemployment benefits determination.

The limits of the duty to preserve evidence in Texas

April 14, 2022 | Austin Campbell

This article gives a brief overview of when and to whom a duty to preserve evidence applies under Texas law, and discusses why it is usually important to clearly put your employer on notice as soon as possible if you have a legal claim against it.

Many times when someone first hires a lawyer to pursue an employment claim, they ask about getting information or evidence from the employer. Despite how the media present things, there generally is no legal requirement for an employer to turn over any information whatsoever to a current or former employee, even under threat of a lawsuit. Texas rules generally allows so-called “pre-suit discovery” in limited circumstances, like to preserve information or testimony that might otherwise be lost (for example, by the death of a witness).

Usually then, an employee has to file suit and then conduct formal discovery to actually get information from their employer related to their claims. If, by that time, that evidence is conveniently gone, what a plaintiff might be left with is only seeking remedies after the fact for “spoliation,” or the unlawful destruction of evidence. Courts may penalize a party that destroys evidence in various ways, such as by instructing a jury to conclude that the destroyed evidence was exactly what the other party says it was, assessing monetary penalties, or even dismissing legal claims brought by the responsible party. Generally, the more unreasonably the party that destroyed evidence behaved, the worse the penalties.

It’s My Spouse, I’m Leaving

April 8, 2022 | Deontae Wherry

In 1993, Congress passed the Family Medical Leave Act (“FMLA”) which provides employees the right take medical leave for (1) the birth of a child or to bond with a child, (2) the placement of a child for adoption or foster care, (3) a serious health condition that prevents the employee from his or her job, and (4) the care of the employee’s spouse, son, daughter, or parent who has a serious health condition. In this article, I will focus on the definition of “spouse”, the expanded definition, and highlight FMLA’s key provisions.

“Spouse” was initially based upon the traditional definition of marriage being between a husband and a wife. Put simply, a spouse was only a person who was married to a person of the opposite sex. As society continued to change, this impacted many employees’ ability to care for their significant other or spouse. For example, employers were not required to return the employee to his/her position and could retaliate against them if the employee requested medical leave to care for a person of the same sex with a serious health condition because this was not a FMLA qualifying reason.

After the Supreme Court’s decision in United States v. Windsor, the Department of Labor (“DOL”) expanded the definition of spouse to include same sex marriage. While this appeared as a victory for same-sex marriages, it had its own limitations because it only recognized same-sex marriages for employees that lived in states that recognized same sex marriages. This affected employees in states like Texas where same-sex marriages were not recognized.

Ramadan 2022 is Here: Do I Qualify for a Religious Accommodation?

March 31, 2022 | Rob Wiley, P.C.

The Muslim holy month of Ramadan is observed by 1.6 billion people around the world. Practicing Muslims will be fasting from dawn until dusk (approximately 6 a.m. to 8 p.m.) beginning on April 2, 2022 and ending on May 2, 2022. Fasting means no food or liquid of any kind. Yes, that includes water! Ramadan is meant to be a time of spiritual discipline – of deep contemplation of one’s relationship with God, extra prayer, increased charity and generosity, and intense study of the Quran. It is a joyous month meant to be shared and celebrated with loved ones.

Fasting during Ramadan is one of the five pillars – or duties – of Islam, along with the testimony of faith, prayer, charitable giving, and making a pilgrimage to Mecca. The practice of fasting is intended to be a reminder of human frailty and dependence on God for sustenance. It reduces the distractions of life to allow time to focus on our relationship with God. Importantly, it provides an example of the hunger and thirst the poor experience, which is intended to encourage empathy for and charity to the less fortunate.

During Ramadan, it is not unusual for Muslims to be up past midnight for prayer and then get up around 5 a.m. to eat the first meal of the day, which must last until sunset. This means lots of high-protein food and drinking as much water as possible until dawn, after which we cannot eat or drink anything. At dawn, Muslims will perform their first prayer of the day, followed by four additional mandatory prayers throughout the day and an optional late-night prayer, which is typically only preformed during Ramadan. Many Muslims, myself included, are typically more devoted to their prayers during this month and try to set time aside throughout their day to timely complete each of the five scheduled daily prayers. For me, that means blocking time on my work calendar to ensure I am not scheduled for meetings or appointments during the various prayer times that fall within work hours.

Why Judicial Elections Matter in 2022

March 10, 2022 | Austin Campbell

Summary: This article gives a rundown of judicial elections in Texas: what they are, what positions are up for a vote, and why you should care about them.

Although many states elect at least some of their judges, as of 2020 Texas is one of only six states to run partisan (party-based) elections for all state judicial positions. If you were one of the 17 percent of Texans who voted in the March primary for the 2022 midterm elections, like me you probably encountered several pages of candidates for all sorts of judicial positions in your county and across the state. All kinds of judges, justices—and something called a “justice of the peace”? Some of the candidates were unopposed in their primaries and might even run unopposed in the general election, while other races had 3 or 4 candidates competing. Perhaps the information overload of all these judicial elections is one reason for Texas’s incredibly low primary turnout.

This article is meant to give a basic overview of some of these judicial positions, and to discuss why you should care about them.