Dallas Employment Lawyer Blog

Lights, Camera Action: Get Your Popcorn Ready – The Supreme Court is Back in Session and COVID-19 is on the Agenda!

January 6, 2022 | Rob Wiley, P.C.

Employment issues will again take center stage at the U.S. Supreme court on January 7, 2022, and appeals related to vaccine mandates are sure to be the main attraction. Alas, vaccine mandates will be squarely before the Court and audiences nationwide will soon receive some clarity from the nation’s highest Court regarding vaccine mandates in the workplace.

Enforcement of the Biden Administration’s vaccine mandates applicable to government contractors, CMS and large employers had been stayed or partially stayed by various federal courts. The OSHA Emergency Temporary Standard (ETS) applicable to most employers having 100 or more employees was stayed by the Fifth Circuit Court of Appeals prohibiting enforcement of the rule. However, on December 17, 2021, the Sixth Circuit Court of Appeals, which was chosen by lottery to hear the consolidated appeals challenging the ETS, dissolved the stay that the Fifth Circuit put in place. Thus, employers with 100 or more employees that are not specifically exempt from the standard due to disability or religious belief must now take steps to comply with the emergency rule. Judge Stranch delivered a gripping opinion addressing the question that has been vexing employers since the beginning of the pandemic:

Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

Federal employees, the MSPB, and what to do if “the Man” won’t honor its word.

December 16, 2021 | Austin Campbell

Summary: This article gives a very brief overview of what you can do if you are or were a federal employee, settled an MSPB appeal with the government, and are now concerned it is breaching its agreement.

Say you’re a federal employee who, unfortunately, had to file an appeal with the Merit Systems Protection Board (“MSPB”). Perhaps you were improperly reduced in grade, removed from your position, or you were subjected to a prohibited personnel practice. A final hearing before an Administrative Law Judge (“ALJ”) with the MSPB may be the way to fix the situation. Other times, before the hearing you and the federal agency you work(ed) for may be able to work out some deal to put an end to the situation, like them reinstating you, paying you lost wages, agreeing not to sabotage your career, or the like.

You might or might not have an attorney at that time. That deal may be great on paper (and it should always be in writing!), but what happens if your employer refuses to do what it said it would do? That sort of thing is not necessarily common, nor is it unheard of. Unfortunately, there are federal agencies that have problems with a culture of retaliation.

Texas v. New York: Which state offers more protections to employees? The answer will not surprise you.

December 2, 2021 | Rob Wiley, P.C.

It is no secret that in the past few years companies have been moving their principal places of business from progressive states, like California or New York, to Texas. Texas has been known as a “business-friendly” state, and for good reasons. Among other things, Texas has a healthy economy, a prime location in the center of the country, no state income tax, and affordable cost of living.

One major factor that doesn’t receive much publicity is Texas’s far less-restrictive labor & employment laws. After all, a company relocating thousands of its employees to work in Texas means a lesser risk of violating more restrictive laws in states like California or New York.

So how is Texas different from other progressive states when it comes to employee rights? To answer this, let’s explore some of the labor & employment laws of the state of New York.

Holiday Cheer and Termination Fear: Can I be fired for my behavior at a work holiday party?

November 18, 2021 | Rob Wiley, P.C.

It’s the most wonderful time of the year. Love them or hate them, this is the time of the year during which employers are finalizing holiday party plans. After a long pause on holiday parties due to Covid-19, many employers are gearing up for their first holiday party since the pandemic. Work holiday parties are a time for employees to get together, socialize, and celebrate a year well done. This is your opportunity to shake hands with the movers and shakers. However, holiday parties are notoriously known to pose serious risks for employees, especially if alcohol is served.

Let’s address the big Texas elephant in the room. Texas is an “at-will” state. That means your employer can fire you for no reason or any reason, short of unlawful discrimination or retaliation. In Texas, termination caused by your actions at a work holiday party is no exception to the “at-will” rule.

Following the holiday season, I typically notice an increase in consultations from employees who were terminated based on their behavior at a holiday party or who were either sexually harassed or discriminated against at a holiday party. A typical misconception is that your behavior and your employer’s behavior at a holiday party is not subject to workplace polices or procedures or employment laws. However, you are still subject to workplace policies and your employer is still subject to labor and employment laws, regardless of whether the party is held at work or off-site.

Strategize your Resignation

November 11, 2021 | Paige Melendez

For employers and employees alike it is becoming apparent that there is a trend of employees leaving their workplaces. In Texas, the at-will doctrine allows an employee to leave for any reason or no reason, but sometimes resignations can be a bit more complicated. For employees it is complicated because resignations can be and should be used strategically rather than a simple decision to leave a job. To use a resignation strategically, there are a few things to consider and think about before pulling the plug.

First and foremost, leaving a job can evoke questions about eligibility for unemployment benefits. In Texas, resignations, except for narrow exceptions related to “good cause connected with the work,” can be fatal to an application for unemployment benefits. While every case is different, resignations likely spell the end for unemployment benefit eligibility. Yet, it ultimately comes down to the Texas Workforce Commission’s decision. Therefore, if unemployment benefits are part of the financial planning underpinning a resignation, it is important to keep this in mind.

If unemployment benefits are not a concern or can be overlooked, then resignation becomes a good option to leave an employer on amicable terms. Outside of a contractual obligation, there is generally no notice period requirement on resigning. Nonetheless, there are practical steps to take before submitting a notice of resignation to protect your best interest. By way of example, medical procedures that can be done while health insurance coverage is still fully paid by your employer, figuring out finances in case you cannot find a different job, how a resignation might look at your next employer, and finally, contractual obligations. The contractual obligations can be tricky and are typically governed by an employment contract that an employee signed at the beginning of employment. Contracts that govern resignations or leaving a job without cause sometimes have requirements like a notice period, a method of giving that notice like certified mail to a specific address, or even set out specific information that needs to be in a notice. Some contracts even have promises of severance.

The Vaccine Mandate

November 5, 2021 | Deontae Wherry

COVID-19 has dictated much of our daily activities over the last 20 months. It seems that COVID-19 is not going away anytime soon neither is the vaccine mandate. Yesterday, President Biden’s administration fulfilled its promise that it would take more aggressive steps in getting more Americans vaccinated. The administration announced additional vaccine mandates affecting more than 100 million workers. In this article, I will explain what this mandate means for employees.

Coverage

The purpose of the COVID-19 mandate is to minimize the risk of COVID-19 transmission in the workplace. This mandate does not apply to every company; instead, this mandate applies to private companies with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, and federal contractors. If you work at one of these entities or you are a federal contractor, this mandate applies to you. However, private companies with fewer than 100 employees may still mandate the vaccine as a condition of employment. One clear distinction of this mandate is that it does not apply to employees of a covered company who work exclusively outdoors, or from home.

Give me a Break: Are Texans entitled to Lunch breaks?

September 30, 2021 | Rob Wiley, P.C.

Aside from New York’s magnificent architectural treasures and California’s amazing weather and beautiful beaches, what sets these two states apart from Texas? New York and California have strict requirements for employers to provide meal and rest breaks to employees, while Texas does not.

Under Texas law, there is no requirement for employers to provide meal breaks to employees. Similarly, the federal Fair Labor Standards Act (“FLSA), does not mandate meal breaks. Thus, Texas employees are not entitled a meal break.

However, the FLSA requires employers to provide nursing mothers reasonable break times, usually about 30-minutes, to express breast milk, or if children are allowed in the office, to nurse their infants, during the first year after the baby’s birth. This requirement only applies to non-exempt employees (i.e., those who are entitled to overtime pay for overtime work), and it exempts employers with less than 50 employees if it causes an undue hardship for the employer to provide such breaks.

What employment law can tell us about the radical concept of standing created by Texas’s new abortion law

September 23, 2021 | Austin Campbell

One of the more esoteric (arguably boring) concepts in law is the idea of “standing”—that is, what kinds of disputes the Constitution allows courts to consider, and who can bring them. To put it another way, “standing” is about whether someone is allowed to sue someone else in the first place. However, standing to sue is often directly tied to whether someone’s rights are protected by law.

The new abortion law that took effect in Texas on September 1, 2021, is controversial for many reasons. This article focuses on just one of those reasons: the law is enforced through a “bounty” provision that may allow anyone, anywhere, to sue someone for knowingly aiding or abetting—or even just intending to aid or abet—an abortion more than six weeks into a pregnancy. The plaintiff in that situation can win a bounty of $10,000 plus costs and attorneys’ fees. This article places that provision in context with the rules of standing for qui tam whistleblowers and other employment claims to point out just how much of a sea change it represents.

In the 1992 Lujan v. Defenders of Wildlife decision, the U.S. Supreme Court explained that in order for someone to have standing to sue, they must (1) have suffered a concrete and particularized “injury in fact” to some sort of legally-protected interest; (2) that injury must be “fairly traceable” to the actions of the party being sued; and (3) it must be likely that the court could do something to redress that injury.

Don’t Move the Goalpost

September 16, 2021 | Deontae Wherry

As a young athlete, I remember the phrase, “Don’t move the goalpost.”

The phrase is often used in sports to describe changing the criteria, or goal, while the game is still in progress. Outside of the sports arena, the phrase is commonly used as a metaphor when the goal is changed after someone has begun an act or process in an attempt to reach said goal. It may be perceived that a person is placed at an advantage or disadvantage when the goal is changed. Now as a lawyer, sometimes I find myself saying, “Don’t move the goalpost.”

As the client, you set the goals for your case. This is where you tell your attorney what your desired outcome is. If you don’t know what your options are, ask your attorney to walk through the potential outcomes. In many employment law cases, employees want a severance for lost wages, a neutral reference for prospective employers, a reasonable accommodation for a disability, or reinstatement of an old position. This is not an exhaustive list, but represents some of the common goals that clients desire. Be sure to sit down with your attorney to discuss all your options.

Vaccine Gate: President Biden’s sweeping vaccine mandate could impact nearly 100 million Americans.

September 10, 2021 | Rob Wiley, P.C.

Rasha Zeyadeh writes about Biden’s vaccine mandate for large employers in NewsBreak:

“President Biden’s new sweeping vaccine mandate could impact more than 100 million Americans. Federal employees have 75 days to get the Covid-19 vaccine or face termination. Private employers with 100 or more employees must require employees to either get vaccine or to submit to weekly testing. Private employers who do not comply with the mandate could face hefty fines for each violation. Disability and Religious exemptions are the only way around Biden’s mandate.”

Ms. Zeyadeh represents employees in Dallas, Texas.