Dallas Employment Lawyer Blog

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 | Robert J. Wiley

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.

When it doesn’t pay to be the boss: the Fair Labor Standards Act’s “Manager Rule”

September 9, 2021 | Robert J. Wiley

Summary: This article gives a brief overview of the problems that the “manager rule” can cause high-level employees trying to raise concerns about pay issues, as well as the limits of that rule.

Categories: At-will; Wrongful termination; Retaliation Claims; Fair Pay; Wage and Hour; Tipped Employees

If your employer turns on you and starts taking actions against you because you raised a complaint protected by law, you may be suffering unlawful retaliation. However, not all laws treat all complaints—and all whistleblowers—the same. As a result, even clear retaliation might not always cross over the line into actually being illegal.

Everything’s Bigger in Texas and the laws are no exception: 666 new laws took effect in Texas on September 1, 2021, including a nearly absolute ban on abortion

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

Well folks, everything is bigger in Texas and our laws and penalties are certainly no exception. Despite the efforts of Texas Democrats to block a voting restriction bill, that bill and 665 additional bills were passed, many of which took effect on September 1, 2021. Here are some of the major new laws that took effect on Wednesday:

“Heartbeat” abortion ban.

One of the major and—undoubtedly most controversial laws—that took effect is the “heartbeat” abortion bill. While many Texans and Americans hoped the U.S. Supreme Court would weigh in on the proposed bill, the Court sat idle, allowing Texas to pass a bill that could prevent the vast majority of abortions in the state, upending nearly fifty-years of established legal precedent. This new law prohibits abortion once a heartbeat is detected in an embryo, which could happen as early as about six weeks, before many women even know they are pregnant.

Employers are using AI in hiring practices. What could go wrong?

July 23, 2021 | Rob Wiley, P.C.

In recent years, Artificial Intelligence (AI) has invaded virtually every industry, from technology on your phone, to cameras at your city’s traffic lights, to drones used by the military. Employment and hiring practices are not exceptions.

AI systems are created by humans and then learn on their own by analyzing data. Over time, an AI system is supposed to improve its efficiency and results. In the employment context, AI is used in most steps of the hiring process, including advertising for the job, scanning resumes and job applications, selecting applicants for interviews, and even analyzing applicants’ facial expressions and behavior during recorded interviews.

Proponents for the use of AI in hiring practices claim it speeds up the hiring process, more accurately identifies the right candidates for the position, and eliminates human bias and subjectivity. In a survey conducted by LinkedIn, 67% of recruiters surveyed said AI saved them time and 43% of them said AI removed human bias from the hiring process. I can agree that AI saves time. But removing bias? Not so fast.

Federal Pandemic Unemployment Assistance Programs Ending: What does that mean for Texans?

June 25, 2021 | Rob Wiley, P.C.

In an unsurprising turn of events, the State of Texas is ending its participation in the federal pandemic unemployment benefit programs early. Jobless Texans will lose access to federal unemployment aid, including a $300 per week supplemental benefit effective June 26, 2021, three months prior to the federal expiration of the programs. More than a million Texans will be impacted when the State stops receiving unemployment benefits under the American Rescue Plan Act (ARPA). The final benefit week that the Texas Workforce Commission (TWC) will pay federal pandemic unemployment benefits under the ARPA is the benefit week ending June 26, 2021.

This decision will end the Pandemic Unemployment Assistance (PUA) program for those who traditionally do not qualify for regular state benefits, such as self-employed and independent contractors, or exhausted all other benefits; Pandemic Emergency Unemployment Compensation Program (PEUC) that extends regular state benefits; and Federal Pandemic Unemployment Compensation Program (FPUC), which provides an additional $300 weekly benefit payment. These programs were created with the CARES Act and were recently extended under the ARPA. However, the caveat is they require the governor’s approval. In other words, if the governor of your state rejects these benefits, you are unable to access them. To no surprise, following pressure from business groups, Governor Greg Abbott declared that Texas will no longer receive any federal pandemic-related unemployment benefits effective June 26, 2021.

Governor Abbot’s decision comes amid a trend of Republican governors announcing plans to cut benefits in order to encourage people to return to work. According to Governor Abbot, “The Texas economy is booming and employers are hiring in communities throughout the state.” Similarly, according to the TWC, the number of job openings in Texas is almost identical to the numbers of Texans who are receiving unemployment benefits.

The (Harmful) Myth of the Perfect Plaintiff

June 18, 2021 | Paige Melendez

A common misconception in employment law is that to be a plaintiff you must have been or are a model employee. This myth prevents many potential plaintiffs from pursuing action against their employers. My aim in this article is to address this misconception and hopefully dispel it.

In its simplest form, employment law boils down to a three-step process: 1) there is discrimination or retaliation, 2) this discrimination or retaliation is because of a protected characteristic or protected activity and 3) an adverse action was taken against the employee as a result. Within this framework there are little details and deviations that cannot be ignored. However, in its simplicity it also showcases how the law does not expect perfection.

For employees experiencing discrimination and/or retaliation, having a disciplinary history may feel like an insurmountable obstacle to any employment claim they may want to pursue. This concern is the fuel that perpetuates the myth of the perfect plaintiff, but as the old adage goes, the devil is in the details.