Dallas Employment Lawyer Blog

Mental Health is Wealth: Tap into your resources.

February 10, 2022 | Rob Wiley, P.C.

The death by suicide of Cheslie Kryst was a big wake up call. Mental illness is prevalent amongst Americans now more than ever. According to data collected by Mental Health America, Texas is the second most prevalent state for mental illness. As a Texas employee, you should be aware of the resources available to you.

Historically, many cultures have viewed mental illness as a form of religious punishment or demonic possession. Negative attitudes toward mental illness persisted into the 18^th century in the United States, leading to stigmatization of mental illness, and confinement of mentally ill individuals. As a society, we still have negative views of and oftentimes downplay the severity mental disabilities. In fact, I just watched an episode of the Bachelor where one contestant mocked another because she suffered from ADHD. I was disgusted by such a display of ignorance, but at the same time, was proud that mental health was being talked about on a such a widely televised platform.

I say that to say that although there are individuals who still have negative attitudes toward mental illness, it is no longer a taboo topic that we must be hush hush about. In 2021, approximately 19% of adults experienced a mental illness, which is equivalent to 47 million Americans. In addition, 7.67% of adults reported substance abuse disorders in 2021. Approximately 10.7 million or 4.34% of adults experienced severe suicidal thoughts in 2021. These are just the statistics for adults. Children also experienced high rates of depression, substance abuse, and suicidal thoughts.

Navigating the EEOC Process: Responding to the Employer’s Position Statement

February 4, 2022 | Deontae Wherry

Perhaps you have filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and you have been requested to respond to the employer’s position statement. But, you do not know where to start. You may be asking yourself a few questions such as “What is a position statement?” and “What should be included in my response to the employer’s position statement?”. This article will, hopefully, answer some of your questions concerning your response to the employer’s position statement.

A position statement is the employer’s responsive statement to the claims presented in the employee’s charge of discrimination. It is simply the employer’s opportunity to share its version of the facts. While the EEOC states a position statement should be “clear, concise, and complete,” position statements are often the complete opposite. They are generally inundated with policies that are unrelated to the claims at hand and a host of issues concerning the employee’s performance. However, do not panic—here are a few tips:

1. Read the employer’s position statement in its entirety – The purpose of this step is to ensure that you understand the basis of why the employer feels that it has not violated the law. When employees do not have attorneys, this is usually the first time when the employee learns of the employer’s position.

Cunning companies may try to circumvent Texas’s “conflict of law” rules for non-competes: what that means and what to watch out for

January 27, 2022 | Robert J. Wiley

Summary: This article discusses Texas conflict-of-law rules as they apply to non-compete agreements, and some ways that employers may try to get around those rules.

Various articles we have published address in general what a non-competition agreement is and what is required for one to be enforceable in Texas. But with Texas increasingly becoming a hub for large or even multinational companies, it can be much more confusing for workers to figure out what a non-compete their company insists they sign even means. That is especially true as companies may demand that employment documents be governed by some other state’s laws, or even another country’s.

This arcane choice can have profound consequences. Other states’ non-compete laws may be more protective of employees, or instead may allow an employer to get away with more restrictive limits on you. If you are dealing with a contract governed by some other state’s law, it may be a good idea to consult an attorney licensed in that state. However, even if you are in Texas, you should also ask yourself whether your employment agreement subjects you to another state’s non-compete laws, and what that might mean. This article is meant to give a basic overview of Texas’s so-called “conflict of law” rules when it comes to non-competes, as well as some closely related non-compete pitfalls.

4 Things YOU as a Member of the Texas Military Need to Know

January 20, 2022 | Paige Melendez

The United States, on a nationwide scale, protects military service members in several ways through the Uniformed Services Employment and Reemployment Act or USERRA. One of the ways is to require employers to reemploy service members after their service obligations are completed subject to a couple of extra requirements. But what about the lone star state? The good news is that Texas has laws to protect Texas military forces that track the protections extended to national military forces under USERRA. Chapter 437 of the Texas Government Code is the primary location for these employment protections.

Like most bodies of law, Chapter 437 has multiple provisions that apply to service members, but this article is intended to briefly hit upon 1) who is covered, 2) what that coverage means, 3) how do you become eligible for those protections, and 4) what do you do if your employer isn’t as familiar with the law as you surely will be after you finish reading.

1. Which service members are covered?

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 | Robert J. Wiley

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.