Dallas Employment Lawyer Blog

“Judicial Estoppel”: When bankruptcy is more than just a financial obstacle to protecting your rights as an employee

January 22, 2021 | Robert J. Wiley

Usually when your employer has done something illegal to you, it hits you directly in the pocketbook. For example, maybe your employer illegally denied you an earned bonus, failed to pay overtime you were owed, or fired you in retaliation for a protected complaint. Often that loss of income can put you as the employee in a precarious financial position. Unfortunately, you might have no choice but to declare bankruptcy.

The intersection between employment law and bankruptcy law can be complex and unintuitive; a full explanation of it is beyond the scope of this article. However, bankruptcy can impose legal—not just financial—barriers on your ability to protect your rights as an employee. This article is meant to put employees on notice of some steps they can take in a bankruptcy situation, to reduce the chance of losing their ability to vindicate their rights and recoup their economic losses.

The Texas Whistleblower Act: To blow the whistle or not to blow the whistle? That is the question.

January 15, 2021 | Rob Wiley, P.C.

The Texas Whistleblower Act prohibits a state or local government entity from taking adverse personnel action against an employee “who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” The two most important considerations when determining whether a violation of the Texas Whistleblower Act occurred are: (1) whether you acted in “good faith” which means that you believed the conduct you reported was a violation of law and your belief was reasonable; and (2) whether you reported the violation to an appropriate law enforcement agency which is a government entity you believed is authorized to either enforce the laws or investigate or prosecute a violation of criminal law. For instance, an internal report of illegal activity to someone else within the public entity (supervisor/HR) is not typically a report made to an appropriate law enforcement authority.

Hostile work environment and workplace harassment—how far can my boss go?

January 8, 2021 | Rob Wiley, P.C.

“Hostile work environment” and “harassment” are probably two of the most common terms I hear in my everyday practice. Both terms are generally interchangeable under the law and mean the same thing. Workplace harassment takes different forms such as being subjected to yelling, bullying, intimidation, ridicule, belittlement, false accusations, and profanity. Because Texas is an at-will employment state, however, not every harassment is illegal. In fact, most forms of harassment are legal.

There are a few requirements for the harassment to be illegal. First, it must be discriminatory—meaning that it must be based on a protected characteristic, like race, color, religion, sex (including pregnancy), sexual orientation, national origin, age, disability, or genetic information. If the motive behind the harassment is something else that is not protected, like personal hatred or big egos, then the harassment, no matter how awful, is not illegal (with a very narrow exception discussed below).

Are English-only Workplaces Illegal?

January 1, 2021 | Deontae Wherry

One of the greatest benefits of our nation’s growth is the diversity that comes with growth. It is undisputable that more and more individuals are calling America home. As a result, the workplace is becoming more diverse and more employees are speaking other languages than English. According to the Center for Immigration Studies (“CIS”), more than 67.3 million residents in the United States now speak a language other English at home. CIS found that this number more than doubled since the 1990s. Texas ranks among the leading states that has a large share of residents speaking a foreign language at home. I expect these numbers to continue to increase exponentially in the decades to come.

Baby It’s COVID Outside: Emergency Paid Sick Leave for the New COVID-19 Spikes

December 25, 2020 | Paige Melendez

The weather is getting colder and nationally, the United States is experiencing a new spike in COVID-19 cases. The country is trying to jump multiple hurdles all at the same time and one of them happens to be dealing with the new increase in people contracting the virus. Thankfully, the legislation that dealt with the first wave of the virus is still here to help supply leave due to sickness. The “Families First Coronavirus Response Act” or FFCRA provides relief to anyone who falls ill because of COVID-19 between now and December 31, 2020 when the Act expires. This short window of application may be extended or replaced by further legislation, but whether that will occur before the deadline passes is unclear. However, it is still worthwhile to examine what mechanisms are in place to deal with sick leave currently. One mechanism that Congress added as part of the FFCRA is the “Emergency Paid Sick Leave Act” or EPSLA. EPSLA gives paid sick leave to certain employees if they fall ill or are caring for someone who falls ill from COVID-19. To determine whether EPSLA covers you, we have to ask 4 main questions: 1) Are you an employee who EPSLA covers; 2) Is your employer required to give you paid sick leave under EPSLA; 3) How much leave can you take and what does that leave look like; and 4) What are your options if you think your employer is violating EPSLA. Each question will be addressed in turn.

Locked up and my employer won’t let me out: Have I been falsely imprisoned by my employer?

December 18, 2020 | Rob Wiley, P.C.

False imprisonment is the wrongful restraint, confinement or detainment of a person without that person’s consent. False imprisonment is a crime and can be charged as a misdemeanor or a felony, depending on the severity of the imprisonment. Additionally, false imprisonment is a common law tort and can arise in the employment context. To successfully sue your employer for false imprisonment, you must show:

1. you were detained, confined, or restrained against your will by your employer in the workplace;
2. you did not consent to being detained; and
3. the detention was unreasonable or unlawful.

In order to show that you were detained, confined or restrained against your will, you must show that there was an impediment to your freedom. In other words, you must prove that your employer prevented you from leaving the room or area in which you were confined. Common examples of an employer confining an employee include, locking the door or placing someone or something at the door to block the exit. Keep in mind, however, that you must be completely confined in order for your employer’s action to qualify as false imprisonment. For instance, blocking your ability to exit the room in one direction is not enough. If there is another reasonable way to exit the room heading in a different direction, then false imprisonment has not occurred.

Arbitration and You: Why You Should Pay Attention If Your Employer Talks About Arbitration

December 11, 2020 | Robert J. Wiley

So, one day your employer asks you to sign a piece of paper that talks about a “dispute resolution” program, including “arbitration.” Perhaps you instead got paperwork talking about arbitration with your onboarding materials when you started a new job. Or, maybe you just got an email from your employer saying you are now subject to arbitration “as a condition of employment.” This article takes a basic look at what these things mean and why seeing them ought to—at the very least—cause you to sit up and think about what your next move should be.

Arbitration is basically a private court. The parties (including employees and employers) agree beforehand to submit disputes to a private decisionmaker or decisionmakers to reach a final, binding decision. Some arbitration programs require the parties to select an arbitrator or arbitrators from a list of candidates associated with a large dispute resolution company like the American Arbitration Association, and might apply rules set by that company. There is no judge or jury, and the ultimate decision may be kept secret. Appealing an arbitrator’s decision can be almost impossible, and the rules of an arbitration may be quite different than those in a court. As a result, employees may have less of an ability to get evidence from their employer. Continue reading ›

The Holidays are Stressful but Scheduling Childcare May Not Have to Be with Recent Changes to the FMLA

December 4, 2020 | Paige Melendez

As the country heads into the second half of fall fraught with holiday breaks and the prospect of a second wave of COVID-19 on the horizon, child-care concerns remain prevalent. The holiday season brings vast uncertainty about school closings and the availability of other childcare options, normally, but this year that uncertainty is ratcheted up by adding in COVID-19. Therefore, it seems appropriate to discuss the Families First Coronavirus Response Act (“FFCRA”) and how it could help some employees navigate the season as our country continues to slog through this pandemic. The FFCRA was passed in mid-March of 2020 to try and provide relief to employees. This aid was partly carried out through the “Emergency Family and Medical Leave Expansion Act” or “expansion act,” which expands the Family Medical Leave Act (“FMLA”) to allow for some employees to take leave to care for their children. Below, there is a brief discussion on who gets to take this new child-care leave, how this new child-care leave operates, and what that means for employees who are attempting to take advantage of the new provisions.

The False Claims Act: Suing Your Employer on Behalf of the Government

November 27, 2020 | Deontae Wherry

The False Claims Act (FCA) is a longstanding federal statute that was originally enacted to combat defense contractors who committed fraud against the federal government during the Civil War. Since the 1860s, the FCA has been revised and has become an authoritative tool to prevent fraud committed against the federal government. Understanding the federal government cannot know every individual or company who knowingly submit fraudulent claims, the FCA’s whistleblower provision allows individuals and employees to bring a qui tam action on behalf of the government.

Since 1986, after Congress strengthened the FCA, the government has recovered more than $62 billion in civil false claims. According to the Department of Justice, the government collected more than $3 billion in settlements and judgments from civil cases involving fraud and false claims against the government in the fiscal year 2019. Moreover, during the 2019 fiscal year, the government paid out more than $265 million to individuals, like you, who exposed fraud and filed qui tam actions. With these significant payouts, there is no reason to remain silent if you know your employer is defrauding the federal government.

Workers’ Compensation Retaliation Under Chapter 451

November 20, 2020 | Rob Wiley, P.C.

Workers’ compensation is a form of insurance that pays for wage replacement and medical benefits to employees injured on the job or in the course of employment. Texas is a unique state that makes workers’ compensation voluntary for employers. For that reason, most private employers in Texas may choose to affirmatively “opt-out” of the state workers’ compensation system. Those who “opt-in” are called “subscribers” and those who “opt-out” are called “non-subscribers.”

In Texas, workers’ compensation retaliation is governed by Chapter 451 of the Texas Labor Code. Thus, a claim for retaliation is commonly known as a Chapter 451 claim. Chapter 451 makes it illegal for employers to discharge or in any other manner discriminate against an employee because the employee has: