Attorney Eric Dama

wheelchairUnder the Americans with Disabilities Act (ADA) as well as Texas law, your employer is required to provide you with a reasonable accommodation for your disability, as long as you are qualified to do the job. Reasonable accommodations can include any changes to the workplace or tasks that would allow you to do the job.

For example, you might need altered work hours periodically to see a doctor for disabling diabetes. Similarly, you might need a ramp if you need to use a wheelchair. You might need special software if you have an impairment that involves difficulties using your hands, such as amputation or disabling carpal tunnel syndrome.

Sometimes the reasonable accommodation includes time off from work. This may be provided under the ADA or Texas law, but it may also be provided under the federal Family and Medical Leave Act, if your employer is large enough to be covered by this law. Only employers with 50 or more employees are covered. The FMLA requires covered employers to give eligible employees the right to take up to 12 weeks of unpaid leave for a serious health condition. For example, if you have cancer and need time off to go to chemotherapy appointments, your employer may need to accommodate you under the ADA or Texas law. If the chemotherapy doesn’t work, you may be entitled to ADA leave, but you may also be entitled to FMLA leave.

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theaterA great deal of work goes into high school debates. While they tend to be an extracurricular activity that attracts highly motivated and structured individuals with a particular type of personality, these debates also requires an intense amount of preparation, regardless of who is doing the debating. High school debaters need to develop certain skills, such as the ability to read the judge, the ability to turn the opponent’s evidence or arguments to their favor, and the ability to do a substantial amount of research.

These same skills need to be developed by trial lawyers. Many people assume that trial lawyers are successful in court because they possess charisma or chutzpah, or because there is something special about them.

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bookThe Texas Board of Legal Specialization was established by the Texas State Bar in 1974 with the goal of promoting the quality and availability of attorneys’ services in certain areas of the law. The idea behind establishing this Board was that by allowing attorneys to become specialized, the standards of the legal profession would be higher, and clients would be better served. The Board certifies lawyers in 23 specific areas of law, including Labor and Employment, as well as certifying paralegals in seven legal areas. The Board is the only organization permitted to certify attorneys in specialized areas.

The process of achieving Board Certification is extremely rigorous. Attorneys who wish to become certified need to practice for at least five years with three years of substantial involvement in a particular area of law, finish Continuing Legal Education requirements related to the specialization from a provider that’s approved, provide at least five qualified vetted references, give documentation on relevant experience, and pass an exam that lasts for a day and is comprehensive.

These requirements are all on top of the requirements necessary to become a lawyer in the first place. Over 100,000 attorneys are licensed to practice in the state, but of these, only 7,350 are Board Certified. Within Texas, a Board Certification in Labor and Employment Law signifies that an attorney has significant experience in employment law matters and has also showed special competence within that area.

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clockSometimes Texas workers believe that they must be as helpful as possible to an employer, even if it means working off the clock. For example, sometimes workers come in early to help an employer set up for that day’s work, but they don’t punch in for that period. Or, sometimes, an employee participates in work during lunch hours that isn’t counted toward their work hours for that week. Under the Fair Labor Standards Act (FLSA), work that is not counted toward overtime or goes uncompensated is illegal.

The FLSA requires that nonexempt employees be paid overtime if they work more than 40 hours per week for all work done. Most employees are considered nonexempt and are covered by the FLSA for the purposes of overtime, as well as the minimum wage. Exempt employees are those who are considered professional, administrative, or executive, or are within certain industries such as commission-based sales.

All work for an employer should be on the clock. If an employer requires or allows employees to do any work for it without compensating the employee and counting it toward weekly hours for the purposes of calculating overtime, it is “off the clock.” What counts as work? Whenever an employee engages in work that’s not requested but allowed, such as helping a colleague or coming in early to set up, this is work that is completed and should still be compensated.

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lunchMany workers do not realize that they do not need to go off the clock for short lunch breaks or snacks. If you take yourself off the clock for breaks under 30 minutes, you may not be getting the wages to which you’re entitled.

There are many employment practices not regulated by the federal Fair Labor Standards Act (FLSA). For example, there’s no requirement under the FLSA that you get vacation pay, meal periods, holidays off, premium compensation for working weekends or holidays, pay raises, a reason to be discharged, or pay stubs. There are no collection procedures in place if you are promised wages or due commissions that are greater than what’s required. Moreover, there are no limitations about how many hours in a single day you can be scheduled to work if you are at least 16 years old. Generally, these issues are agreed upon between an employer and an employee.

However, rest periods or short lunch breaks are quite common in all workplaces. There is no requirement that a lunch or coffee break be given under federal law. However, if your employer chooses to offer you a short break, these breaks are considered compensable hours that are included when determining overtime and minimum wage, and they are regulated under the FLSA. Any rest period of short duration (such as one that is 20 minutes or less) is supposed to be paid as working time and included when calculating overtime.

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alcatraz-1219539-1Your past should not dictate your future in America. Those who are able to work should be able to work and build their futures. Partially due to a failed war on drugs, which disproportionately affected African Americans and Latinos, one in four Americans who are of working age have a criminal record.

This is problematic because arrests and convictions can make it much harder to get a job. About 92% of employers conduct criminal background checks when they hire, and numerous people are disqualified from jobs based on this type of search, even though they’ve already been acquitted or served their time. There are some limited protections for those with criminal records, but they are insufficient. No employer should ask about criminal history.

The Equal Employment Opportunity Commission (EEOC) has determined that employers that take up a blanket policy of excluding all job applicants who have a criminal record may be using a practice that has a disparate impact on African Americans and Latinos. Title VII prohibits employers from treating people who have similar criminal records differently due to race, national origin, or another characteristic protected under Title VII.

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computerThe Fair Labor Standards Act (FLSA) is the federal law that regulates minimum wage and overtime, including how these issues should be handled in connection with a summer internship. Employment is defined broadly such that anyone who is suffered or permitted to work is employed. The United States Department of Labor enforces the FLSA, and it uses a six-part test to decide whether you should be paid minimum wage for your summer internship.

An unpaid internship is only appropriate under the six-part test when:  (1) the intern doesn’t displace a paid employee, (2) the internship is for the intern’s benefit, (3) the internship is similar to training that would be provided in school, (4) the employer doesn’t benefit from the intern’s work and sometimes may be disrupted by what the intern is doing, (5) the intern isn’t promised a job once the internship is over, and (6) both the intern and the employer understand that the job is an unpaid position.

If you are closely supervised by existing staff and are not “seasonal help,” you probably didn’t displace a paid employee. However, if your employer would have hired more people to do the work you’re doing if you hadn’t joined as an intern, you are likely entitled to FLSA pay.

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smoking

The eight-hour workday was developed during the Industrial Revolution so that workers doing manual labor in a factory would not have to work as many hours. Prior to that, in the late 18th century, factory workers worked 10-16 hours days to keep factories running 24/7. A campaign was started to have people work no more than eight hours in a day so that they would have eight hours of work, eight hours of recreation, and eight hours of rest. The campaign was successful.

The goal was humane, but it doesn’t take into account our modern situation in which employees who work steadily for hours on end, sometimes for 10 to 12 hours in a day, are assumed to be more productive than employees who take breaks. According to the Bureau of Labor Statistics, the average American actually works 8.8 hours in a day. This is more time than the average worker spends doing anything else.

However, one study shows that workers who take brief breaks are more productive than those who keep working continuously for more hours, regardless of the number of hours they were working overall. Ideally, according to that study, there is an hour of uninterrupted work and then a break of about 15-20 minutes.

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flowersMany people in Texas and elsewhere get confused between “employment at will” and “right to work.” Both of these terms are legal terms associated with employment law, but they have distinct meanings that are crucial to understand.

Employment at will is a common law doctrine. It means that the employer can terminate the employee arbitrarily and for any reason. An employee is also allowed to leave at will for no reason or any reason. Generally speaking, when employment is at will, employers can change the terms and conditions of employment and either increase or reduce wages.

However, in many cases, an employer and an employee do sign an employment contract. In some cases, the contract specifies that termination is only for just cause, or the employer and employee agree verbally that the employment will end only because of a just cause within a specific window of time. Sometimes employee handbooks provide language that shows employment is not at will, as do certain collective bargaining agreements.

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shopping cartIn July 2015, a Wal-Mart employee sued her employer in federal court, alleging that the corporation had intentionally deprived her of spousal health insurance benefits because she and her spouse were of the same sex. She’d worked for the company for 15 years.

This lawsuit was filed a few weeks after same-sex marriage was legalized by the United States Supreme Court in Obergefell v. Hodges. This holding had broad implications for many areas of law, including the issue of health insurance provided to the spouses of employees. Prior to this holding and an earlier ruling related to federal spousal benefits that struck down the federal Defense of Marriage Act, employers tended to believe they were entitled not to recognize same-sex marriage. For three years before 2014, the company would not pay health insurance benefits to employees involved in same-sex marriages.

Wal-Mart started to provide benefits to same-sex couples in 2014. About 1,200 employees signed up to get these benefits. By then, the named plaintiff’s wife had developed ovarian cancer and had incurred $150,000 in out-of-pocket expenses.

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