Attorney Eric Dama

meetingUnder Title VII of the Civil Rights Act, it’s illegal for covered employers to discriminate against a job applicant or employee on the basis of sex, among other protected characteristics. However, discrimination on the basis of sexual orientation has not been explicitly prohibited. In a 2017 case, Hively v. Ivy Tech Community College of Indiana, the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. This ruling is different from the holdings of the nine other circuits.

The case arose when Hively, an openly lesbian adjunct professor, started teaching at a community college. She unsuccessfully applied for six full-time positions at the community college between 2009 and 2014. She believed that she was not getting hired full-time due to her sexual orientation and filed a charge to this effect with the Equal Employment Opportunity Commission (EEOC).

In court, the community college tried to get the case dismissed on the ground that sexual orientation was not a protected class under Title VII. The district court dismissed the case with prejudice. Hively appealed. A panel of the appellate court affirmed. It reasoned that discrimination based on sexual orientation was different from sex discrimination. The other circuits understood Title VII similarly.

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clockStudies have found that employers underpaying workers is a huge problem in America. Texas is not immune from this problem. From 2014 to July 2017, $29.5 million in back pay was awarded to workers under the Texas Payday Law. However, this figure may not represent what’s truly owed. It doesn’t include back pay owed to workers who don’t realize they’ve been shorted, or who are undocumented and are afraid to involve the government for fear of deportation or other retaliation.

From January 2014 – July 2017, there were 42,788 complaints filed under Texas law. Eight hundred employers were assessed bad-faith penalties of $1.17 million for knowing underpayment of workers. Under Texas law, individual penalties cannot be more than the lesser of $1,000 or unpaid wages.

Sometimes Texas employers require or encourage workers to do work “off the clock.” This is work that isn’t compensated and isn’t tallied as part of your weekly hours when calculating overtime. Off-the-clock work may be illegal. Assuming you are a nonexempt employee, the time you spend doing things for your employer is supposed to be compensated. However, in some cases, employees do not realize this. They may volunteer to do work off the clock so that they seem appropriately enthusiastic about their careers, or simply because they enjoy working.

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handsSome fathers can take paternity leave. If you are a soon-to-be father expecting a baby in Texas, you may be concerned about the future and whether or not your employer is required to give you paternity leave. Those who work for small employers in Texas may not be able to get paternity leave.

However, the federal Family and Medical Leave Act (FMLA) allows eligible employees of covered employers to take a non-compensated leave for particular family and medical reasons, such as the birth of a child or to care for a newborn during his first year. It also allows this paternity leave if a child for foster care or adoption is being placed with the employee within one year of placement. This leave is job-protected. The employer is required to continue providing group health insurance under the same terms and conditions as if the employee hadn’t taken leave.

Your employer needs to give you 12 weeks of unpaid paternity leave after your partner has a baby or you adopt a child if:  (1) it has 50 or more employees in 20 or more workweeks in the current or prior calendar year, and (2) you’re eligible because you’ve worked for the company for at least 12 months, have a minimum of 1,250 hours of service during the 12-month period just before the paternity leave, and work at a site where the company has at least 50 employees within 75 miles.

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waiterWaiters and bartenders are among the least compensated people in the nation. Their median hourly wage is $9.61 each hour. Under the Obama Administration’s 2011 regulations, their tips are their property. These regulations prevent an employer from using the tips for any reasons other than as a credit against its usual obligation to pay its employees minimum wage or in order to create a valid tip pool. Valid tip pools are sharing arrangements among employees who customarily get tips, like wait staff, but they don’t include employees who don’t customarily get tips, such as dishwashers or janitors.

Moreover, under section 3(m) of the Fair Labor Standards Act, an employer is permitted to take a tip credit toward its minimum wage obligation for tipped employees that’s equal to the difference between the required cash wage and the federal minimum wage. In certain situations, an employer is able to claim additional overtime tip credit against its overtime duties.

The United States Department of Labor has estimated that around the country, there are about 1.08 million wait staff and 219,000 bartenders who receive tips in 280,000 establishments.

US CapitolThe Merit Systems Protection Board (MSPB) is an entity that protects your rights if you are a federal civil service employee. The purpose of the board is to provide federal employees with the chance to appeal personnel decisions that are not in their favor or that are unfair. It is separate from partisan politics and is supposed to be an independent system. The President appoints the board members of this entity.

The MSPB is organized with multiple regional offices, although board members serve at its headquarters in Washington, D.C. Often, appeals happen in D.C., since that is where many federal workers do their jobs. Among the regional or field offices is one in Dallas.

At these offices, administrative law judges hear cases related to federal workers and agencies. The board members are supposed to protect the federal merit system, working together with the administrative law judges, attorneys, and staff at the MSPB to successfully implement the mission of the entity.

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downtown HoustonUsually, you can’t get unemployment benefits if you quit your job. However, if you quit for good cause, it may be possible to get unemployment benefits. When you apply for unemployment benefits, the Texas Workforce Commission will investigate why you’re not working anymore. If it decides you weren’t terminated for misconduct at your job, or you quit your job for a work-related or medical reason, you might be eligible for unemployment benefits.

What is good cause? There are a lot of reasons people quit their jobs that do not count as “good cause.” For example, people quit because they decide that they are not being paid enough to do a particular job or because they want to move onto a job that is more fulfilling. Generally, you cannot receive unemployment benefits if you quit your job for those reasons. The reason must be something more severe, such as harsh harassment or serious discrimination.

A 2016 Texas unemployment benefits decision illustrates a situation in which a woman could not get unemployment benefits, even though she’d alleged racial discrimination. A woman appealed from a summary judgment that affirmed the Texas Workforce Commission’s decision to deny her unemployment benefits because it found she voluntarily resigned from her job. She claimed her resignation was based on racial discrimination and harassment. Continue reading

elderly peopleThe First Amendment prevents the federal, state, and local governments from infringing on rights of religion, press, speech, assembly, and petition. While workers of private companies are not protected from being fired for what they say, government workers may be protected from retaliation for exercising some of their First Amendment rights. Specifically, they are protected with regard to speech when talking about issues believed to be of public concern. They are not protected from retaliation for everything they say, however.

In 1968 the Supreme Court ruled in Pickering v. Board of Education that a government worker’s interest in remarking on issues of public concern needed to be balanced against the government’s interest as an employer in increasing the efficiency of public services that it offers through its workers. The Court noted that government workers are often in the best position to know any problems within government agencies, and those problems should be transparent, so the public can decide how best to address them. In that case, the Supreme Court also said that this type of speech isn’t protected if it knowingly or recklessly includes false statements. Critical to this case was that the teacher plaintiff was speaking more as a citizen than as a government employee when writing the letter to the editor with which the school district took issue and for which it terminated him.

A court deciding whether a government worker was impermissibly subjected to retaliation under the First Amendment must look at:  (1) whether the plaintiff was involved in an activity protected by the Constitution, (2) whether the government’s actions injured the plaintiff, such that an ordinary person would be deterred from continuing with those activities, (3) whether the injurious actions stemmed at least partly from utilizing one’s constitutional rights, (4) whether the worker’s speech was about a subject of public interest, and (5) whether the worker’s interest as a citizen in talking about public interest matters outweighs the government’s interest in efficient service provision.

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welding torchTexas workplace violence includes any threat or violent action taken against a worker. It can happen both on the job and away from the workplace. Nobody is immune from workplace violence, and some workers are at a higher risk of injury from a violent coworker due to the nature of their workplace. Some workers at heightened risk are those who exchange money with the public, health care and social service workers, those who work in community settings with extensive public contact, those who deliver goods or services, and those who work in small groups late at night or early in the morning.

Among the leading causes of job-related deaths, according to the Occupational Safety and Health Administration, are homicides and physical assaults. A violent coworker is a workplace safety issue that employers should take affirmative steps to address.

Every workplace is supposed to develop and maintain a workplace violence prevention program, as well as employee handbooks or manuals of standard procedures that address this problem. All employees should be aware of the policy and understand that claims of workplace violence will be promptly investigated and addressed. Employers may also owe a duty to provide their employees with safety education and steps on what to do if they’re attacked by a violent coworker. It can also be helpful for an employer to install video surveillance, provide staff who work in the field with cell phones, and minimize access to work locations by outsiders.

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moneyThe SEC whistleblower program was established by Congress as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The Dodd-Frank Act is one of several financial reforms, another of which was the Sarbanes Oxley Act, which was passed in 2002.

The whistleblower program gives awards to eligible whistleblowers who voluntarily give original information to the SEC that results in successful SEC enforcement actions with civil sanctions that are greater than $1 million. A whistleblower is an individual or several individuals acting jointly. Corporations and similar entities cannot be considered whistleblowers.

To be considered original information for the purposes of an award, a Texas whistleblower has to include information derived from their independent knowledge or analysis, and it can’t be known by the SEC already from another source, except when the whistleblower is the original source because they first reported the information to the Department of Labor and Department of Justice, which provided the information to the SEC. The information can’t be exclusively derived from allegations made in government reports or judicial and administrative hearings unless the whistleblower is a source of the information. Independent knowledge must be facts that are not gotten from sources that are publicly available. The whistleblower might have observed the facts first-hand but can also get knowledge via experience or discussion.

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conference roomThe Sarbanes-Oxley Act of 2002 (Sarbanes Oxley) is a federal law that provides protection to those who work for publicly traded companies and who inform authorities about SEC regulation violations or federal law violations connected to fraud against corporate shareholders. The law prohibits retaliation, discrimination, or harassment in the workplace against Texas whistleblowers.

Retaliation is any adverse change to the whistleblower’s terms and conditions of employment, and it can include anything from a simple reprimand to termination or blackballing. It’s not just those who work directly for publicly traded companies who are protected, but also agencies, contractors, and subcontractors of publicly traded companies.

The law includes as protected whistleblower activity any reports sent to federal law enforcement and regulatory agencies about violations, as well as reports to a supervisor, investigators within the company, and Congress. Employees who testify or who are involved in regulatory proceedings and other shareholder fraud proceedings are also protected.

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