Attorney Eric Dama

At the end of 2017, an international movement fighting against assault and sexual harassment began to take hold on social media. The hashtag #MeToo was utilized to illustrate the pervasive presence of harassment and sexual assault – specifically in the workplace. The catalyst for the movement came shortly after allegations were made against Harvey Weinstein, a well-known film producer. While the problem of sexual harassment and assault was only recently thrust into the public light, lawmakers have been taking steps to combat the reprehensible behavior for decades.

Legal News GavelIn 1980, the Equal Employment Opportunity Commission (EEOC) began to study the prevalence of sexual harassment in the workplace. Despite significant pressure from women’s advocates and widespread training for employers and employees, workplace sexual harassment is still a pressing issue. According to the EEOC, the Commission receives over 11,000 complaints each year. However, given the realistic threat of retaliation that people face when confronting or accusing perpetrators of abuse and harassment, the number of cases is underestimated.

According to the EEOC, it is illegal to harass any employee or applicant because of their sex. Common forms of Texas sexual harassment include behaviors such as unwanted sexual advances, invitations and requests for sexual favors, and other similar verbal or physical behaviors that are based on a person’s sex. Unfortunately, issues arise when the behavior is considered “teasing” or an off-hand comment, or if it occurs on an isolated occasion.

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When employees are involved in an actual or perceived workplace conflict, such as a claim of employment discrimination, employers will often conduct an internal investigation in order to protect their own interests. Although workplace investigations can bolster an employee’s claim in some cases, these investigations can also be very detrimental. In certain situations, an internal investigation can hurt an employee if they are being falsely accused of certain conduct or if their allegations are being ignored.

Legal News GavelMany times, employers do not properly conduct workplace investigations because they do not effectively plan the investigation, they ignore complaints, or they wait too long to conduct the investigation. Furthermore, employers may also lose their sense of objectivity, become aggressive, or fail to keep proper records of their investigation. It is very important that employees have appropriate support and assistance during these investigations, since the outcome can have a lasting impact on their professional and personal lives.

When an employee is asked to participate in or attend a workplace investigation, it is important that they have a Dallas employment attorney assist them through the process. Many employers will try and minimize the significance of the investigation in an attempt to get the employee to participate in the process without an attorney.

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In 1973, the United States Supreme Court issued a landmark employment discrimination case, McDonnell Douglas v. Green, outlining a framework for analyzing cases alleging employment discrimination. The McDonnell-Douglas test, as it has come to be known, is applied in nearly all Texas employment discrimination cases.

Legal News GavelWhen the Supreme Court first announced the McDonnell-Douglas test, it was in the context of a defense motion for summary judgment. In other words, the defendant filed a motion to dismiss the plaintiff’s case before it was even submitted to a jury. Essentially, the argument in a pre-trial motion for summary judgment is that the non-moving party cannot prevail at trial because, as a matter of law, their case is insufficient.

The McDonnell-Douglas test is fairly straightforward, although it can become complex in its application. First, the plaintiff must establish a prima facie case of discrimination. This normally requires that the plaintiff prove that they belong to a protected class and that the employer took some adverse employment action against them. This creates a presumption that the defendant employer engaged in discriminatory conduct.

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Recently, a federal judge in Texas issued a ruling prohibiting Texas employers from discriminating against employees based on their sexual orientation or gender identity. Although the plaintiff in that case was ultimately unsuccessful in establishing a case of Texas sexual orientation discrimination, the decision paved the way for gender-identity discrimination lawsuits.

Legal News GavelUnder Title VII of the Civil Rights Act of 1964, certain qualifying employers are not allowed to discriminate or harass an employee based on that person’s sex. Discrimination covers all aspects of employment, including things such as termination, hiring, promotions, and benefits.

More and more advocates are beginning to speak out about gender identity and the related discrimination many of these individuals face in their professional and personal lives. Historically, Title VII has not protected these individuals from discrimination by their employers; however, recent cases have begun to change the tide in how these cases are handled.

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Legal News GavelUnder 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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Legal News GavelStudies 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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Legal News GavelSome 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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Legal News GavelWaiters 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.

Legal News GavelThe 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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Legal News GavelUsually, 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

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