Dallas Employment Lawyer Blog

Living in a corporate panopticon? Employer surveillance in Texas

February 24, 2023 | Austin Campbell

Dallas Employment Trial Lawyer Austin Campbell

Summary: This article discusses some of the emerging issues employees have to contend with when it comes to employer surveillance, and briefly addresses the laws governing that.

As we move more and more towards an information technology-centered economy—and especially as the pandemic dramatically increased the number of employees working from home, employers have begun to increasingly rely on surveillance tools to monitor their employees. This article explores the limits of what they can do in Texas.

Can you use FMLA leave to reduce your work schedule? New DOL rule says yes you can.

February 24, 2023 | Robert J. Wiley

Dallas Employment Trial Lawyer Rob Wiley

The Family and Medical Leave Act (FMLA) is one of the most modern and powerful tools for Texas employees with injuries and disabilities. Since its inception, workers have had the right to take blocks of leave for a serious medical condition. Workers have also had the ability to take intermittent leave, which allows workers to take medical leave on an as-needed basis. But what about using FMLA leave to reduce an employee’s work schedule? Is this qualifying FMLA leave? In an opinion letter dated February 9, 2023, the Department of Labor ruled that an employee with a disability may use FMLA leave for a reduced work schedule if the reduction is a reasonable accommodation for the employee’s disability.

The FMLA is a federal law that provides eligible employees with up to 12 weeks of unpaid leave per year for qualifying family and medical reasons, such as a serious health condition.

Knowing When to Throw ‘Em

February 7, 2023 | Paige Melendez

Dallas Employment Lawyer Paige Melendez

There are certain skills that as we go through life we must obtain. One of those of those skills is knowing when enough is enough and it’s time to walk away. And it is a skill to be able to recognize that and act on the recognition. This skill is especially relevant in any type of legal process. The reason why is that sometimes moving forward is not the best action you can take and that’s a big decision, but hopefully some of the considerations below will help to illustrate good ways to analyze the choices made as a client.

We’ll start with an example of a situation where a big decision must be made: do you file a lawsuit?

New Year, New Me: Not Tolerating Discrimination This Year

January 19, 2023 | Deontae Wherry

Dallas Employment Lawyer Deontae Wherry

Happy New Year! During this time of the year, many people set new goals for themselves hoping to improve the status quo. I am a firm believer that your environment affects your goals. For instance, a toxic supervisor or a hostile work environment can affect your professional goals. If you find yourself in a hostile work environment, you do not have to suffer in silence. This year, make it your priority to speak up, if you feel you are being subjected to discrimination and/or retaliation.

What does discrimination look like?

New Decision Gives NLRB Real Teeth to Make Employees Fired for Protected Concerted Activity Whole

January 10, 2023 | Austin Campbell

Dallas Employment Trial Lawyer Austin Campbell

Summary: This article gives a brief overview of the NRLB’s new Thryv, Inc., decision, and its implications for the landscape of labor and employment law.

The National Labor Relations Act is an often-overlooked part of employment law. The National Labor Relations Board (the agency in charge of administering the NLRA) does far more than govern company-union relations (i.e., labor law). It also protects employees, regardless of union membership, against retaliation for engaging in protected concerted activity regarding the terms and conditions of their employment. This means, for instance, that two or more employees who talk to each other or management about some important workplace issue like wages, safety, or company policies may have legal protection if the company seeks to punish them for “rocking the boat.”

Let the Jury Decide

December 29, 2022 | Deontae Wherry

One the greatest rights we have is the right to a jury trial. While many employment cases never make it to a jury, employees still have this fundamental right to attempt to get his/her case to a jury.

Over the last year, we have witnessed more employment cases being tried before a jury. One of the reasons we are seeing more jury trials is courts are trying to clear their backlogs from the pandemic, and the way to do that is by having jury trials and getting cases off their dockets. Another reason is people want their day in court. As a result, we have witnessed significant jury verdicts in employment cases.

I also realize that some people do not like juries. Why is this? Maybe it’s because your fate is in the hands of people that you do not know. Perhaps you may not feel confident that you will be given a jury of people who are truly your peers. That is okay if you are uncomfortable having a jury decide your case. You can always have a bench trial before the judge. I must admit getting a case to a jury is not easy, which is discussed by my colleague, Jairo Castellanos, in a recent blog. But, for now, let’s discuss who jurors are, their purpose, and recent jury verdicts.

Last Minute Shopping? Bring Kindness.

December 22, 2022 | Paige Melendez

Dallas Employment Lawyer Paige Melendez

Whether you are last minute shopping or merely intend to do some shopping during the busiest shopping time of the season, we all know that stores become packed. This includes lines of people longer than normal, harried store associates racing to re-stock shelves and answer questions, and customers becoming less patient. It’s the last symptom that brings forward my trite recommendation for this holiday season: Be Kind. This mantra is used year-round for various purposes – believe me, I too roll my eyes – but in the context of an at-will employee diligently working during the winter, it makes sense to be reminded and here’s why. In my last blog I looked at how holiday hours are only beneficial if you can and do work overtime hours. This blog is about how workers are treated during those busy holiday hours by customers and store management.

If you have ever had to work in any kind of customer service position or retail job, then you are aware that the holiday season brings a type of dread with it. Most customer service based positions and almost all retail positions are hourly employment jobs and deemed to be at-will. At-will employment in Texas means that there is no job protection for these workers, and they can be fired for any reason or no reason at all. For example, take Rhonda – a cashier – putting in her very best efforts, battling the long lines of patrons and getting them through the checkout line as quickly as she possibly can. Drake, her manager, who is upset at how many customers are complaining during the holiday season, may not care about Rhonda’s best efforts. All he hears and cares about are the customers complaints over the predictably long lines. After being on her feet all day, and even working overtime hours with the store staying open late, Rhonda could be fired. Rhonda would have no recourse if her unreasonable manager terminated her employment for a legitimate non-discriminatory reason like customer complaints about long lines in front of her cash register.

Gig workers: Employee or independent contractor?

December 19, 2022 | Haylie Davis

FFAD29BD-DCBE-46B6-9955-05B9B7DCBA83-200x300 In October, the Biden Administration issued a highly anticipated proposal on how it will approach independent contractor status under federal wage law. The proposal, released by the US Labor Department, clarifies when workers should be classified as independent contractors or be classified as employees who are afforded many more rights, such as full minimum wage, overtime, and other protections provided under the Fair Labor Standards Act.

This is a potential game changer for millions of gig workers, who are often classified as independent contractors. This includes the quintessential Uber drivers and food delivery app drivers, but construction and agriculture have some of the largest representation of independent contractors in the country.

When this was announced, gig companies such as Uber Technologies Inc. and Lyft Inc. worried about what this will do for their company, as stock prices took a tumble after the announcement. These businesses say their operating costs would skyrocket if they were broadly required to reclassify their independent contractors as employees, due to the tax liabilities and minimum wage, labor, safety, and other legal requirements that apply to employees.

A Holiday Tip for Tipped Employees

December 12, 2022 | Linh Nguyen

Linh Nguyen Dallas Trial Attorney

If you’ve worked in the food service industry before, you know that the holidays can be hit-or-miss when it comes to tips. I spent years in the industry at a variety of different food establishments, working through many Thanksgivings, Christmases, and New Years. I would hope on these days that it would be like any other when I could expect to bring home the usual amount of tips from the night. If I got lucky, someone would be in high holiday spirits and extra generous; and if I was unlucky, someone would think leaving me a Christmas card made up for the $0.00 left on the “tip” line of the receipt (totally happened, and they didn’t even leave a message inside!).

But, of course, that’s the luck of the draw when it comes to the food service industry and being a tipped worker. There’s a lot that can be said about what needs to be changed or fixed in the industry, and you likely have your own opinions on whether tipping should even be a thing. However, this blog today is for my tipped workers who may not know all the laws surrounding what your employer can or can’t do with the tips you earned.

Am I Exempt or Non-Exempt from Stacks of Holiday Green?

December 5, 2022 | Paige Melendez

Dallas Employment Lawyer Paige Melendez

During the holiday season around my college campus, there was “common knowledge” that one of the biggest benefits of working retail on holidays like Black Friday was that you’d be entitled to time and a half solely because you worked on that day. Cut to becoming an employment lawyer and it’s time to debunk that myth. There are a few things that factor into working during the holiday season, which traditionally kicks off with Thanksgiving and more importantly, Black Friday. The first is whether a non-exempt employee can be forced to work on a holiday, then whether there are any additional benefits to working on a holiday that may make it worth it, and finally whether an exempt employee has access to these same considerations.

For starters, when I use the phrase “non-exempt” and “exempt” I am referring to the Fair Labor Standards Act (FLSA) denotation for employees who are entitled to overtime (and therefore “non-exempt”) and employees who are not entitled to overtime (and therefore “exempt.”) We are going to focus on non-exempt employees because that’s where the myth of extra pay originates. Turning to whether non-exempt employees can be required to work on a holiday like Thanksgiving or a federally recognized holiday, the short answer is: unfortunately, yes. The FLSA does not require employers to give employees days off even on a federally recognized holiday. Individual employers, of course, can decide to have truncated days or allow employees to request those days off, but there is no law requiring them to do so. There are a few exceptions to that rule, and they mostly involve employees that are allowed to have days off because of a different allowance like observing a religious holiday or where there is a collective bargaining agreement (union contract with employer) that allows those days off. Without an exception, the non-exempt employees are at the mercy of their employers. (There’s also that meme that says requests for days off are simply polite notices of non-attendance, but I would not recommend that strategy.)