Dallas Employment Lawyer Blog

Involuntary Work Separations Under Texas Law

July 24, 2019 | Law Office of Rob Wiley, P.C.

The Texas Workforce Commission (TWC) oversees unemployment compensation cases for Texas citizens who are out of work through no fault of their own. To determine whether an individual is entitled to an employment benefit, such as unemployment compensation, the TWC must know what caused an employee and employer to go their separate ways.

The first determination is whether separation was voluntary or involuntary. The type of separation determines what benefits an employee may receive. A voluntary work separation is any separation that is initiated by an employee. These types of separations are those where an employee retains more power than the employer. Voluntary separations occur as long as the employer did not force the employee to resign. An involuntary work separation is an employer initiated separation.

Involuntary separations occur when an employer engages in some action or behavior that make it impossible for an employee to continue employment after a specific date. Unlike voluntary departures, an employer retains more power than the employee in these scenarios.

Are Texas Employees Entitled to Paid Breaks During Their Shift?

July 15, 2019 | Law Office of Rob Wiley, P.C.

The Fair Labor Standards Act (FLSA) establishes specific standards for part-time and full-time employment. The FLSA applies to private, state, and local, and federal government employees in Texas. According to the Texas Workforce Commission, this federal act covers minimum wage, overtime pay eligibility, and record keeping.

Although the FLSA covers some critical employment issues, unfortunately, several employment practices are not included. Generally, under Texas law, employers are not required to provide pension plans to their employers. Further, Texas employers do not need to give raises unless there has been an increase in the minimum wage. The FLSA also does not require employers to pay their employees extra pay for holidays or weekends. Similarly, employers do not have to pay shift differentials; meaning employers do not have to provide extra compensation for undesirable shifts.

Employee Breaks Under the FLSA

Federally Funded Entities Provide Protections to Texas Workers

July 5, 2019 | Law Office of Rob Wiley, P.C.

In addition to the Americans with Disabilities Act, the Rehabilitation Act of 1973 (the Act) protects employees who work for the federal government, a program conducted by a federal agency, a program receiving federal financial assistance, or a federal contractor. This Act protects the rights of people with disabilities from discrimination regardless of the number of employees. Legislators designed the Rehabilitation Act in response to the large number of individuals with disabilities who were either unemployed or underemployed based on employers’ reluctance to hire them. Additionally, the Rehabilitation Act requires employers to hire and retain individuals with disabilities.

Section 504 of the Act prohibits employers who receive federal funds from discriminating against a qualified individual with a disability. The Act provides that employers cannot deny benefits, exclude, or discriminate against prospective, current, or former employees based on their disability. Additionally, the Act requires Texas agencies or contract service providers who receive federal funds to recruit actively, employ, and advance qualified disabled individuals.

If a Texas employee believes their employer is discriminating against them, but the ADA does not cover them, they may still be able to pursue a claim based on the Rehabilitation Act. However, the Rehabilitation Act and ADA use the same standards when determining if an employer is engaging in employment discrimination.

How Can a Texas Employee Know If They Are Working in a Hostile Work Environment?

June 28, 2019 | Law Office of Rob Wiley, P.C.

Last week we discussed Texas employers’ responsibilities after an employee reports discrimination, including instances involving hostile work environments. Here, we take a closer look at what constitutes a hostile work environment.

Under state and federal civil rights laws, Texas employers are prohibited from engaging in discrimination based on an employee’s sex, race, religion, national origin, age, disability, or pregnancy. Harassment is among the conduct that is prohibited under the anti-discrimination laws. Further, sexual harassment can include a wide range of offensive conduct. A few common examples of harassment are:

offensive jokes

What Is My Employer’s Responsibility After I Report Discrimination?

June 20, 2019 | Law Office of Rob Wiley, P.C.

In the event a Texas employee experiences harassment or discrimination in the workplace, they should notify their employer of the unwanted or offensive conduct immediately. In response to such a report, an employer is required to take prompt remedial measures to rectify the situation. Under Texas law, employment discrimination and harassment occur when an individual or group of individuals are treated differently because of their race, religion, sex, color, national origin, age, pregnancy, or disability.

The Equal Employment Opportunity Commission (EEOC) records and manages data on employment discrimination and harassment across the United States. According to the EEOC, although workplace harassment and discrimination can take many forms, the reports they receive often follow one of several commonly occurring situations. Generally, most complaints occur when an employee has suffered discriminatory harassment based on their protected class. While discrimination may be obvious in some case, more often discrimination based on a protected class is masked behind seemingly innocuous statements and behaviors. This may lead employees to delay reporting the situation for fear of retaliation or ridicule.

Employers have the responsibility to listen to their employee and follow the employer’s own policies and procedures for handling these sorts of complaints. Employers should also interview the parties involved, conduct a thorough investigation, cooperate with authorities, and take prompt remedial action. This action may include coaching, counseling, suspension, or even termination of the offending party. Of course, employers cannot retaliate against their employees for making a discrimination claim. Further, if the harasser is a supervisor, employers are automatically liable for any discrimination.

Pregnancy Discrimination Includes Pregnancy-Related Illnesses

June 10, 2019 | Law Office of Rob Wiley, P.C.

Under both state and federal law, Texas employees are protected from discrimination based on pregnancy and pregnancy-related illnesses; however, that was not always the case.

Originally, the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, color, religion, sex, and national origin was not interpreted by the courts to include protection for pregnancy and related medical conditions. During this time, employers were able to make decisions based on the fact an employee was pregnant. It was not until over a decade later, with the passage of the Pregnancy Discrimination Act of 1978 (PDA) that pregnancy was covered. Since the passage of the PDA, discrimination based “on the basis of pregnancy, childbirth, or related medical conditions” has been prohibited because it is considered to be discrimination based on a person’s sex.

Under the PDA, women who are pregnant or are suffering from pregnancy-related illnesses cannot be discriminated against. Common pregnancy-related illnesses include:

Are Employment Handbooks Binding On Employers?

June 1, 2019 | Law Office of Rob Wiley, P.C.

Employee handbooks typically outline an employer’s expectations, as well as the consequences an employee may expect if they fail to meet the employer’s expectations. However, employee handbooks may also outline other important information, including:

an employer’s overtime policy;
the benefits offered by the employer;
various types of leave available to employees;
guidelines for employee performance reviews;
the expected process for an employee to resign from their position; and
policies for promotion, termination, and transfers.

Employees should be able to rely on the language in the handbook and be confident that, if they avoid the prohibited conduct listed in the handbook, they will not be unfairly disciplined or terminated. Similarly, an employee should be able to rely on the listed benefits and procedures outlined in an employee handbook throughout the course of their employment. However, that is not always the case.

Routinely, Texas employers terminate employees for conduct not listed as prohibited or discouraged in an employee handbook. Similarly, it is not uncommon for an employer to renege on the benefits mentioned in an employee handbook or otherwise not follow the procedures outlined in an employee handbook. When this occurs, an employee may be able to pursue an employment claim against their employer.

Do I Get My Accrued PTO When I Leave the Company?

May 24, 2019 | Law Office of Rob Wiley, P.C.

In today’s society, more people realize the value in maintaining a manageable work-life balance. And with healthcare costs continually on the rise, now more than ever prospective employees are looking beyond a position’s salary when seeking employment. Because of this, employers realize they must provide a comprehensive and attractive benefits package to recruit and retain quality employees.

A major issue for many employees is an employer’s policy for personal time off (PTO). Paid time off, or personal time off, is generally accrued as an employee works. While employers often allow employees to use PTO for the year before they actually accrue it (to avoid everyone using their PTO at the end of the year) many employees accrue more PTO than they use. This often results in an employee having a surplus of PTO.

When it comes time to leave a job, many employees wonder whether they must be paid out for their remaining unused PTO. Given that many employees carry large balances of PTO, the payout an employee receives upon their termination can be considerable. Employers may try to limit the amount of PTO they pay an employee upon termination; however, this is not always allowed.

Do I Have a “Minimum Guarantee” under the FLSA?

May 16, 2019 | Law Office of Rob Wiley, P.C.

As we have noted in previous blog posts, the Fair Labor Standards Act (FLSA) (the “Act”) is a federal law that guarantees Texas employees certain workplace rights. Among those are the right to be paid at or above the federal hourly minimum wage and the right to collect overtime pay for any hours worked over 40 per week. While the FLSA governs most jobs in the United States, some employees are excluded from the Act’s overtime rules. These employees are referred to as “exempt” employees.

Determining whether an employee is exempt or non-exempt under the FLSA can be tricky, and may depend on how much an employee is paid, how they are paid, and what type of work they perform. As a general rule, to be considered exempt, an employee must meet each of the following three criteria:

the employee is paid at least $23,600 per year ($455 per week);

What Is Considered Associational Discrimination in Texas?

May 10, 2019 | Law Office of Rob Wiley, P.C.

In this blog, we often talk about the various types of Texas employment discrimination claim an employee can bring against their employer. For the most part, discrimination claims come up when an employer takes some type of adverse employment action against an employee based on their protected status. Adverse employment actions include firing, failing to promote, transferring, or failing to hire a prospective employee. According to the Equal Employment Opportunity Commission (EEOC), the protected classes are race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age, disability, and genetic information.

It is important for Texas employees to realize federal law protects them from discrimination based on their own membership in a protected class as well as based on their association with members of a protected class. This is called associational discrimination. An example of associational discrimination would be an employer deciding not to hire a prospective employee because that person’s spouse suffers from a serious illness, out of fear the prospective employee would require a lot of unexpected sick days to care for their spouse.

While trial and intermediate appellate courts across the country agree associational discrimination is a legitimate claim of discrimination, the United States Supreme Court has not defined the standard. Neither has the Fifth Circuit Court of Appeals. However, the Fifth Circuit has implicitly recognized associational discrimination claims. Additionally, Texas federal courts have explicitly adopted a standard for associational discrimination claims. Unless the Fifth Circuit or the U.S. Supreme Court takes a different position, an employee making an associational discrimination claim must establish: