Dallas Employment Lawyer Blog

How to blow the whistle on government fraud in Texas

December 15, 2017 | Law Office of Rob Wiley, P.C.

The False Claims Act (FCA) is a federal law that allows you to blow the whistle on unscrupulous companies, individuals, or contractors who defraud the government by bringing fraudulent claims or contracts. The FCA covers any federally funded contract or program. However, the FCA doesn’t cover securities fraud or tax fraud. Securities fraud is covered by the Dodd-Frank Act and the Foreign Corrupt Practices Act. Tax fraud is covered by the Tax Relief and Health Care Act.

When you have personal knowledge of fraud against the United States or Texas government, whether it’s at your workplace or another workplace, you can bring a Texas qui tam action to court. A qui tam lawsuit is one in which action is taken on the government’s behalf.

There are both federal and state False Claims Acts. Under these laws, you can pursue a qui tam action against an entity that has wronged the government. In a federal case, you file a sealed complaint of fraud based on your private knowledge about the wrongdoing. For example, in one federal case arising in Texas, a relator claimed that the defendants violated the FCA by submitting reimbursement claims of hospice care expenses for patients who weren’t eligible for MHB, when the necessary doctor’s certifications incorrectly certified that they were terminally ill.

You can’t be treated differently because of a disability in Texas

December 1, 2017 | Law Office of Rob Wiley, P.C.

Both the Americans with Disabilities Act (ADA) and the Texas Labor Code Chapter 21 prohibit employment discrimination based on disabilities in most workplaces in Texas. If you think you’ve been subjected to discrimination because of your disability, you may have a basis to bring a complaint to the Equal Employment Opportunity Commission (EEOC) or the Texas Workforce Commission (TWC).

Individuals qualified as having disabilities under federal and state laws have a physical or mental disability that substantially limits at least one of their major life activities, have a record of having such a disability, or are perceived as having this type of disability. Major life activities under the ADA include caring for yourself, performing physical tasks, seeing, hearing, sleeping, eating, walking, standing, bending, lifting, reading, concentrating, thinking, and breathing. Major life activities also include the proper operation of a major bodily function, such as neurological function, brain function, or endocrine function. “Disability” is supposed to be defined broadly.

An impairment that substantially limits a single major life activity doesn’t need to limit any other major life activity in order to be considered a disability that is covered by the ADA. Even impairments that are episodic or in remission may be disabilities if they would significantly restrict a major life activity when active or not in remission.

Workers over 40 are protected in Texas

November 19, 2017 | Law Office of Rob Wiley, P.C.

If you are age 40 or over, you are protected from age discrimination under Texas Labor Code Chapter 21, as well as the federal Age Discrimination in Employment Act (ADEA). By law, a Texas private employer with a minimum of 15 or more employees is covered by state law. All state and local governmental entities are covered by state law, regardless of how many employees they have. The ADEA applies to employers with a minimum of 20 employees in 20 or more weeks of the current or prior year. Neither Texas nor federal law protects younger workers from age discrimination.

Age discrimination includes any adverse employment decision taken against you due to your being 40 or older. Employment decisions include hiring, firing, promotions, and demotions, as well as refusing to allow someone to be trained or participate in some other privilege of employment. It is illegal for employers to include age requirements in their job notices, except when they can show an age lower than the limit is reasonably necessary to operating the business. For example, a police department may set an upper limit on the age you can be to do a particular position that requires more physical ability.

It can be hard to determine whether you’ve been subjected to discrimination based on your age. Sometimes, an employer makes comments about wanting fresh faces or critiques older workers in order to nudge older workers to take a retirement or quit. These types of comments and criticisms may be used to show age discrimination, if soon afterward you are terminated or denied a promotion. While there’s no prohibition against being asked your age or date of birth in a job interview, the question could show intent to discriminate. Usually, when age information is necessary, an employer waits to ask until after the employee is hired.

Texas employment decisions cannot be made because of sex

November 1, 2017 | Law Office of Rob Wiley, P.C.

As long as it has 15 or more employees, your employer cannot take adverse employment actions against you based on your sex under the Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act. Taking an adverse action against an employee based on his or her sex or perceived sex is sex discrimination. For example, if you were not promoted, denied a job, fired, or not trained due to your sex, these are all examples of gender discrimination. Sex discrimination can occur in any industry, although lately many news headlines focus on discrimination in the science and tech industries.

Federal law does not explicitly provide protection based on gender identity, expression, or orientation, but the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that same sex and gender identity discrimination are implicitly included in the prohibition against sex or gender discrimination in Title VII. Although about 429,000 workers identifying as LGBT live in Texas, there is no statewide law that prohibits discrimination based on sexual orientation or gender identity in workplaces. Certain cities have enacted ordinances to prohibit these types of discrimination and harassment.

There are two categories of sex discrimination — direct discrimination and disparate impact. Direct discrimination involves an employer who affirmatively acts in an adverse way against an employee due to sex. For example, if your boss refuses to promote you because he thinks women are not good leaders, this may be actionable as sex discrimination. Disparate impact is a more subtle form of sex discrimination. It exists when an employer creates a policy or practice that is facially neutral, but the policy or practice has a greater negative impact on employees of one sex more than another.

In Texas, it is absolutely illegal to make employment decisions based on race

October 1, 2017 | Law Office of Rob Wiley, P.C.

Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 prohibit race discrimination in most Texas workplaces. Race discrimination occurs any time that an employer makes an adverse employment decision based on race, and it is absolutely illegal.

Assuming it has a minimum of 15 employees, your private employer cannot make adverse employment decisions when hiring, firing, promoting, paying, training, or providing other terms and conditions of employment. Employers cannot make these decisions based on their biases about the qualities or performance of people who belong to specific races. They also can’t make those decisions based on a job applicant or employee’s association or marriage to someone of a certain race, membership in ethnic or race-based organizations, or attendance in schools that are identified with certain races.

For example, if your manager decides not to promote you to a supervisory position because she has stereotypes about people of your race not being good leaders, this would be race discrimination. Similarly, if you are not hired for a job because a company’s leadership believes that people of your race aren’t creative enough to do a job, that is race discrimination.

You can’t be treated differently because of your accent in Texas

September 19, 2017 | Law Office of Rob Wiley, P.C.

Both Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 guard against workplace discrimination that occurs on the basis of an employee’s national origin. National origin is a characteristic that refers to one’s birthplace, ancestry, culture, or linguistic characteristics. Often, national origin discrimination overlaps with race, religion, or color, which are also protected characteristics. For example, discrimination against those from Middle Eastern countries can be motivated by both national origin and the assumption that they subscribe to particular religious practices. Accordingly, a complaint we file on your behalf may assert multiple causes of action or grounds of discrimination.

Often, one’s national origin is revealed through accent. For example, if you grew up in Iran and immigrated to the United States as a young adult, you may still have traces of an Iranian accent. Similarly, if you grew up in Mexico and lived mostly among Mexican immigrants after immigrating, you may speak English with an accent.

You cannot be treated differently in a workplace due to your accent or due to a spouse’s or an associate’s accent. National origin discrimination occurs if an employer makes an adverse employment decision based on your accent. For example, an employer is not supposed to refuse to allow you to work in a customer-facing position due to your accent because he wants to create a more wholesome American image for his restaurant. Similarly, an employer is not supposed to turn down a job applicant for a teaching job because he has an Indian accent.

You have the right to a reasonable accommodation in Texas

September 1, 2017 | Law Office of Rob Wiley, P.C.

Under 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.

What high school debaters could teach lawyers about arguing cases

August 17, 2017 | Adam S. Greenfield

A 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.

Why being board certified in labor and employment law matters

August 15, 2017 | Adam S. Greenfield

The 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.

Working off the clock is illegal in Texas (and elsewhere)

August 11, 2017 | Adam S. Greenfield

Sometimes 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.