Dallas Employment Lawyer Blog

What Happens on “Four Twenty-One”?

April 24, 2023 | Paige Melendez

April 20th or “Four Twenty” just passed and whether you chose to celebrate by engaging in marijuana use (within the confines of state and federal guidelines) or you used the day to engage in civic discourse regarding the legalization of marijuana, the true question is: what happens on Four Twenty-One. The reason why the day after “Four Twenty” is so important is because of the general understanding that employees have a higher potential to engage in marijuana use the day before. This brings up the question of drug-testing in the workplace. The legality of drug testing employees remains a controversial issue, with some arguing that it is an invasion of privacy, while others maintain that it is necessary to ensure a safe and productive workplace. Generally, drug testing is legal, but like always there are certain guidelines and caveats that employees should be aware of when an employer announces or requires a drug test.

A good offense is a must when it comes to drug testing, that’s why it is an important first step to read up on the employer’s drug testing policy whether in the employee handbook, an online posting, or any new hire paperwork. The second step is understanding that an employer’s drug policy is not limitless because drug testing must still be conducted in a non-discriminatory manner. This means that employers cannot single out certain employees for drug testing based on their race, sex, age, disability, or other protected characteristics. An example of this would be if an employer announced a random drug test, but the “random” people chosen were all part of the same racial group. Thus, while an employer can legally drug-test its employees, there are limits to how the tests are conducted.

Part of learning about your employer’s drug policies is learning about what type of drug test is being administered. Some common tests include urine tests, blood tests, hair tests, and saliva tests, but each type of test has different detection windows, and some may be more accurate than others. If there are questions or concerns about the type or accuracy of a drug test, it is always best practices to email any concerns to human resources to create a record as well as to get answers directly from the source.

Anti-Poaching Agreements May Leave Employers with Egg on their Face

March 31, 2023 | Robert J. Wiley

Dallas Employment Trial Lawyer Rob Wiley

A no-poaching agreement is an agreement between two or more companies not to hire or solicit each other’s employees. It could be a contract between two companies in the same industry. It could be a contract between a company and a vendor.

It’s easy to see why employers might be tempted to use non-poaching agreements, particularly in a tight labor market with low unemployment. But the reality is that non-poaching agreements suppress competition for labor and limit employee mobility. This will result in lower wages and benefits for workers. This is particularly abusive to the worker who loses out on a job because the new employer is bound by an agreement the worker never signed (and may not even know about).

Disability Leaves and the FMLA

March 31, 2023 | Deontae Wherry

Short-term disability, long-term disability, and the Family Medical Leave Act (FMLA) are three types of legal protections for employees who need to take time off from work due to illness, injury, or the need to care for a family member. While these protections may seem similar, they each have unique features and eligibility requirements that employees should be aware of. In this article, we will explore the differences between short-term disability, long-term disability, and the FMLA.

Short-Term Disability

Short term disability (STD) is a type of insurance that provides income replacement to employees who are unable to work due to a non-work-related injury or illness. The duration of STD benefits varies by policy, but typically lasts between three and six months. STD benefits are designed to provide employees with a portion of their regular income while they recover from an injury or illness, allowing them to pay their bills and meet their financial obligations.

When the Ship Sinks

March 2, 2023 | Paige Melendez

When a company files for bankruptcy, the media plasters photos of their “going out of business” signs and empty storefronts to announce that the company could be no more. What is not shown is the complex, often long process of actually filing for bankruptcy. Filing for bankruptcy also comes in different flavors and different factors may help employees’ situations. To give a general idea of how bankruptcy affects employees, below we’ll look at the types of bankruptcy as well as examine the additional factors that may change the outcomes for employees. All in all, the announcement of bankruptcy can be terrifying for any employee that is currently employed by that company, but by learning more about the process it can help employees make more informed decisions.

Beginning with types of bankruptcy, if a company files under Chapter 11, it means that the company may attempt to reorganize and continue operating under court supervision. In this case, the company may have to make difficult decisions such as reducing its workforce, closing unprofitable departments, or renegotiating contracts with suppliers and creditors. The company may also be able to negotiate with labor unions to reduce salaries or benefits temporarily. However, in some cases, employees may be able to keep their jobs or be rehired once the company emerges from bankruptcy.

Another potential filing is under Chapter 7 or where a company is liquidated. Liquidation means that a business’ assets will be sold to pay off its creditors. In this case, employees will likely lose their jobs, and the bankruptcy trustee will use the proceeds from the asset sales to pay any outstanding wages and benefits owed to them. This situation is not ideal, but there’s still another option.

Living in a corporate panopticon? Employer surveillance in Texas

February 24, 2023 | 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.

Employers are monitoring employees using many different methods these days. Beyond the “traditional” security camera, you may also encounter things like keyloggers, GPS tracking, audio surveillance, the requirement to have your webcam on throughout the day if working from home, reading employee emails/chat messages, or even social media stalking.

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

February 24, 2023 | Robert J. 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.

When an employee has a disability that affects their ability to perform the essential functions of their job, the employer has a legal obligation to provide a reasonable accommodation. A reasonable accommodation is a modification or adjustment to the job or work environment that enables the employee to perform the essential functions of their job without undue hardship to the employer.

Knowing When to Throw ‘Em

February 7, 2023 | 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?

That decision should be informed by a multitude of factors and most of them have nothing to do with the law. I know, the law not being one of the main contenders seems like an odd stance, but there are so many relevant human considerations that should be taken into account instead. To take care of this, let’s suppose that the question of filing a lawsuit has already been decided – there are grounds to file, the Firm agreed, and the only decision to be made is whether to go for it.

New Year, New Me: Not Tolerating Discrimination This Year

January 19, 2023 | 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?

Workplace discrimination can appear in many forms. Sometimes, it is open and obvious; other times, it is subtle. But not all discrimination is illegal. Discrimination is only illegal when your employer discriminates against you because of a protected characteristic such as you race, national origin, disability, age, religion, or sex. Discrimination also includes harassment because of a protected activity. If you believe your boss is discriminating against because you like red socks, then that is not unlawful discrimination.

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

January 10, 2023 | 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.”

Retaliation like that is a type of “unfair labor practice,” and the NLRB is empowered to make workers “whole” in such situations. That is, to put them in the position they would have been in but for the retaliation, restoring the “status quo.” In the past, for employees that was often limited to backpay (that is, lost wages if they are fired or demoted) and/or job reinstatement. While those are certainly major parts of making someone whole, they may not account for every way in which retaliation can harm someone. For instance, if you were fired in retaliation for concerted activity and had to relocate across the country for a new job, those moving expenses might not have been covered even if you proved retaliation happened.

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.