Dallas Employment Lawyer Blog

Why no Texas employer should be asking about criminal history

August 1, 2017 | Adam S. Greenfield

Your past should not dictate your future in America. Those who are able to work should be able to work and build their futures. Partially due to a failed war on drugs, which disproportionately affected African Americans and Latinos, one in four Americans who are of working age have a criminal record.

This is problematic because arrests and convictions can make it much harder to get a job. About 92% of employers conduct criminal background checks when they hire, and numerous people are disqualified from jobs based on this type of search, even though they’ve already been acquitted or served their time. There are some limited protections for those with criminal records, but they are insufficient. No employer should ask about criminal history.

The Equal Employment Opportunity Commission (EEOC) has determined that employers that take up a blanket policy of excluding all job applicants who have a criminal record may be using a practice that has a disparate impact on African Americans and Latinos. Title VII prohibits employers from treating people who have similar criminal records differently due to race, national origin, or another characteristic protected under Title VII.

Should you be paid for your summer internship?

July 28, 2017 | Adam S. Greenfield

The Fair Labor Standards Act (FLSA) is the federal law that regulates minimum wage and overtime, including how these issues should be handled in connection with a summer internship. Employment is defined broadly such that anyone who is suffered or permitted to work is employed. The United States Department of Labor enforces the FLSA, and it uses a six-part test to decide whether you should be paid minimum wage for your summer internship.

An unpaid internship is only appropriate under the six-part test when: (1) the intern doesn’t displace a paid employee, (2) the internship is for the intern’s benefit, (3) the internship is similar to training that would be provided in school, (4) the employer doesn’t benefit from the intern’s work and sometimes may be disrupted by what the intern is doing, (5) the intern isn’t promised a job once the internship is over, and (6) both the intern and the employer understand that the job is an unpaid position.

If you are closely supervised by existing staff and are not “seasonal help,” you probably didn’t displace a paid employee. However, if your employer would have hired more people to do the work you’re doing if you hadn’t joined as an intern, you are likely entitled to FLSA pay.

When is a break not a break?

July 25, 2017 | Adam S. Greenfield

The eight-hour workday was developed during the Industrial Revolution so that workers doing manual labor in a factory would not have to work as many hours. Prior to that, in the late 18th century, factory workers worked 10-16 hours days to keep factories running 24/7. A campaign was started to have people work no more than eight hours in a day so that they would have eight hours of work, eight hours of recreation, and eight hours of rest. The campaign was successful.

The goal was humane, but it doesn’t take into account our modern situation in which employees who work steadily for hours on end, sometimes for 10 to 12 hours in a day, are assumed to be more productive than employees who take breaks. According to the Bureau of Labor Statistics, the average American actually works 8.8 hours in a day. This is more time than the average worker spends doing anything else.

However, one study shows that workers who take brief breaks are more productive than those who keep working continuously for more hours, regardless of the number of hours they were working overall. Ideally, according to that study, there is an hour of uninterrupted work and then a break of about 15-20 minutes.

What is the difference between “employment at will” and “right to work”?

July 21, 2017 | Adam S. Greenfield

Many people in Texas and elsewhere get confused between “employment at will” and “right to work.” Both of these terms are legal terms associated with employment law, but they have distinct meanings that are crucial to understand.

Employment at will is a common law doctrine. It means that the employer can terminate the employee arbitrarily and for any reason. An employee is also allowed to leave at will for no reason or any reason. Generally speaking, when employment is at will, employers can change the terms and conditions of employment and either increase or reduce wages.

However, in many cases, an employer and an employee do sign an employment contract. In some cases, the contract specifies that termination is only for just cause, or the employer and employee agree verbally that the employment will end only because of a just cause within a specific window of time. Sometimes employee handbooks provide language that shows employment is not at will, as do certain collective bargaining agreements.

Walmart to pay $7.5 million for failure to provide same-sex benefits

July 18, 2017 | Adam S. Greenfield

In July 2015, a Wal-Mart employee sued her employer in federal court, alleging that the corporation had intentionally deprived her of spousal health insurance benefits because she and her spouse were of the same sex. She’d worked for the company for 15 years.

This lawsuit was filed a few weeks after same-sex marriage was legalized by the United States Supreme Court in Obergefell v. Hodges. This holding had broad implications for many areas of law, including the issue of health insurance provided to the spouses of employees. Prior to this holding and an earlier ruling related to federal spousal benefits that struck down the federal Defense of Marriage Act, employers tended to believe they were entitled not to recognize same-sex marriage. For three years before 2014, the company would not pay health insurance benefits to employees involved in same-sex marriages.

Wal-Mart started to provide benefits to same-sex couples in 2014. About 1,200 employees signed up to get these benefits. By then, the named plaintiff’s wife had developed ovarian cancer and had incurred $150,000 in out-of-pocket expenses.

What Fox News teaches us about sexual harassment

July 14, 2017 | Adam S. Greenfield

In April, Fox News host Bill O’Reilly was removed from the network due to allegations of sexual harassment. This was just the latest of claims related to sexual harassment that have arisen from the network’s office culture, and the network paid $13 million to settle five claims brought related to O’Reilly starting around 2002. The network’s CEO, Roger Ailes, had been previously removed after over 20 women accused him of sexual harassment and psychological torture over a 20-year period.

One reason O’Reilly lasted so long was that he was extremely popular with viewers. He’d gotten four million viewers on average each night in 2017, and viewers continued to watch in spite of the allegations. Around 50 advertisers eventually pulled out because they didn’t want to be associated with the claims against him, which involved staff and guests being subjected to aggressive sexual advances, verbal abuse, and lewd comments. The staff and guests were ignored when they reported it to management, which is unsurprising because the CEO appears to have also been involved in sexually harassing people.

All the way back in 2002, O’Reilly was observed berating a junior producer, who settled for a small amount. Two years later, another producer sued for sexual harassment on the grounds that O’Reilly had told her inappropriate stories about his sex life, advised her to buy a vibrator, and detailed sex fantasies to her over the phone while masturbating. O’Reilly responded by suing the victim, claiming she was extorting him. They settled for $9 million.

EEOC settles class action against Texas Roadhouse for alleged age discrimination

July 11, 2017 | Adam S. Greenfield

This lawsuit was based on the Age Discrimination in Employment Act (ADEA), which prohibits discrimination. It protects job applicants and employees who are at least 40 years old from age discrimination with regard to hiring, promotion, compensation, terms or conditions of employment, and termination. It’s enforced by the Equal Employment Opportunity Commission (EEOC). Under federal law, there is no age discrimination against employees who are younger than 40 years old.

You may be able to establish an age discrimination case under federal law by proving: (1) you’re a member of a protected class of people ages 40-70, (2) you suffered an adverse employment action, (3) people much younger than you filled the position that you wanted or from which you were terminated, and (4) you were qualified for the job that you were dismissed or rejected from doing. Generally, your age must have been the only reason the employer decided to take an adverse step against you.

If you’re able to establish discrimination under the ADEA, your employer must articulate a valid nondiscriminatory reason for taking the step against you. Sometimes an employer offers one or more valid reasons, the presumption that you were discriminated against is eliminated, and then you’ll need to present evidence that is enough for a fact-finder to decide that the employer’s reasons were a pretext to take the decision that was taken. Often, it’s necessary to conduct discovery to show that there are contradictions or inconsistencies in how the employer acted.

Can women make it in the tech industry?

July 7, 2017 | Adam S. Greenfield

The technology industry is widely known for embracing different and disruptive ways of doing things. Technology leaders often break with tradition and beat their own drum. However, when it comes to hiring women, the technology industry does not have a positive track record. This doesn’t mean that women can’t make it, but it does mean that they will likely face an uphill battle.

Women make up 59% of America’s total workforce but make up only 30% of the workforce in major technology companies. Often, they are put into jobs like marketing or HR. They only hold about 17% of Google technology jobs and 15% of technology jobs at Facebook. Only five of the 41 Fortune 500 companies in the technology sector have a woman CEO. About 40% of women who have an engineering degree don’t wind up in a job or stay long enough to rise in their career.

The problem of sex discrimination in the tech industry has recently been given a lot of play by the media. In April the Silicon Valley company Palantir Technologies agreed to pay $1.6 million to settle charges of hiring discrimination, among other accusations. Palantir is a software company founded in 2004 that specializes in data analysis. Its clients are private companies, law enforcement agencies, and federal government agencies. The company is prohibited by law from discriminating on the basis of race, national origin, color, or sex and is supposed to take steps to affirmatively ensure equal opportunities.

Women are still paid less than men. When will we finally get equal pay for equal work?

June 23, 2017 | Adam S. Greenfield

In spite of overblown claims about post-feminism in the past several years, women continue to be paid less than men over their lifetimes. Often, those trying to fight this fact argue that women might be paid less because they have more responsibility for children or because they don’t negotiate their salaries as well or because they choose lower-paid positions. However, gender bias affects women of all ages, education levels, and races.

According to a study by the American Association of University Women (AAUW), women working full time in the United States are paid just 80% of what men are paid, which is a gap of 20%. The gap is even worse for women of color, although it has narrowed since 1960. Women are only expected to reach pay parity with men in 2059, and then only if progress doesn’t stall as it has since 2001. Recently, progress has stalled, and it is possible women’s salaries won’t be on par with men’s salaries until 2152—not even during the lifetimes of girls born today.

As a result of the gender pay gap, about 14% of adult women under age 65 are living below the federal poverty level, as compared to 11% of men. Meanwhile, 10% of women over retirement age are living below the federal poverty level. The pay gap continues to affect retirees because when women retire, they don’t get as much income from Social Security or pensions because they were paid less during their work years.

Texas non-compete laws are killing Austin’s chances of being the next Silicon Valley

June 20, 2017 | Adam S. Greenfield

Silicon Valley has been successful partially due to employee mobility. California forbids non-compete agreements, and it’s a fundamental policy of the state that any agreement in restraint of competition is to that extent void. There are certain exceptions, such as a person selling the goodwill of a business to a buyer who wants him or her to refrain from carrying on a similar business within a certain geographic area in which the original business has been sold.

However, most non-compete agreements that are enforceable to restrict workers in other states are void in California. Almost one in five employees in America is now subject to a non-compete clause, and many of these employees are in low-paying or blue collar jobs. For example, a well-known case involved the sandwich chain Jimmy John’s, which tried to stop its former franchisees from working for other sandwich makers. As a result, Silicon Valley employees are able to shift tech jobs relatively easily. The result has been substantial innovation.

Researchers have found that non-compete clauses in other states force workers to stay longer in one job, and they earn less than they would in a state like California, or in a country like Israel, which is also hostile to non-compete agreements. Although firms may invest more in research and development if their investment is protected by a non-compete clause, a worker who is locked into a particular company invests less in self-training, and this affects what the worker produces and creates. Ultimately, non-compete clauses chill innovation more than they help it.