Dallas Employment Lawyer Blog

Gig workers: Employee or independent contractor?

December 19, 2022 | Haylie Davis

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.

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

December 5, 2022 | 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.)

Next, we turn to the myth that started it all: employees get paid extra to work on holidays. This myth is both true and false like all good myths. The true part is that if working on Black Friday pushes non-exempt employees over the 40-hour threshold, employers are then required to pay time and a half like any regular overtime. The false part is that there is no requirement under the FLSA that says employers must pay workers time and a half simply for working on a holiday if those hours do not count for over 40 hours. Therefore, it can be beneficial for employees to work on holidays because the hours are longer and more likely to net overtime pay, but there is no benefit just by working on a holiday.

The Twitter Showdown: Layoffs and the Law

November 28, 2022 | Deontae Wherry

Twitter’s new CEO, Elon Musk, cannot stay out of the courtroom. Just a few months ago, Twitter sued Mr. Musk after he attempted to walk away from purchasing the company despite the parties reaching an agreement. The court set Twitter’s lawsuit for trial in October 2022. Weeks prior to the trial, Mr. Musk unexpectedly agreed to proceed with his original offer to purchase Twitter.

When Mr. Musk officially acquired Twitter, he immediately terminated the company’s top executives. Mr. Musk did not stop there; subsequently, he randomly laid off several employees without notice. As a result, these employees are suing Twitter for not giving proper notice regarding their layoff. Less than a month into Mr. Musk’s leadership of Twitter, Mr. Musk and his company are back in the courtroom. One would think that an experienced executive would consult an attorney prior to unreasonably exposing his company to potential liability, but not Mr. Musk who seems to make impulsive decisions.

The employees’ lawsuit alleges that Twitter violated the WARN Act when Mr. Musk announced that he would be reducing Twitter’s global workforce. It was speculated that the layoff could affect 50% of Twitter’s workforce. Since this lawsuit, Twitter has taken measures to reduce its potential liability under the WARN Act.

Are Americans working later and later in life, and what does this mean for them?

November 21, 2022 | Austin Campbell

Summary: This article briefly looks at the trend of the aging workforce—sensationalized or real? It also touches on some of the positive and negative impacts of that potential trend.

In the last decade or so, the media has begun talking about the so-called “graying” of the American workforce—the idea that people are working later in life and retiring later, if at all. Sometimes this is talked about in almost apocalyptic terms when it comes to productivity and benefits. First, this article touches on the actual extent to which that is true. Second, because a lot of coverage of this phenomenon seems to be from a “macro” (i.e., employer’s) perspective, this article briefly explores some of the implications of that trend for the workers’ themselves.

First of all, this is a real trend: the U.S. Bureau of Labor Statistics estimates that the share of the workforce age 75 or over will almost double by 2030. This is in large part driven by the Baby Boomer generation. However, in absolute terms this “problem” may be bit overblown by the media: those same projections say the share of the workforce in the 55-74 age bracket will actually decrease by 2030, and even the 75+ age bracket will be less than 12 percent of the workforce by 2030. In addition, while the average age of retirement is going up, it is doing so slowly, creeping up by approximately 3 years since the early 1990s. Life expectancy overall has been increasing, though not during the pandemic years; it remains to be seen if the upward trend in that resumes. Though not some immediate existential threat, this aging of the population likely will put increasing pressure on our social safety nets.

Welcome to the Era of Salary Transparency

November 10, 2022 | Haylie Davis

Have you heard it’s “taboo” to talk about your salary? Us too. Well, that is out the window now. Welcome to the era of salary transparency. Yes, we know it can be awkward to talk about salary, but with new laws on the horizon, it may be a little easier to figure out how much your co-workers are getting paid.

Recently, the New York City Council passed a law requiring employers in New York City with four or more employees to list the minimum and maximum salary on all job posting including ads, promotions, and transfer opportunities. This law applies to any position that can or will be performed, in whole or in part, in New York City. This affects remote listings, meaning any job that could conceivably be done in New York City must follow this.

So why did the New York City Council deem this necessary? They passed this law to try and fight against big pay gaps, specifically between genders as well as between majority and minority racial groups. Let’s be honest, pay matters. It affects where you work and how long you decide to stay there.

A lawyer’s experience with jury duty

October 27, 2022 | Austin Campbell

Summary: This more light-hearted article talks about the author’s recent experience with jury duty and how a lawyer’s perspective differs from that of a layperson.

Immediately after I had the opportunity to pick a jury in one of our federal trials in September 2022, I had an entirely new experience: actually having jury duty of my own. This was far from the familiar halls of civil court, but brought me to the Frank Crowley Criminal Courts Building. I don’t know how I “escaped” being called for so many years, but those two things just happened to coincide less than a week apart.

From a lawyer’s perspective, jury duty—much like the decisions a jury makes—can be a mysterious black box. Especially because each judge runs their courtroom differently, we may not even have a clear idea of what to expect until the last second. Right before jury selection (the start of any jury trial), the lawyers for both sides will get some information about each prospective juror. Depending on the case, it might be as little as name, occupation, and spouse’s occupation, or as much as a multi-page survey.

It’s All About Timing

August 25, 2022 | Paige Melendez

Retaining an attorney is never an easy decision, but it should also not be a last resort. The reason why timing is so important is that unfortunately the legal system moves slowly. Even if your case is not tangled up in an ineffective judicial system, it can be tangled up in something worse: attorney’s schedules. Despite how it is portrayed on television, most of law is negotiating with the attorneys on the other side to try and work out a resolution. We are opponents on either side, but the best resolutions come from an agree to disagree attitude with a common goal to resolve things for both our clients. With that being said, as a client there are certain timing issues to be aware of before thinking about retaining an attorney.

The first timing issue is when to retain an attorney. An attorney being utilized as a last resort sometimes makes sense if there is some legal matter that cannot be handled without one. However, using an attorney as a last resort in situations that are ongoing will ultimately make it more difficult – and here’s why: if the goal is to get a settlement quickly through an attorney and a lot of very serious issues rely on this “quick” timing, you will be disappointed. The law does not work expediently and rewards those who are patient and can stand to the last day of battle. It’s kind of like playing a game of chicken. You have to prepared to go all the way without swerving. If there is a strict timeline attached because of extraneous issues, then it makes things more difficult because sometimes legal schedules do not always match up with personal timelines. It’s also something the other side can take advantage of.

For example, summertime is a big holiday season for individuals across the world. The same is true for attorneys and their clients. Everyone has overlapping vacation scheduling and things just move slower. Not out of spite for anyone, but because it is summertime and the beaches are calling. By the same logic, November, December and January are also slow months because there are major holidays that fall during those times, though sometimes companies like to settle by the end of the year. Therefore, if you have a choice on when to retain to get the fastest results spring or fall may be the best seasons.

What are my options if my employer forces me into court far from home?

August 18, 2022 | Austin Campbell

Summary: This article discusses some strategies, including different contract clauses, that employers might use to try to control where you can sue them, or to try to sue you in a far-away place.

If you are in a legal dispute with your employer, where the lawsuit is filed can make a big difference. That affects who the judge is or who might be on the jury. Exactly where a lawsuit can be filed depends on the nature of the legal claims in it. However, two basic principles generally apply. If there are multiple permissible options of where to file suit, the party filing suit gets to choose where to file suit. However, the location must be somewhere that has “personal jurisdiction” over the defendant—i.e., the defendant has to have sufficient connections to the location for it to be legally “fair” to sue them there. This article, however, explores ways that employers may try to get around these basic principles through contracts containing “forum selection” or “venue selection” clauses.

While Texas is an at-will state and sometimes you may have next to nothing in writing from your employer that controls the terms and conditions of your employment, your employer might force you to sign things like a non-compete or an arbitration agreement as a condition of employment. Those may contain language trying to force any disputes to be heard somewhere specific to get around the usual rules for where they should be heard.[1] This can potentially result in situations where you, a Texas employee, are either sued or have your lawsuit moved to a location far from you or even out of state. This might also result in non-Texas employees being sued or forced to only sue in Texas.

The Truth Will Not Hurt You!

August 12, 2022 | Deontae Wherry

Searching for a job in today’s job market can be a tedious and competitive process. Employers are adding more requisites and qualifications to job postings in an attempt to attract the best candidate. That, in turn, requires candidates to find ways to better market themselves, including sometimes exaggerating their skills and qualifications on their resume and application or misrepresenting why they left their last employer. Let me warn you—don’t misrepresent your qualifications or the reason you left your employer. If a job is meant for you, the job will be for you.

How can a misstatement on an application affect you in an employment case?

For purposes of this article, employers will use any information that will undermine the employee’s credibility. Put simply, one of the employer’s objectives is to show that employee is not trustworthy. One way to do that is by looking to an employee’s application to determine if the employee misrepresented his or her experiences, qualifications, or previous job history. If you intentionally mispresent information on your application or your resume, the company will also use your misrepresentation against you as an after-acquired evidence defense. The best way to avoid helping an employer build one of its defenses is by being truthful.

Abortion Rights are Employment Law

August 4, 2022 | Paige Melendez

The dissolution of abortion rights that should be guaranteed as substantive due process rights have a direct impact not only on healthcare, but on employment. I know that’s odd to say, but it’s a person’s personal health decision that should not be interfered with, even by their employment. However, with the Supreme Court’s decision a flurry of companies began to step in to protect abortion rights in a private sector way. This is untenable as a solution. While helpful in the short-term, it creates a complex picture for employment discrimination.

As a hypothetical, let me set up Grayson. They are currently pregnant and would like to access abortion in a different state. Their employer is Be Free Sporting Goods who has promised that they will give time off and leave to allow Grayson the opportunity to pursue abortion access outside the restrictive laws of states like Texas. Despite this being a personal healthcare choice between them and their doctor, Grayson now has to disclose their decision to access abortion to their human resources department. Be Free is a big corporation – their decision is not communicated to one person, not even two people, but several people must work on the request before it is approved. Grayson’s request is then denied because Marla in the human resources department has a sincerely held religious belief that abortion is wrong. And this juncture is where the private sector’s “solutions” to abortion access fall short.

On one hand, Grayson should have the absolute right to make private healthcare decisions about their own body without interference. Yet, an employer’s approval process just puts more strain on their decision, one that did not exist pre-Dobbs – before the Supreme Court made a judicial decision that appeared more political. The denial of Grayson’s leave requests invokes employment law in a myriad of ways. The right to abortion only affects individuals with the ability to become pregnant, but is it pregnancy discrimination if the intention is to access abortion thus ceasing the pregnancy? Is it sex discrimination because a transman, who has the capacity to become pregnant “shouldn’t be pregnant” and so the human resources department discriminates based on sex because of this man’s decision to become pregnant?