Dallas Employment Lawyer Blog

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.

Last Minute Shopping? Bring Kindness.

December 22, 2022 | Paige Melendez

Whether you are last minute shopping or merely intend to do some shopping during the busiest shopping time of the season, we all know that stores become packed. This includes lines of people longer than normal, harried store associates racing to re-stock shelves and answer questions, and customers becoming less patient. It’s the last symptom that brings forward my trite recommendation for this holiday season: Be Kind. This mantra is used year-round for various purposes – believe me, I too roll my eyes – but in the context of an at-will employee diligently working during the winter, it makes sense to be reminded and here’s why. In my last blog I looked at how holiday hours are only beneficial if you can and do work overtime hours. This blog is about how workers are treated during those busy holiday hours by customers and store management.

If you have ever had to work in any kind of customer service position or retail job, then you are aware that the holiday season brings a type of dread with it. Most customer service based positions and almost all retail positions are hourly employment jobs and deemed to be at-will. At-will employment in Texas means that there is no job protection for these workers, and they can be fired for any reason or no reason at all. For example, take Rhonda – a cashier – putting in her very best efforts, battling the long lines of patrons and getting them through the checkout line as quickly as she possibly can. Drake, her manager, who is upset at how many customers are complaining during the holiday season, may not care about Rhonda’s best efforts. All he hears and cares about are the customers complaints over the predictably long lines. After being on her feet all day, and even working overtime hours with the store staying open late, Rhonda could be fired. Rhonda would have no recourse if her unreasonable manager terminated her employment for a legitimate non-discriminatory reason like customer complaints about long lines in front of her cash register.

Aside from her manager’s obtuse lack of understanding about the holiday shopping season, Rhonda may feel some modicum of relief at being relieved of her job duties. It may be shocking to think that someone losing their job during the middle of the holiday season would have any benefits, but the silver lining for Rhonda may be the fact that she no longer has to put on a happy face as customers continually berate her.

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.