— Discrimination Category Archives — Page 2 of 9 — Dallas Employment Lawyer Blog Published by Dallas, Texas Employment Lawyers

Statute of Limitations Laws: The Clock is Always Ticking.

April 28, 2022 | Rob Wiley, P.C.

Time does not stop for anyone. There are time limits for filing claims against your employer. In fact, state and federal claims have different deadlines for different types of claims. When pursuing a claim against your employer, it is important to note the statute of limitations for the claim you intend to pursue. The biggest mistake I see employees make is waiting too long to pursue a claim. If the statute of limitations for your claim has expired, you will not be able to pursue your claim – even if you have a strong claim. There’s no way around it. Below are some of the most common employment-related claims and each claim’s respective statute of limitations.

Discrimination, Harassment, Sexual Harassment, Hostile Work Environment, and Retaliation.

Claims of discrimination, harassment, sexual harassment, hostile work environment, or retaliation under Title VII of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990, must first be filed with the United State Equal Employment Opportunity Commission (“EEOC”). A complaint with the EEOC must be filed within 300 days of the adverse employment action. An adverse action can range from a write-up to termination. If you do not file a charge of discrimination or retaliation with the EEOC within 300 days of the adverse action, you lose the right to pursue your claims in court.

The Good News and Bad News about Owing Money to the TWC

April 21, 2022 | Paige Melendez

At first glance, describing owing a debt in any way “good” seems erroneous, but most debts cannot be appealed. For the Texas Workforce Commission or TWC, overpayment decisions that state that a claimant for unemployment benefits has been overpaid and now owe that money back are not out of the ordinary. Typically, overpayment notices occur when a claimant has lost their appeal to qualify for unemployment benefits or the initial claim is found to be invalid. In TWC land, practically everything is appealable and the same is true for overpayment notices. And that is what creates the good news. If you have received an overpayment notice saying your unemployment benefits were overpaid, you have that same 14-day window to submit your appeal either for the overpayment itself or for the issue that resulted in an overpayment.

To appeal the overpayment determination for federal extended unemployment compensation, the TWC looks at whether the payment was made non-fraudulently, the overpayment was not the fault of the claimant, and that forcing a claimant to repay the amount would go against equity and good conscience. Within those categories the TWC considers things like whether a claimant received benefits even though they knew they were not eligible, whether the overpayment was a result of a decision on appeal, or whether financial hardship will befall the claimant if they are forced to pay it back.

The bad news is that if you lose the appeal or do not appeal within the allotted time, then you will owe money to the TWC. This could cause you to likely pay back most, if not all, the benefits that were paid out to you as unemployment. As a preliminary matter, if you have the ability to do so, there is the option to simply pay back the amount. That path is not available to a lot of claimants, which puts the situation into the bad news column. But wait, there’s good news in that, too! Thankfully, the TWC allows claimants who were overpaid to setup payment plans in certain situations, so there could be an option to not pay it back all at once. On the whole, owing money to the TWC seems like it is all bad news, but the ability to appeal the determination brings some positives to the situation. However, unemployment benefit overpayment notices can be tricky, so speak to a Dallas Employment Lawyer to see what your options are to appeal an overpayment or unemployment benefits determination.

Mental Health is Wealth: Tap into your resources.

February 10, 2022 | Rob Wiley, P.C.

The death by suicide of Cheslie Kryst was a big wake up call. Mental illness is prevalent amongst Americans now more than ever. According to data collected by Mental Health America, Texas is the second most prevalent state for mental illness. As a Texas employee, you should be aware of the resources available to you.

Historically, many cultures have viewed mental illness as a form of religious punishment or demonic possession. Negative attitudes toward mental illness persisted into the 18^th century in the United States, leading to stigmatization of mental illness, and confinement of mentally ill individuals. As a society, we still have negative views of and oftentimes downplay the severity mental disabilities. In fact, I just watched an episode of the Bachelor where one contestant mocked another because she suffered from ADHD. I was disgusted by such a display of ignorance, but at the same time, was proud that mental health was being talked about on a such a widely televised platform.

I say that to say that although there are individuals who still have negative attitudes toward mental illness, it is no longer a taboo topic that we must be hush hush about. In 2021, approximately 19% of adults experienced a mental illness, which is equivalent to 47 million Americans. In addition, 7.67% of adults reported substance abuse disorders in 2021. Approximately 10.7 million or 4.34% of adults experienced severe suicidal thoughts in 2021. These are just the statistics for adults. Children also experienced high rates of depression, substance abuse, and suicidal thoughts.

Navigating the EEOC Process: Responding to the Employer’s Position Statement

February 4, 2022 | Deontae Wherry

Perhaps you have filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and you have been requested to respond to the employer’s position statement. But, you do not know where to start. You may be asking yourself a few questions such as “What is a position statement?” and “What should be included in my response to the employer’s position statement?”. This article will, hopefully, answer some of your questions concerning your response to the employer’s position statement.

A position statement is the employer’s responsive statement to the claims presented in the employee’s charge of discrimination. It is simply the employer’s opportunity to share its version of the facts. While the EEOC states a position statement should be “clear, concise, and complete,” position statements are often the complete opposite. They are generally inundated with policies that are unrelated to the claims at hand and a host of issues concerning the employee’s performance. However, do not panic—here are a few tips:

1. Read the employer’s position statement in its entirety – The purpose of this step is to ensure that you understand the basis of why the employer feels that it has not violated the law. When employees do not have attorneys, this is usually the first time when the employee learns of the employer’s position.

Lights, Camera Action: Get Your Popcorn Ready – The Supreme Court is Back in Session and COVID-19 is on the Agenda!

January 6, 2022 | Rob Wiley, P.C.

Employment issues will again take center stage at the U.S. Supreme court on January 7, 2022, and appeals related to vaccine mandates are sure to be the main attraction. Alas, vaccine mandates will be squarely before the Court and audiences nationwide will soon receive some clarity from the nation’s highest Court regarding vaccine mandates in the workplace.

Enforcement of the Biden Administration’s vaccine mandates applicable to government contractors, CMS and large employers had been stayed or partially stayed by various federal courts. The OSHA Emergency Temporary Standard (ETS) applicable to most employers having 100 or more employees was stayed by the Fifth Circuit Court of Appeals prohibiting enforcement of the rule. However, on December 17, 2021, the Sixth Circuit Court of Appeals, which was chosen by lottery to hear the consolidated appeals challenging the ETS, dissolved the stay that the Fifth Circuit put in place. Thus, employers with 100 or more employees that are not specifically exempt from the standard due to disability or religious belief must now take steps to comply with the emergency rule. Judge Stranch delivered a gripping opinion addressing the question that has been vexing employers since the beginning of the pandemic:

Recognizing that the “old normal” is not going to return, employers and employees have sought new models for a workplace that will protect the safety and health of employees who earn their living there. In need of guidance on how to protect their employees from COVID-19 transmission while reopening business, employers turned to the Occupational Safety and Health Administration (OSHA or the Agency), the federal agency tasked with assuring a safe and healthful workplace.

Texas v. New York: Which state offers more protections to employees? The answer will not surprise you.

December 2, 2021 | Rob Wiley, P.C.

It is no secret that in the past few years companies have been moving their principal places of business from progressive states, like California or New York, to Texas. Texas has been known as a “business-friendly” state, and for good reasons. Among other things, Texas has a healthy economy, a prime location in the center of the country, no state income tax, and affordable cost of living.

One major factor that doesn’t receive much publicity is Texas’s far less-restrictive labor & employment laws. After all, a company relocating thousands of its employees to work in Texas means a lesser risk of violating more restrictive laws in states like California or New York.

So how is Texas different from other progressive states when it comes to employee rights? To answer this, let’s explore some of the labor & employment laws of the state of New York.

Holiday Cheer and Termination Fear: Can I be fired for my behavior at a work holiday party?

November 18, 2021 | Rob Wiley, P.C.

It’s the most wonderful time of the year. Love them or hate them, this is the time of the year during which employers are finalizing holiday party plans. After a long pause on holiday parties due to Covid-19, many employers are gearing up for their first holiday party since the pandemic. Work holiday parties are a time for employees to get together, socialize, and celebrate a year well done. This is your opportunity to shake hands with the movers and shakers. However, holiday parties are notoriously known to pose serious risks for employees, especially if alcohol is served.

Let’s address the big Texas elephant in the room. Texas is an “at-will” state. That means your employer can fire you for no reason or any reason, short of unlawful discrimination or retaliation. In Texas, termination caused by your actions at a work holiday party is no exception to the “at-will” rule.

Following the holiday season, I typically notice an increase in consultations from employees who were terminated based on their behavior at a holiday party or who were either sexually harassed or discriminated against at a holiday party. A typical misconception is that your behavior and your employer’s behavior at a holiday party is not subject to workplace polices or procedures or employment laws. However, you are still subject to workplace policies and your employer is still subject to labor and employment laws, regardless of whether the party is held at work or off-site.

The Vaccine Mandate

November 5, 2021 | Deontae Wherry

COVID-19 has dictated much of our daily activities over the last 20 months. It seems that COVID-19 is not going away anytime soon neither is the vaccine mandate. Yesterday, President Biden’s administration fulfilled its promise that it would take more aggressive steps in getting more Americans vaccinated. The administration announced additional vaccine mandates affecting more than 100 million workers. In this article, I will explain what this mandate means for employees.

Coverage

The purpose of the COVID-19 mandate is to minimize the risk of COVID-19 transmission in the workplace. This mandate does not apply to every company; instead, this mandate applies to private companies with 100 or more employees, healthcare workers at facilities participating in Medicare or Medicaid, and federal contractors. If you work at one of these entities or you are a federal contractor, this mandate applies to you. However, private companies with fewer than 100 employees may still mandate the vaccine as a condition of employment. One clear distinction of this mandate is that it does not apply to employees of a covered company who work exclusively outdoors, or from home.

Give me a Break: Are Texans entitled to Lunch breaks?

September 30, 2021 | Rob Wiley, P.C.

Aside from New York’s magnificent architectural treasures and California’s amazing weather and beautiful beaches, what sets these two states apart from Texas? New York and California have strict requirements for employers to provide meal and rest breaks to employees, while Texas does not.

Under Texas law, there is no requirement for employers to provide meal breaks to employees. Similarly, the federal Fair Labor Standards Act (“FLSA), does not mandate meal breaks. Thus, Texas employees are not entitled a meal break.

However, the FLSA requires employers to provide nursing mothers reasonable break times, usually about 30-minutes, to express breast milk, or if children are allowed in the office, to nurse their infants, during the first year after the baby’s birth. This requirement only applies to non-exempt employees (i.e., those who are entitled to overtime pay for overtime work), and it exempts employers with less than 50 employees if it causes an undue hardship for the employer to provide such breaks.

Don’t Move the Goalpost

September 16, 2021 | Deontae Wherry

As a young athlete, I remember the phrase, “Don’t move the goalpost.”

The phrase is often used in sports to describe changing the criteria, or goal, while the game is still in progress. Outside of the sports arena, the phrase is commonly used as a metaphor when the goal is changed after someone has begun an act or process in an attempt to reach said goal. It may be perceived that a person is placed at an advantage or disadvantage when the goal is changed. Now as a lawyer, sometimes I find myself saying, “Don’t move the goalpost.”

As the client, you set the goals for your case. This is where you tell your attorney what your desired outcome is. If you don’t know what your options are, ask your attorney to walk through the potential outcomes. In many employment law cases, employees want a severance for lost wages, a neutral reference for prospective employers, a reasonable accommodation for a disability, or reinstatement of an old position. This is not an exhaustive list, but represents some of the common goals that clients desire. Be sure to sit down with your attorney to discuss all your options.