Dallas Employment Lawyer Blog

Can a Texas Employer Require Employees to Pool Tips?

October 25, 2018 | Law Office of Rob Wiley, P.C.

For those who work in the service industry, the importance of tips cannot be overstated. Many service employees work primarily for tips, meaning that their employer only provides them with a minimal level of base hourly compensation. Thus, for many service employees, their lives literally depend on the amount of tips they bring in.

On its face, the concept of tipping seems to only benefit the employee receiving the tip. However, over the years, employers have also found ways to benefit from society’s expectation that an employee will be tipped for the services they provide. For example, under Texas law, an employer is able to pay a tip-eligible employee less than those employees who do not receive tips by taking a “tip credit.”

A tip credit is an adjustment that employers can make to a tipped employee’s wage, assuming that the employee will make up the difference in tips. For example, the minimum wage in Texas is $7.25/hour. However, an employer only needs to pay a tip-eligible employee $2.13/hour. The remaining $5.12/hour is considered a tip credit. If, however, the employee does not bring in at least an additional $5.12/hour, the employer will be required to pay the difference. Thus, tipping allows for an employer to pay its tipped employees less than they pay non-tipped employees.

What Is Reverse Discrimination and Is It Legal in Texas?

October 19, 2018 | Law Office of Rob Wiley, P.C.

The United States has a long history of discrimination against various groups, including racial minorities and women. And it should come as no surprise that the most desirable jobs are filled by those who have been given the best opportunities to succeed by not having the road-block of discrimination erected in their path. This often means that certain minority groups, as well as women, are poorly represented across certain industries.This fact has led some private and public-sector employees to engage in what is known as “reverse discrimination.” Essentially, reverse discrimination is exhibiting the preference of a minority candidate over a candidate of a majority group.

Discrimination is often used in the context of adverse action being taken against a person in a minority group. However, that is not necessarily always the case. When an employer exhibits a preference for one group over another based on an immutable characteristic such as race, they are engaging in a form of discrimination. However, the Texas Labor Code and Civil Rights Act of 1964 apply to all citizens equally, regardless of whether they belong to a majority or minority group.

Why Employees Should Avoid Arbitrating Their Texas Employment Law Cases When Possible

October 10, 2018 | Law Office of Rob Wiley, P.C.

When a Texas employment issue arises, there are several methods by which it can be resolved. Traditionally, the aggrieved employee would file a lawsuit in a court of law with the intention that a judge or jury would ultimately resolve her or his claim.

However, over the years, alternate means of settling claims have become more and more popular. For example, in a recent blog post, we discussed how mediation may be a good way for an employee to resolve an employment claim. This is because the mediation process involves a trained expert helping the parties come to a mutually acceptable solution to the issue. If the parties cannot come to a final agreement, then neither is bound by what occurred during the mediation or by any recommendations of the mediator.

Another form of Texas employment dispute resolution is called arbitration. Arbitration is much less favorable for Texas employees. The process involves a private, non-judicial decision-maker, called an arbitrator, who hears a case and issues a decision. Unlike the mediation process, arbitration binds the parties. And unlike the formal legal process, arbitration rulings can often not be appealed. Arbitration proceedings are also private, meaning the result is kept out of the public eye.

Does Title VII Protect Transgender Texas Employees from Discrimination?

October 2, 2018 | Law Office of Rob Wiley, P.C.

Title VII to the Civil Rights Act of 1964 made many types of workplace discrimination illegal. For example, Title VII protects against race, sex, and national origin discrimination, among others. In the years since the passage of the Civil Rights Act, however, employers continued to discriminate against certain classes of employees, requiring Congress to act to protect these groups.

Thus, Congress eventually passed the Pregnancy Discrimination Act and the Age Discrimination in Employment Act. Still, however, certain groups continue to be discriminated against in the employment setting. Transgender employees are among those who have failed to obtain equal treatment under the law. However, recently, a federal circuit court of appeals issued a written opinion in an employment law case, holding that discrimination based on an employee’s transgender status constitutes sex discrimination under Title VII. This is a very important step toward transgender employees having the full spectrum of protection enjoyed by their colleagues.

The Facts of the Case

The case was brought by the Equal Employment Opportunity Commission (EEOC) on behalf of a funeral home employee who told her employer that she planned to transition from a male to a female and would start to wear women’s clothing to work. The funeral home terminated the employee based on a gender-specific dress code policy.

Can an Employer Search an Employee’s Cell Phone?

September 24, 2018 | Law Office of Rob Wiley, P.C.

In today’s society, almost everyone has a cell phone. And while the primary purpose of cell phones used to be to make and receive phone calls, cell phones are now used not just for communication, but also as a form of entertainment and for web browsing. Cell phones are also used to keep schedules and conduct important business. In short, cell phones contain a significant amount of personal information, including passwords, contacts, and private communications. Given the enormous role cell phones have in our lives, it is clear why many are concerned about an employer’s ability to search an employee’s cellphone. It will come as a relief to many that, as a general rule, a Texas employer cannot conduct a search of an employee or their belongings against their will. This includes an employee’s personal cell phone. That being said, if an employee is using a company cell phone, the employer will likely be determined to have a possessory interest in the phone, and as a result the employee will have a greatly diminished expectation of privacy in the contents of the phone.

Of course, an employee is entitled to greater privacy rights when it comes to their personal cell phone. However, that does not prevent an employer from asking an employee if they will consent to a search. If an employee feels pressured by the fact that their supervisor asked to search their phone and the employee agrees, the search will likely be considered a legal one. However, an employer cannot use excessive force or make threats to obtain an employee’s permission to search their cell phone.

A coerced search is uncommon, however, because those employers who foresee the need to search an employee’s cell phone are likely to be proactive in obtaining employees’ consent. Indeed, the Texas Workforce Commission recommends that employers should have a written cell phone policy stating that “the employer reserves the right to physically and digitally search any devices with storage or memory capabilities that they might bring to work.” Absent such a policy, an employer’s search of an employee’s cell phone may constitute an invasion of the employee’s privacy.

Employee Protections When Discussing Texas Workplace Grievances

September 13, 2018 | Law Office of Rob Wiley, P.C.

Too often employees endure unfair or untenable workplace environments without speaking up. Often, employees are apprehensive about discussing poor working conditions with coworkers for fear of being retaliated against by their employer. Thus, it is essential that Texas employees are aware of the federal labor standards prohibiting this type of illegal practice that apply to both union and non-union workers. If you have a question about workers’ rights at your job, reach out to a Texas employment lawyer for answers.

Frequently Seen Unfair Labor Practices

Employees are vulnerable to unfair and illegal labor practices if they are unaware of the laws that protect them. Some common instances of unfair labor practices include situations where an employer threatens employees with some sort of adverse action if they engage in a discussion of workplace grievances. Some employers will even spy on employees or conduct investigations in an effort to uncover an employee engaging in the above behaviors. Commonly, this includes looking into an employee’s social media accounts.

The National Labor Relations Act (NLRA) protects an employee’s right to discuss their working conditions with other employees. While employers should be aware that employees are often allowed to say negative things about their employer without risk, many of them continue to take adverse actions against their employees in these instances.

Employees May Be Protected While Taking Leave for Substance Abuse Treatment

September 7, 2018 | Law Office of Rob Wiley, P.C.

As substance abuse continues to affect a record number of people, employees should be encouraged to pursue rehabilitation programs. However, many are reluctant to seek the treatment they need for a multitude of reasons, including the societal stigma associated with addiction, as well as the financial toll it can take on the individual and their family. If you are considering taking leave from work for a health-related reason, you may want to speak to an employment attorney so you know all of your options.

In addition, individuals are often afraid that seeking treatment may mean attending an inpatient facility, which means they cannot work. Employees may fear that taking leave from their employment to pursue and complete drug treatment may result in them facing adverse employment action or discrimination, ultimately resulting in termination or demotion. However, it is important that both employees and employers know that the Family and Medical Leave Act (FMLA) protects those seeking substance abuse treatment from a health-care provider.

The Family Medical Leave Act (FMLA)

The FMLA is a federal law that was passed in 1993 which allows individuals to care for themselves and certain family members for a discrete period of time if they are suffering certain medical conditions. The law was enacted to provide individuals with job security and healthcare during these difficult periods.

Mediation in Texas Employment Discrimination Lawsuits

August 30, 2018 | Law Office of Rob Wiley, P.C.

Mediation is a pretrial strategy that is designed to settle disputes before parties embark on a lengthy and often costly trial. Mediation is employed in many different contexts and is often one of the first methods of resolution in Texas employment discrimination cases. In fact, the Equal Employment Opportunity Commission (EEOC) has implemented mediation programs as one of the first steps to resolving employment discrimination lawsuits.

The mediation process allows the two parties to attempt to resolve their issues and points of contention with the assistance of a trained and neutral third-party. Mediation is an appropriate step in many types of cases that do not involve complex evidentiary or procedural issues. Mediators are trained in the art of negotiation, effective listening, and conflict resolution. In certain instances, the mediator is a trained attorney; however, they are prohibited from providing legal advice while in their mediator role.

The Three Main Types of Mediation

Generally, there are three schools of thought in regards to mediation: facilitative, evaluative, and transformative. In short, during facilitative mediation the mediator does not provide any type of opinion and only facilitates a discussion between the parties. During evaluative mediation, the mediator will provide information regarding the likelihood of success and some potential, reasonable terms of resolution. Finally, during transformative mediation, the main objective is to change the parties’ relationship with one another and allow them to successfully resolve the dispute.

Pregnancy Discrimination Is Sex Discrimination

August 20, 2018 | Law Office of Rob Wiley, P.C.

The Civil Rights Act of 1964 (Civil Rights Act) was monumental in that it provided crucial rights to many people who had been denied equal treatment for many years. While the Act prohibited discrimination based on certain bases, other bases were left uncovered. One area of Texas employment discrimination the Civil Rights Act did not solve was pregnancy discrimination. Following the Civil Rights Act, employers continued to discriminate against women on the basis of their pregnancy. When it came time to explain their seemingly discriminatory behavior, employers routinely claimed they were basing their actions not on the sex of the employee (which was prohibited under the Act) but instead on the fact that the employee was pregnant. This was an unfortunate but accepted distinction for 14 years.

In 1978, however, things changed for the better with the passage of the Pregnancy Discrimination Act (PDA) of 1978. Technically, the PDA was an amendment to the Civil Rights Act of 1964. The text of the PDA was short, and the message was straightforward. Essentially, discrimination on the basis of “pregnancy, child birth, or related medical conditions” was considered sex discrimination. Thus, an employer could no longer discriminate on the basis of an employee’s pregnant status, since doing so would amount to sex discrimination.

Can Texas Employers Make Compensation Decisions Based on Race?

August 9, 2018 | Law Office of Rob Wiley, P.C.

Employment discrimination is widely recognized as an illegal practice. However, what exactly constitutes discrimination changes over time. Due in part to a long-awaited shift in societal values, as well as empirical data establishing that many immutable characteristics have nothing to do with someone’s ability to perform the functions of a job, the number of protected groups under state and federal employment discrimination statutes continues to grow.As the protected groups have grown over time, so too has the type of conduct that employers are prohibited from engaging in. No longer are Texas employment discrimination lawsuits limited to an employee being fired or demoted for an impermissible reason. Today’s anti-discrimination laws are much more robust, protecting employees from all kinds of workplace discrimination.

According to the Equal Employment Opportunity Commission (EEOC), employers are not permitted to discriminate in any of the following areas: