Dallas Employment Lawyer Blog

Can an Employer Fire Someone Based on Their Social Media Posts?

August 3, 2018 | Law Office of Rob Wiley, P.C.

Most people on social media assume that their posts, while not necessarily private, are beyond the access of their employers. Indeed, part of what makes social media so valuable is that users are able to express themselves and their beliefs freely and without fear. However, many employees over the last few years have learned the hard way that employers can often find ways to access their posts. But when a Texas employer finds something they don’t like on an employee’s social media account, can the employer actually take action based on the employee’s social media posts?The answer, as is often the case with legal questions of this nature, is “it depends.” As a general matter, Texas is an at-will employment state, meaning that a Texas employer can terminate an employee for any reason at all, so long as it is not an illegal reason. Thus, if an employer does not like something that an employee posted on social media, the employer may be able to fire that employee over it.

Texas employers cannot discriminate, however. And if the post in question was expressing participation in or support of a protected group, the line of what the employer is permitted to do becomes blurry. That is because engaging in discriminatory employment practices regarding protected classes is illegal. In Texas, the classes that are protected by both state and federal anti-discrimination statutes are:

Do Texas Employers Have to Accommodate an Employee’s Religious Beliefs?

July 26, 2018 | Law Office of Rob Wiley, P.C.

Under Title VII to the Civil Rights Act of 1964, employers are prohibited from discriminating against their employees based on a number of criteria, including religion. Of course, under Title VII, employers are prohibited from making hiring or firing decisions based on a person’s religion, but the protection granted to employees under Title VII goes beyond that. The Equal Employment Opportunity Commission (EEOC) is the federal agency given broad authority to oversee the enforcement of Title VII.Employers must also allow for certain accommodations to be made for an employee’s religious beliefs. According to the EEOC, the following are examples of accommodations that employers have been required to make based on an employee’s religion:

Allowing an exception to be made for an employee dress code;
Permitting an employee to take time off for a religious holiday;
Excusing an employee from a staff prayer or other religious invocation;
Granting an employee permission to pray at certain times of the day;
Keeping an employee off the schedule during their day of Sabbath or worship.

Protecting Texas Employees’ Rights Through Increasing Minimum Wage and Securing Unpaid Wages

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

The federal minimum wage for hourly employees is $7.25 per hour. Unlike other states that allow for a higher minimum wage, the Texas minimum wage is $7.25. Advocates of a higher minimum wage have cited the unrealistic expectation that people are able to live on $7.25 per hour. Furthermore, they have argued that a higher minimum wage will foster the economic growth of the United States and close the gap between low- and middle-income families.On the other side, those in favor of keeping the minimum wage lower argue that employers cannot keep up with the higher wages and will have to lay off more employees, increasing the unemployment rate. However, despite the opposition to increasing the minimum wage, the fact remains that individuals in these positions often face many obstacles surviving on so little income. In some cases, employers will try to get around complying with the minimum wage requirement, which leads employees to face even more issues.

There are very few instances when an employer does not need to comply with federal minimum-wage standards. Some exceptions are if the employee is a farm worker, student learner, independent contractor, or tipped employee. If an employee is not sure if they fall into one of these categories, or they believe their employer is not complying with federal statutes, they should contact a Dallas wage and hour attorney.

Federal Court Holds Texas Employees Can Add Certain Pins and Badges to Their Uniform Without Management Interference

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

Many Texas employers require employees to wear uniforms. Generally, this is an accepted practice. However, as a recent federal appellate decision illustrates, employers may not be able to prevent an employee from wearing a pin or badge that relates to an employee’s ability to collectively bargain.

The Facts of the Case

This case involved an employee at a popular burger chain In-N-Out Burger. The restaurant had a strict uniform policy and prohibited employees from wearing any “stickers or pins” on their uniform. The employee was an hourly worker and wore a pin on his uniform stating “Fight for $15.” The employee wore the pin in support of a national campaign to increase the federal minimum wage to 15 dollars an hour.

The employee’s manager instructed the employee to remove the pin. The employee complied, but told the manager that he would be pursuing an unfair labor practice claim against the employer.

Texas Sexual Harassment/Hostile Work Environment Claims May Be Based on the Harassment of a Customer or Patient

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

No Texas employee should have to deal with being harassed, whether it’s from coworkers, management, or even customers. Federal law provides employees who have been the victim of workplace sexual harassment several alternatives. Commonly, when an employee is harassed, the harassing individuals are also employees of the company. However, that no longer needs to be the case in certain circumstances.

In a recent federal court appellate opinion, the court discussed a situation in which a nurse’s sexual harassment and hostile work environment claim against her employer can proceed to trial for the conduct of a patient.

The Facts of the Case

According to the court’s opinion, the case was brought by an experienced Certified Nursing Assistant who worked at the defendant nursing facility. The nurse was assigned to care for an elderly man who suffered from numerous mental health issues, including dementia. Over the course of several years, the patient regularly tried to grope the nurse, requested that she perform sexual acts on him, and routinely made sexually inappropriate comments. Further, the nursing facility was aware of the patient’s propensity to be sexually aggressive. After one incident, a supervisor told the nurse to “put her big girl panties on and go back to work.”

ADA Guidelines Regarding Disclosing Disabilities During Interviews

June 29, 2018 | Law Office of Rob Wiley, P.C.

Disclosing a disability can be daunting because, in many instances, this requires individuals to discuss highly personal information with professional associates. There are many factors to consider when deciding how to disclose a disability. Prospective employees often feel pressured to disclose a disability, especially when they may require an accommodation. However, the Americans with Disabilities Act (ADA) clearly outlines when a disclosure must be made and what an employer is required to do to accommodate that disability.

When do Texas Employers Need to Be Notified of Disability?

Requiring a prospective employee to disclose their disability prior to a job offer is an unreasonable requirement. As such, the ADA has provided guidance to both employees and employers on what is permissible to inquire about and what is required to be disclosed.

In general, the ADA bars an employer from asking questions, during the pre-offer period, that may require a prospective employee to reveal a disability. This includes prohibiting an employer from asking questions during an interview, eliciting answers through written questionnaires, or from reviewing records from a medical exam.

Texas Workforce Commission Severance Pay Laws

June 22, 2018 | Law Office of Rob Wiley, P.C.

In Texas, final compensation policies and practices are regulated by the state’s Payday Law. Among other things, the law instructs employers and employees on their rights after an employee leaves employment. In cases in which an employee is fired, discharged, laid off, or involved in any other involuntary separation, they are due their pay within six calendar days. In instances in which the employee leaves voluntarily, such as by quitting or retiring, they are due their final pay on the next regularly scheduled payday.

Texas Severance Pay

Under the Texas Payday Law, Texas employers are not required to provide their employees with severance pay, although many employers do provide this or may be required to provide this for a multitude of reasons, such as provisions in Texas employment contracts.

Severance pay is a type of compensation that some companies offer when employees are terminated due to no fault of their own. This is usually applicable in situations in which an employee has worked at a particular job for some length of time or in a certain position and has been let go. Generally, employers use a set formula to determine when an employer will be due severance pay. The theory behind severance pay is to compensate the employee for the lack of advance notice of their termination. Although the Fair Labor Standards Act (FLSA) does not mandate severance pay, many Texas employers offer this type of compensation.

When Can Texas Employees Utilize Intermittent Leave Under the FMLA?

June 15, 2018 | Law Office of Rob Wiley, P.C.

In 1993, Congress adopted the Family and Medical Leave Act (FMLA). This federal law was enacted to provide certain employees with 12 workweeks of unpaid leave each year without the risk of being terminated. Public agencies, such as local, state, and federal employers, and local school employers must comply with the Act. Additionally, private employers who have 50 or more employees for at least 20 workweeks per year must also comply with the Act. This federal law is applicable in Texas FMLA claims based on discriminatory conduct.Generally, the FMLA can be used by eligible employees in the following situations:

When an employee cannot work because of a serious medical issue,
To care for an immediate family member who has a serious medical issue,

The Importance of the Merit Systems Protection Board for Federal Employees in Texas

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

In 1979, the United States Civil Service Commission established the Merit Systems Protection Board (MSPB), which is an agency designed to prevent federal employers from engaging in prohibited personnel practices. Under the MSPB, federal employees are entitled to a hearing after they are terminated, suspended, or demoted because of their performance or conduct.The MSPB process is crucial for employees who believe that their conduct did not warrant the adverse employment action taken against them. The Civil Service Reform Act mandates that federal employees are given their due process when terminated. This is to prevent powerful federal employers from engaging in arbitrary employment actions. Of course, when a federal employer takes an adverse action against an employee, there are lasting impacts on that person’s personal and professional life.

The MSPB is a complex entity, and there are many roadblocks that an employee may encounter, due to the nature of the employing agency and the processes involved. First, employees should consult with an attorney to determine whether their adverse employment action will trigger an MSPB appeal. Although it seems clear in some situations, MSPB protections are not extended to all types of federal positions. However, some common situations when an appeal is triggered are when there is an adverse action or a forced retirement. Furthermore, even though the MSPB will attempt to handle a claim within six months, the Board may also pressure the parties to settle in order to more quickly resolve the matter. A Texas employment lawyer can guide employees in effectively working through these steps.

#MeToo Movement Emboldens Victims of Sexual Harassment in the Workplace

May 31, 2018 | Law Office of Rob Wiley, P.C.

At the end of 2017, an international movement fighting against assault and sexual harassment began to take hold on social media. The hashtag #MeToo was utilized to illustrate the pervasive presence of harassment and sexual assault – specifically in the workplace. The catalyst for the movement came shortly after allegations were made against Harvey Weinstein, a well-known film producer. While the problem of sexual harassment and assault was only recently thrust into the public light, lawmakers have been taking steps to combat the reprehensible behavior for decades.In 1980, the Equal Employment Opportunity Commission (EEOC) began to study the prevalence of sexual harassment in the workplace. Despite significant pressure from women’s advocates and widespread training for employers and employees, workplace sexual harassment is still a pressing issue. According to the EEOC, the Commission receives over 11,000 complaints each year. However, given the realistic threat of retaliation that people face when confronting or accusing perpetrators of abuse and harassment, the number of cases is underestimated.

According to the EEOC, it is illegal to harass any employee or applicant because of their sex. Common forms of Texas sexual harassment include behaviors such as unwanted sexual advances, invitations and requests for sexual favors, and other similar verbal or physical behaviors that are based on a person’s sex. Unfortunately, issues arise when the behavior is considered “teasing” or an off-hand comment, or if it occurs on an isolated occasion.