Dallas Employment Lawyer Blog

Texas employment decisions cannot be made because of sex

November 1, 2017 | Law Office of Rob Wiley, P.C.

As long as it has 15 or more employees, your employer cannot take adverse employment actions against you based on your sex under the Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act. Taking an adverse action against an employee based on his or her sex or perceived sex is sex discrimination. For example, if you were not promoted, denied a job, fired, or not trained due to your sex, these are all examples of gender discrimination. Sex discrimination can occur in any industry, although lately many news headlines focus on discrimination in the science and tech industries.

Federal law does not explicitly provide protection based on gender identity, expression, or orientation, but the Equal Employment Opportunity Commission (EEOC) has provided guidance indicating that same sex and gender identity discrimination are implicitly included in the prohibition against sex or gender discrimination in Title VII. Although about 429,000 workers identifying as LGBT live in Texas, there is no statewide law that prohibits discrimination based on sexual orientation or gender identity in workplaces. Certain cities have enacted ordinances to prohibit these types of discrimination and harassment.

There are two categories of sex discrimination — direct discrimination and disparate impact. Direct discrimination involves an employer who affirmatively acts in an adverse way against an employee due to sex. For example, if your boss refuses to promote you because he thinks women are not good leaders, this may be actionable as sex discrimination. Disparate impact is a more subtle form of sex discrimination. It exists when an employer creates a policy or practice that is facially neutral, but the policy or practice has a greater negative impact on employees of one sex more than another.

In Texas, it is absolutely illegal to make employment decisions based on race

October 1, 2017 | Law Office of Rob Wiley, P.C.

Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 prohibit race discrimination in most Texas workplaces. Race discrimination occurs any time that an employer makes an adverse employment decision based on race, and it is absolutely illegal.

Assuming it has a minimum of 15 employees, your private employer cannot make adverse employment decisions when hiring, firing, promoting, paying, training, or providing other terms and conditions of employment. Employers cannot make these decisions based on their biases about the qualities or performance of people who belong to specific races. They also can’t make those decisions based on a job applicant or employee’s association or marriage to someone of a certain race, membership in ethnic or race-based organizations, or attendance in schools that are identified with certain races.

For example, if your manager decides not to promote you to a supervisory position because she has stereotypes about people of your race not being good leaders, this would be race discrimination. Similarly, if you are not hired for a job because a company’s leadership believes that people of your race aren’t creative enough to do a job, that is race discrimination.

You can’t be treated differently because of your accent in Texas

September 19, 2017 | Law Office of Rob Wiley, P.C.

Both Texas Labor Code Chapter 21 and Title VII of the Civil Rights Act of 1964 guard against workplace discrimination that occurs on the basis of an employee’s national origin. National origin is a characteristic that refers to one’s birthplace, ancestry, culture, or linguistic characteristics. Often, national origin discrimination overlaps with race, religion, or color, which are also protected characteristics. For example, discrimination against those from Middle Eastern countries can be motivated by both national origin and the assumption that they subscribe to particular religious practices. Accordingly, a complaint we file on your behalf may assert multiple causes of action or grounds of discrimination.

Often, one’s national origin is revealed through accent. For example, if you grew up in Iran and immigrated to the United States as a young adult, you may still have traces of an Iranian accent. Similarly, if you grew up in Mexico and lived mostly among Mexican immigrants after immigrating, you may speak English with an accent.

You cannot be treated differently in a workplace due to your accent or due to a spouse’s or an associate’s accent. National origin discrimination occurs if an employer makes an adverse employment decision based on your accent. For example, an employer is not supposed to refuse to allow you to work in a customer-facing position due to your accent because he wants to create a more wholesome American image for his restaurant. Similarly, an employer is not supposed to turn down a job applicant for a teaching job because he has an Indian accent.

You have the right to a reasonable accommodation in Texas

September 1, 2017 | Law Office of Rob Wiley, P.C.

Under the Americans with Disabilities Act (ADA) as well as Texas law, your employer is required to provide you with a reasonable accommodation for your disability, as long as you are qualified to do the job. Reasonable accommodations can include any changes to the workplace or tasks that would allow you to do the job.

For example, you might need altered work hours periodically to see a doctor for disabling diabetes. Similarly, you might need a ramp if you need to use a wheelchair. You might need special software if you have an impairment that involves difficulties using your hands, such as amputation or disabling carpal tunnel syndrome.

Sometimes the reasonable accommodation includes time off from work. This may be provided under the ADA or Texas law, but it may also be provided under the federal Family and Medical Leave Act, if your employer is large enough to be covered by this law. Only employers with 50 or more employees are covered. The FMLA requires covered employers to give eligible employees the right to take up to 12 weeks of unpaid leave for a serious health condition. For example, if you have cancer and need time off to go to chemotherapy appointments, your employer may need to accommodate you under the ADA or Texas law. If the chemotherapy doesn’t work, you may be entitled to ADA leave, but you may also be entitled to FMLA leave.

What high school debaters could teach lawyers about arguing cases

August 17, 2017 | Adam S. Greenfield

A great deal of work goes into high school debates. While they tend to be an extracurricular activity that attracts highly motivated and structured individuals with a particular type of personality, these debates also requires an intense amount of preparation, regardless of who is doing the debating. High school debaters need to develop certain skills, such as the ability to read the judge, the ability to turn the opponent’s evidence or arguments to their favor, and the ability to do a substantial amount of research.

These same skills need to be developed by trial lawyers. Many people assume that trial lawyers are successful in court because they possess charisma or chutzpah, or because there is something special about them.

Why being board certified in labor and employment law matters

August 15, 2017 | Adam S. Greenfield

The Texas Board of Legal Specialization was established by the Texas State Bar in 1974 with the goal of promoting the quality and availability of attorneys’ services in certain areas of the law. The idea behind establishing this Board was that by allowing attorneys to become specialized, the standards of the legal profession would be higher, and clients would be better served. The Board certifies lawyers in 23 specific areas of law, including Labor and Employment, as well as certifying paralegals in seven legal areas. The Board is the only organization permitted to certify attorneys in specialized areas.

The process of achieving Board Certification is extremely rigorous. Attorneys who wish to become certified need to practice for at least five years with three years of substantial involvement in a particular area of law, finish Continuing Legal Education requirements related to the specialization from a provider that’s approved, provide at least five qualified vetted references, give documentation on relevant experience, and pass an exam that lasts for a day and is comprehensive.

These requirements are all on top of the requirements necessary to become a lawyer in the first place. Over 100,000 attorneys are licensed to practice in the state, but of these, only 7,350 are Board Certified. Within Texas, a Board Certification in Labor and Employment Law signifies that an attorney has significant experience in employment law matters and has also showed special competence within that area.

Working off the clock is illegal in Texas (and elsewhere)

August 11, 2017 | Adam S. Greenfield

Sometimes Texas workers believe that they must be as helpful as possible to an employer, even if it means working off the clock. For example, sometimes workers come in early to help an employer set up for that day’s work, but they don’t punch in for that period. Or, sometimes, an employee participates in work during lunch hours that isn’t counted toward their work hours for that week. Under the Fair Labor Standards Act (FLSA), work that is not counted toward overtime or goes uncompensated is illegal.

The FLSA requires that nonexempt employees be paid overtime if they work more than 40 hours per week for all work done. Most employees are considered nonexempt and are covered by the FLSA for the purposes of overtime, as well as the minimum wage. Exempt employees are those who are considered professional, administrative, or executive, or are within certain industries such as commission-based sales.

All work for an employer should be on the clock. If an employer requires or allows employees to do any work for it without compensating the employee and counting it toward weekly hours for the purposes of calculating overtime, it is “off the clock.” What counts as work? Whenever an employee engages in work that’s not requested but allowed, such as helping a colleague or coming in early to set up, this is work that is completed and should still be compensated.

Don’t go off the clock for short lunch breaks

August 4, 2017 | Adam S. Greenfield

Many workers do not realize that they do not need to go off the clock for short lunch breaks or snacks. If you take yourself off the clock for breaks under 30 minutes, you may not be getting the wages to which you’re entitled.

There are many employment practices not regulated by the federal Fair Labor Standards Act (FLSA). For example, there’s no requirement under the FLSA that you get vacation pay, meal periods, holidays off, premium compensation for working weekends or holidays, pay raises, a reason to be discharged, or pay stubs. There are no collection procedures in place if you are promised wages or due commissions that are greater than what’s required. Moreover, there are no limitations about how many hours in a single day you can be scheduled to work if you are at least 16 years old. Generally, these issues are agreed upon between an employer and an employee.

However, rest periods or short lunch breaks are quite common in all workplaces. There is no requirement that a lunch or coffee break be given under federal law. However, if your employer chooses to offer you a short break, these breaks are considered compensable hours that are included when determining overtime and minimum wage, and they are regulated under the FLSA. Any rest period of short duration (such as one that is 20 minutes or less) is supposed to be paid as working time and included when calculating overtime.

Why no Texas employer should be asking about criminal history

August 1, 2017 | Adam S. Greenfield

Your past should not dictate your future in America. Those who are able to work should be able to work and build their futures. Partially due to a failed war on drugs, which disproportionately affected African Americans and Latinos, one in four Americans who are of working age have a criminal record.

This is problematic because arrests and convictions can make it much harder to get a job. About 92% of employers conduct criminal background checks when they hire, and numerous people are disqualified from jobs based on this type of search, even though they’ve already been acquitted or served their time. There are some limited protections for those with criminal records, but they are insufficient. No employer should ask about criminal history.

The Equal Employment Opportunity Commission (EEOC) has determined that employers that take up a blanket policy of excluding all job applicants who have a criminal record may be using a practice that has a disparate impact on African Americans and Latinos. Title VII prohibits employers from treating people who have similar criminal records differently due to race, national origin, or another characteristic protected under Title VII.

Should you be paid for your summer internship?

July 28, 2017 | Adam S. Greenfield

The Fair Labor Standards Act (FLSA) is the federal law that regulates minimum wage and overtime, including how these issues should be handled in connection with a summer internship. Employment is defined broadly such that anyone who is suffered or permitted to work is employed. The United States Department of Labor enforces the FLSA, and it uses a six-part test to decide whether you should be paid minimum wage for your summer internship.

An unpaid internship is only appropriate under the six-part test when: (1) the intern doesn’t displace a paid employee, (2) the internship is for the intern’s benefit, (3) the internship is similar to training that would be provided in school, (4) the employer doesn’t benefit from the intern’s work and sometimes may be disrupted by what the intern is doing, (5) the intern isn’t promised a job once the internship is over, and (6) both the intern and the employer understand that the job is an unpaid position.

If you are closely supervised by existing staff and are not “seasonal help,” you probably didn’t displace a paid employee. However, if your employer would have hired more people to do the work you’re doing if you hadn’t joined as an intern, you are likely entitled to FLSA pay.