Dallas Employment Lawyer Blog

It’s My Spouse, I’m Leaving

April 8, 2022 | Deontae Wherry

In 1993, Congress passed the Family Medical Leave Act (“FMLA”) which provides employees the right take medical leave for (1) the birth of a child or to bond with a child, (2) the placement of a child for adoption or foster care, (3) a serious health condition that prevents the employee from his or her job, and (4) the care of the employee’s spouse, son, daughter, or parent who has a serious health condition. In this article, I will focus on the definition of “spouse”, the expanded definition, and highlight FMLA’s key provisions.

“Spouse” was initially based upon the traditional definition of marriage being between a husband and a wife. Put simply, a spouse was only a person who was married to a person of the opposite sex. As society continued to change, this impacted many employees’ ability to care for their significant other or spouse. For example, employers were not required to return the employee to his/her position and could retaliate against them if the employee requested medical leave to care for a person of the same sex with a serious health condition because this was not a FMLA qualifying reason.

After the Supreme Court’s decision in United States v. Windsor, the Department of Labor (“DOL”) expanded the definition of spouse to include same sex marriage. While this appeared as a victory for same-sex marriages, it had its own limitations because it only recognized same-sex marriages for employees that lived in states that recognized same sex marriages. This affected employees in states like Texas where same-sex marriages were not recognized.

Ramadan 2022 is Here: Do I Qualify for a Religious Accommodation?

March 31, 2022 | Rob Wiley, P.C.

The Muslim holy month of Ramadan is observed by 1.6 billion people around the world. Practicing Muslims will be fasting from dawn until dusk (approximately 6 a.m. to 8 p.m.) beginning on April 2, 2022 and ending on May 2, 2022. Fasting means no food or liquid of any kind. Yes, that includes water! Ramadan is meant to be a time of spiritual discipline – of deep contemplation of one’s relationship with God, extra prayer, increased charity and generosity, and intense study of the Quran. It is a joyous month meant to be shared and celebrated with loved ones.

Fasting during Ramadan is one of the five pillars – or duties – of Islam, along with the testimony of faith, prayer, charitable giving, and making a pilgrimage to Mecca. The practice of fasting is intended to be a reminder of human frailty and dependence on God for sustenance. It reduces the distractions of life to allow time to focus on our relationship with God. Importantly, it provides an example of the hunger and thirst the poor experience, which is intended to encourage empathy for and charity to the less fortunate.

During Ramadan, it is not unusual for Muslims to be up past midnight for prayer and then get up around 5 a.m. to eat the first meal of the day, which must last until sunset. This means lots of high-protein food and drinking as much water as possible until dawn, after which we cannot eat or drink anything. At dawn, Muslims will perform their first prayer of the day, followed by four additional mandatory prayers throughout the day and an optional late-night prayer, which is typically only preformed during Ramadan. Many Muslims, myself included, are typically more devoted to their prayers during this month and try to set time aside throughout their day to timely complete each of the five scheduled daily prayers. For me, that means blocking time on my work calendar to ensure I am not scheduled for meetings or appointments during the various prayer times that fall within work hours.

Why Judicial Elections Matter in 2022

March 10, 2022 | Austin Campbell

Summary: This article gives a rundown of judicial elections in Texas: what they are, what positions are up for a vote, and why you should care about them.

Although many states elect at least some of their judges, as of 2020 Texas is one of only six states to run partisan (party-based) elections for all state judicial positions. If you were one of the 17 percent of Texans who voted in the March primary for the 2022 midterm elections, like me you probably encountered several pages of candidates for all sorts of judicial positions in your county and across the state. All kinds of judges, justices—and something called a “justice of the peace”? Some of the candidates were unopposed in their primaries and might even run unopposed in the general election, while other races had 3 or 4 candidates competing. Perhaps the information overload of all these judicial elections is one reason for Texas’s incredibly low primary turnout.

This article is meant to give a basic overview of some of these judicial positions, and to discuss why you should care about them.

Biden Signs into Law a Bill Ending Forced Arbitration of Sexual Assault and Harassment Claims – Key Takeaways

March 4, 2022 | Rob Wiley, P.C.

On March 3, 2022, President Joe Biden signed into law new legislation banning the use of arbitration clauses in employment contracts that force victims of sexual assault and harassment to pursue their claims in private arbitration rather than in open court. The legislation passed Congress with bipartisan support and has been described as one of the most significant workplace reforms in history. It is estimated that about 60 million Americans are subject to arbitration clauses.

The law allows victims of sexual assault and harassment to have their day in court and to speak publicly about their cases. Until now, victims who had signed an arbitration agreement with their employers were forced to bring their claims in a private and largely employer-friendly arbitration process, where cases are typically decided by a single arbitrator instead of a jury.

What is the new law called?

An Example of Protections We Do Not Have: The Fight for LGBTQIA+ Rights is Ongoing

March 3, 2022 | Paige Melendez

On February 22, 2022, Governor Abbott penned a letter to the Texas Department of Family Protective Services (“DFPS”) in which he imposed a mandate on the State agency to investigate the parents of children who are undergoing any type of gender transitioning treatment. To call the tone and aim of this letter transphobic would be an understatement.

More importantly, the fact that Governor Abbott felt emboldened enough to send a transphobic order to the DFPS should act as a call to action. The February 22, 2022 letter is a prime example of how far we have come and yet how far we still have to go in the fight for equal rights. It is an example of all the protections we do not have because, in spite of Bostock County being decided by the Supreme Court, our state entities are not bound to follow those guidelines. Governor Abbott had the audacity to direct a state agency and licensed professionals to directly harm LGBTQIA+ children by deeming gender reassignment surgeries and treatment as child abuse. This is a clear sign that the Governor’s office is either indifferent or blind to the trials and tribulations that besiege an already marginalized minority.

In their 2019 National Survey on LGBTQ Youth Mental Health, The Trevor Project found that nearly 1 in 3 transgender and non-binary youth have attempted suicide. Governor Abbott’s directive allows transphobia to become a state policy in the eyes of all the citizens in Texas. This is not by accident; it is a conscious decision to place politics above children’s lives. The worst part is that we have civil rights laws that protect adult employees from discrimination based on gender identity and sexual orientation, but the civil rights protections do not extend more broadly. While this letter represents a transphobic attitude from the highest seat in the state government, all hope is not lost. The gubernatorial system that is set up in Texas disallows Governor Abbott from directly enforcing the directive through his office. Instead, he is reliant on district attorneys and state agencies to do so. Thus, we are able to put pressure on these individuals to protect trans children and other members of the LGBTQIA+ community.

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.

Cunning companies may try to circumvent Texas’s “conflict of law” rules for non-competes: what that means and what to watch out for

January 27, 2022 | Austin Campbell

Summary: This article discusses Texas conflict-of-law rules as they apply to non-compete agreements, and some ways that employers may try to get around those rules.

Various articles we have published address in general what a non-competition agreement is and what is required for one to be enforceable in Texas. But with Texas increasingly becoming a hub for large or even multinational companies, it can be much more confusing for workers to figure out what a non-compete their company insists they sign even means. That is especially true as companies may demand that employment documents be governed by some other state’s laws, or even another country’s.

This arcane choice can have profound consequences. Other states’ non-compete laws may be more protective of employees, or instead may allow an employer to get away with more restrictive limits on you. If you are dealing with a contract governed by some other state’s law, it may be a good idea to consult an attorney licensed in that state. However, even if you are in Texas, you should also ask yourself whether your employment agreement subjects you to another state’s non-compete laws, and what that might mean. This article is meant to give a basic overview of Texas’s so-called “conflict of law” rules when it comes to non-competes, as well as some closely related non-compete pitfalls.

4 Things YOU as a Member of the Texas Military Need to Know

January 20, 2022 | Paige Melendez

The United States, on a nationwide scale, protects military service members in several ways through the Uniformed Services Employment and Reemployment Act or USERRA. One of the ways is to require employers to reemploy service members after their service obligations are completed subject to a couple of extra requirements. But what about the lone star state? The good news is that Texas has laws to protect Texas military forces that track the protections extended to national military forces under USERRA. Chapter 437 of the Texas Government Code is the primary location for these employment protections.

Like most bodies of law, Chapter 437 has multiple provisions that apply to service members, but this article is intended to briefly hit upon 1) who is covered, 2) what that coverage means, 3) how do you become eligible for those protections, and 4) what do you do if your employer isn’t as familiar with the law as you surely will be after you finish reading.

1. Which service members are covered?

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.