Compensation for Unpaid Hours in Wage Disputes: Employee vs. Independent Contractor

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In July 2023, the Court of Appeals for the Fifth Circuit held that three window blind installers deserved the opportunity to go to trial on the issue of whether their employer owed them unpaid overtime. Earlier, a lower court, the Southern District of Texas, determined that the installers could not provide adequate proof that they had worked the hours claimed. It therefore granted summary judgment to the employer without ever reaching the issue of whether the workers were employees. The installers appealed.

The Fifth Circuit dusted off a 1946 U.S. Supreme Court precedent to hold that the installers had presented enough evidence of hours worked to merit a trial, known as Anderson v. Mt. Clemens Pottery Co. That case is still law, but it is curious that the Fifth Circuit dove back into old employment law jurisprudence. Generally, a worker who brings a claim for unpaid overtime bears the burden of proving that he or she was not properly paid for hours worked. This is easy when an employer keeps accurate records of the employee’s hours. But Mt. Clemens Pottery recognizes that employers may have an incentive not to keep full and accurate records of hours worked, especially since those records can be used to prove overtime liability.

Employee Rights and Unpaid Overtime Wage Claim

The case involves two intertwined questions of employment rights:

  • first, whether the installers could show that they had worked hours that should have been paid as overtime; and
  • second, whether they were employees who were entitled to the wage and hour protections of the Fair Labor Standards Act (FLSA) or whether they were independent contractors with only contract rights.

If they could not provide proof of hours worked, then there was no reason to tackle the question of whether they were employees. Similarly, if they were self-employed contractors, there was no reason to get to the question of overtime compensation. In other words, if the answer to either one of these questions is no, their claims would fail.

Work Hours Documentation – Long Hours, Flexible Schedules

Jose Flores, Jean Romero-Rodriguez, and Brandon Villarreal installed blinds for FS Blinds. They measured windows, delivered and installed the window treatments, and repaired damaged blinds — mostly in new construction. Each managed his own schedule throughout the day. So long as the day’s job list did not specify otherwise, each worker could complete the jobs in any order. If they failed to complete all the jobs on the day’s list, they could roll jobs over to the next day.

Each installer worked a different schedule. Job scheduling differed from day to day, but all agreed that they worked around 70 hours a week. FS Blinds paid them by the job and kept no records of their hours. The installers’ evidence of underpayment included work orders and their own testimony as to starting and quitting times. Some of this was also corroborated by FS Blinds. The District Court was not persuaded. It found that the installers’ evidence was not enough to establish a prima facie case and granted FS Blinds’ motion for summary judgment.

Kilgore & Kilgore Protects the Legal Rights of Workers Including Wage Hour Compliance Issues

If you have questions about work hours documentation, hourly wage laws, worker classification, legal rights of workers, independent contractor status, or other employee rights issues, reach out to us. Contact us using this link Contact Kilgore Law or call us at 214.969.9099. Click on this link to find out about our Wage and Hour Dispute Resolution services.

FLSA Employee Overtime Rights, Wage Law Compliance, and Wage Claims

The federal Fair Labor Standards Act (FLSA) requires that covered employees must receive overtime compensation for hours worked over 40 per workweek, at a rate not less than one and one-half times the regular rate of pay. A lot is buried in this sentence, though. Among the thorny questions are how to prove hours worked and who is a contractor and who is an employee (known as worker classification).

Employment Law and Worker Protection

The absence of records creates a difficult dilemma for workers. In Mt. Clemens, the Court created a two-step solution to the problem:

Step One: When the employer’s records are inadequate or nonexistent, the employee’s burden of proof must necessarily be lighter. If the worker:

  • proves that he has in fact performed work for which he was improperly paid; and
  • produces sufficient evidence to show the amount and extent of that work;

then, as a matter of reasonable inference, a court may preliminarily conclude that the work was done.

Step Two: The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence.

A Subtle Shift in Labor Law Policy and Labor Rights Enforcement

It is interesting to note that the Fifth Circuit reached back almost 80 years to find controlling wage and hour law precedent. The case cited herein, Mt. Clemens Pottery, focuses on the fundamental policy of the FLSA, which is to remedy “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” These detriments, according to Congress, burdened commerce and were at the root of labor disputes.

Evolution of Worker Protection and Employee Rights

Old as it is, the two-step solution of Mt. Clemens Pottery still stands. But it strikes a different tone than more recent employer friendly Fifth Circuit decisions. Whether this suggests a subtle shift in Fifth Circuit focus remains to be seen. The Fifth Circuit explicitly did not rule on the second question of whether the installers were employees. It left that question for the District Court on remand. Nonetheless, it is important to explore because the two questions are so intricately linked in many overtime compensation lawsuits.

Worker Classification – Employee vs. Contractor

Only covered employees are entitled to the wage and hour law protections of the FLSA. Self-employed workers are protected only by the terms of their contracts. Nonetheless, the issue of whether a worker falls within one category or the other often extends far beyond the existence or non-existence of a valid contract. The decisions also tend to be highly fact specific. If the installers mentioned earlier can meet their burden of proof about hours worked, they will have the chance to present evidence on this employee vs. contractor issue.

New Definition of Independent Contractor

On January 9, 2024, the U.S. Department of Labor published a final rule that refines the definition of independent contractor under the FLSA. Following are the six issues that the DOL considers:

  • whether the worker has an opportunity for profit or loss;
  • the investments by the worker and potential employer;
  • the degree of permanence of the relationship;
  • the nature and degree of the potential employer’s control over the work;
  • the extent to which the work is integral to the potential employer’s business; and
  • the worker’s skill or initiative.

Reach out to Kilgore & Kilgore for Legal Assistance on Employee Rights

Our Texas employment lawyers have decades of experience with wage and hour law, overtime compensation, employee rights, wage disputes, and other employment rights claims. Use this link to get started Visit Kilgore & Kilgore.

Protecting Employee Rights in Whistleblower Cases and Corporate Ethics Violation

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On February 8, 2024, the Supreme Court ruled for protecting employee rights in whistleblower cases where lawfully protected actions are contributing factors to adverse employment actions. In the case of Murray v. UBS Securities, LLC, the Supreme Court held that a whistleblower who was fired after reporting he was pressured to slant his reports to UBS customers could seek whistleblower protection under the Sarbanes-Oxley Act, even if he could not show that UBS specifically intended to retaliate against him. The Murray case is a huge victory for whistleblowers who may now seek protection under the law, even if they can show only that their lawfully protected actions were a contributing factor to an adverse employment action.

Murray also affirms the rationale of the 2014 Fifth Circuit decision in a case known as Halliburton v. Administrative Review Board. Although it is tempting to understand Murray solely in the context of a securities law violation, it may have implications for the burden of proof faced by whistleblowers in a wide range of other federal and state whistleblower protection laws that affect industries as diverse as nuclear energy, railways, and aviation.

Corporate Fraud Reporting: Whistleblower Fired after Reporting Unethical and Illegal Pressure

Under SEC regulations, Trevor Murray, a research strategist at UBS, was required to certify that his reports to customers about the firm’s securities business were independent and reflected his own views. He alleges that two UBS trading desk employees pressured him to modify his reports to reflect more favorably on the employer. That is when the UBS unethical pressure started. After he told his supervisor about the attempted improper influence, UBS fired him. UBS insists that his termination was not retaliatory, but rather, that it laid him off as part of an economically driven reduction in force.

At trial, UBS argued it was entitled to summary judgment because Murray failed to produce any evidence that his supervisor possessed any sort of retaliatory animus toward him. The district court denied UBS’s motion and instructed the jury that Murray was required only to prove that his protected activity was a contributing factor in the termination of his employment. The jury found for Murray and awarded him over $900,000 in damages and over $1.7 million in attorney fees. UBS appealed to the Second Circuit.

The Second Circuit vacated the District Court’s verdict and remanded the case for a new trial, holding that retaliatory intent was an essential element of a Sarbanes-Oxley Act whistleblower retaliation claim. The decision raised troubling questions among some securities industry attorneys.

The first issue was that the Second Circuit appeared to expand the Sarbanes-Oxley Act whistleblower’s burden of proof beyond the plain language of the statute. The second was that it also cut directly against the decisions of several other federal Courts of Appeal including the Fifth Circuit. Those Appeals Courts had consistently held that it was sufficient for Sarbanes-Oxley Act whistleblowers to show that their protected activity was a factor contributing to the employer’s adverse employment action. Trevor Murray sought Supreme Court review.

Sarbanes-Oxley Act Whistleblower Protection

The Sarbanes-Oxley Act of 2002 was enacted in response to financial fraud scandals in the early 2000s. These involved publicly traded companies such as Enron Corporation, Tyco International plc, and WorldCom. The scandals shook investor confidence in the trustworthiness of corporate financial statements and led many to demand an overhaul of financial regulatory standards. Whistleblowing workers are an essential part of Sarbanes-Oxley and many other statutory efforts to prevent, catch, and punish fraud. Employees are the eyes and ears on the ground and are most likely to be aware of wrongdoing.

The hitch is that they are also very vulnerable to employment retaliation. The retaliation can take many different forms – from employment termination to the workplace ostracism at issue in Halliburton, to the defamatory reporting of negative information on the FINRA Form U-5. The last, which we have encountered in our own practice at Kilgore & Kilgore, can wreck the career of an investment advisor or analyst. The fraud laws don’t work if whistleblowers can’t speak.

Legal Advice for Sarbanes-Oxley Whistleblower Retaliatory Termination Claims

In general, plaintiffs pursuing a Sarbanes-Oxley retaliation claim must prove four things:

  • Their employer is covered by the law, which extends its protections to employees of publicly traded companies and their contractors.
  • The whistleblower has engaged in activity that was protected by the Sarbanes-Oxley Act, which includes opposing or raising concerns about fraud or securities law violations;
  • An adverse employment action ensued. This includes employer actions (like firing) that would dissuade a reasonable person from blowing the whistle; and
  • The protected activity caused the adverse action.

Number four – causation — can be a bear. That is where the Supreme Court focused in Murray. The Court held that a trial court may infer causation from a sequence of activities. Whistleblowers need not prove a specific statement of retaliatory intent, which few employers would be so incautious as to make.

Well-intentioned employees acting in good faith to comply with the law should not be left wide open to retribution. Whistleblower lawsuits cannot serve their deterrent purpose if the whistleblower’s claim is too difficult to prove.

How to Report Securities Fraud as an Employee

This is a sensitive and uncomfortable situation, and the first step you take should be to consult an experienced employment law attorney about protecting yourself. It can cost you your job or your license to practice a profession if you report it. On the other hand, if you have played an unwitting part in the activity, you may be subject to legal penalties. Several different laws protect whistleblowers and other employees who have experienced retaliation, such as wrongful termination. Contact Kilgore Law for a confidential discussion. For more information about our whistleblower protection legal practice, click this Whistleblower Attorney. To learn about Kilgore Law’s retaliation law practice, click this Employment Retaliation. Whatever you decide to do, reach out to a lawyer before you file a complaint.

Our Employment Law Firm Can Guide You Through Your Claim, for Whistleblower Protection and Employer Retaliation Claims

Contact us with your whistleblower and employer retaliation questions. Competent legal representation is necessary in these complicated situations. We may be able to help you. To get the conversation started, click here Contact Kilgore Law.

Ignored Employee Harassment Claims Became a Sexual Harassment Lawsuit That Lost, Then Won on Appeal

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The decision of the Fifth Circuit in Wallace v. Performance Contractors has been hailed as one of the most significant Fifth Circuit employment law cases of 2023. It maps a path for more protection in the future from workplace harassment. In January 2023, the Fifth Circuit reversed the district court’s grant of summary judgment to the employer on the plaintiff’s Title VII claims of sex discrimination, sexual harassment, and retaliation. In general, the decision departs from the Fifth Circuit’s employer-friendly approach to workplace sexual discrimination lawsuits under Title VII of the Civil Rights Act of 1964.

Fighting Sex Discrimination at Work

More importantly, this decision provides a roadmap for those who want to challenge existing precedent in workplace discrimination lawsuits. The appeals court’s meticulous analysis bears fruit in a similar case, Hamilton v. Dallas County, learn more click here Unlawful Employment. Wallace opened the door for Hamilton to change the law in ways that expand legal precedent and workplace rights throughout Texas, the Fifth Circuit, and beyond. This analysis of the Wallace decision may help future cases of workplace harassment and retaliation.

Workplace Equality and Sexual Discrimination

Magan Wallace was hired by Performance Contractors, a construction company, in December 2016. She was laid off as part of a reduction-in-force in April 2017 but was rehired shortly thereafter. Her initial job classification was as a helper, but she was rehired as a laborer. The two job categories pay the same wage, but helpers are permitted to work while on scaffolding. The helper classification is seen to offer better opportunities for promotion and training. Prior to her April 2017 layoff, Wallace had worked for Performance Contractors while on scaffolding.

Sexual Discrimination Examples

When Wallace was rehired, she asked to continue working on scaffolding. However, a supervisor told her that she had “t*** and an a**” and could not work on scaffolding because Performance Contractors had no safety harnesses that fit women. Her supervisor also stated (in Wallace’s vicinity) that he needed “a bucket of b*** jobs.” Another supervisor texted Wallace a picture of his genitals and asked her to send back a picture of her breasts. On several other occasions, Wallace alleges that the same man asked to “grab and squeeze” her breasts. Another massaged her shoulders without her consent. Yet another supervisor commented that she was in her “sexual prime.” She complained to HR, but never received a call back. When she took a sick day to attend a medical appointment where she sought treatment for anxiety and depression, she was first suspended, and then fired.

Wallace brought a Title VII lawsuit in the Western District of Louisiana alleging sex discrimination, sexual harassment, and retaliation. The District Court granted summary judgment to Performance Contractors. The Fifth Circuit reversed, holding that her allegations were sufficient to merit a full trial on all three issues.

Title VII Sexual Discrimination

Title VII provides that “it shall be an unlawful employment practice for an employer to limit, segregate, or classify his [or her] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [or her] status as an employee because of such individual’s race, color, religion, sex, or national origin.” Wallace’s claim focuses particularly on the issue of sex discrimination.

An employer may not take an adverse employment action against an employee because of his or her sex. In the Fifth Circuit at the time of Wallace’s claim, the term adverse employment action was understood to mean an ultimate employment decision affecting hiring, firing, demoting, promoting, granting leave, or paying. The District Court found that preventing Wallace from working at elevation was not an ultimate employment decision and thus was not an adverse employment action that would support a Title VII sex discrimination claim.

In Wallace, the Fifth Circuit finessed the ultimate employment decision issue. Instead, it found that Wallace’s re-classification as a laborer, even without a reduction in pay, was a demotion. Under existing precedent, a demotion could support a claim for sex discrimination. The court decided, as a result, that Wallace’s complaint was sufficient to withstand a motion for summary judgment.

Sexual Harassment

The District Court acknowledged that Wallace faced severe or pervasive harassment. But it concluded that she could not establish a nexus between that harassment and her termination, which was a tangible employment action. It also accepted the employer’s defenses that:

  • The company had exercised reasonable care to prevent and promptly correct any sexual harassment; and
  • Wallace unreasonably failed to take advantage of the appropriate HR procedures for dealing with the harassment.

The Fifth Circuit analyzed the harassment Wallace suffered in two alternate ways, mirroring the two ways in which sexual harassment is seen to occur at work. The first, quid pro quo (this for that) harassment, usually requires submission to sexual contact as a condition for favorable treatment. The second, hostile work environment harassment, exists when a workplace is “permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive enough to alter the conditions of the victim’s employment and create an abusive work environment.”

Regarding quid pro quo harassment, the Fifth Circuit found that a reasonable jury could find that Wallace was suspended and later fired because she rejected harassment from her supervisors. Similarly, with respect to hostile work environment harassment, the court found that a reasonable jury could conclude that the workplace environment was objectively hostile and there was a material fact issue about whether the employer effectively implemented its anti-harassment policy. An issue of material fact must be decided at trial and cannot be dismissed at the summary judgment phase.

Retaliation

Title VII also forbids retaliation as a form of sex-based discrimination. To establish a retaliation claim, the employee must show that:

  • He or she participated in an activity protected by Title VII;
  • The employer took an adverse employment action against the employee; and
  • A causal connection existed between the protected activity and the adverse employment action.

The District Court had characterized Wallace’s complaints about harassment as general gripes. The Fifth Circuit, on the other hand, held that by complaining to her supervisors about not being afforded opportunities based on her sex, Wallace engaged in protected activity. This, alone, was sufficient to survive a motion for summary judgment.

Why the Wallace Decision is Significant to Sexual Discrimination and Harassment Lawsuits

As with many decisions, the real measure of importance may be in the decisions that follow. On August 18, 2023, the Fifth Circuit set new legal precedent by holding that workers who have been victims of discrimination at work can file a Title VII lawsuit, even if the employer’s action did not affect hiring, firing, pay or leave. In the Hamilton case, the court’s decision tackles the issue that was sidestepped in the Wallace case. That is, whether a change in duties, even without a change in pay, may be an ultimate employment decision that amounts to an adverse employment action.

Title VII Employment Law

The painstaking analysis of the Wallace case may set out a path for additional decisions in the areas of sexual harassment and retaliation. Time will tell. The bottom line is that employees in Texas and throughout the Fifth Circuit may now be able to succeed with a wider variety of gender bias lawsuits under Title VII.

Kilgore & Kilgore Employment Lawyers Understand Title VII and Fight for Workplace Equality

Fighting sex discrimination and harassment at work is what we have been doing for decades, as laws have evolved. For more information, click here Sexual Harassment. Experience counts as laws change. Learn how we have evolved, click here Employment Law. Our Texas employment lawyers have experience with workplace discrimination claims under a variety of state and federal laws. Contact us if you have been the victim of discrimination, harassment, retaliation, wrongful termination, or other workplace equality issues. Click here to get the conversation started Kilgore Law. Fill out and submit the form on our website. We will contact you to see if we can help.

Definition of Disability Discrimination in Texas Now Being Refined by Texas Courts

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A recent Fifth Circuit Court decision explicitly acknowledged that the ADAA (Americans with Disabilities Amendments Act of 2008) modifies the definition of disability in the original ADA (Americans with Disabilities Act) to include “[a]n impairment that is episodic or in remission…if it would substantially limit a major life activity when active.” This modification affects employment law in workplace bias suits, leaves the door open for Texas employment lawyers to protect workers, illustrates the legal consequences of ignoring the need for reasonable accommodations, and ensures the protection of disability rights at work.

The ADAA potentially expands employees’ disability rights at work in significant ways. But there is a lot to unpack in how the law is applied in Texas and throughout the Fifth Circuit. In the case of Mueck v. LaGrange Acquisitions, while the Fifth Circuit acknowledged the modification of the definition of disability, it nonetheless dismissed the plaintiff’s disability discrimination lawsuit against his employer. The employee claimed that he was terminated because of his alcohol use disorder, a condition that the ADA recognizes may be a disability. The Fifth Circuit, agreeing with the employer, found that the plaintiff’s employment was terminated because the employee was required to attend court-ordered treatment sessions during working hours, not because he was an alcoholic.

Workplace Disputes? Call a Texas Employment Disability Discrimination Attorney at Kilgore & Kilgore

If you suspect that you have been the victim of workplace bias, disability discrimination, or that your employer is unfairly denying your request for reasonable accommodation, reach out to us. Changes in employment protection laws occur through court decisions quite frequently. Let us help you. We have a long-standing disability discrimination practice. We have helped many workers get the justice they deserve. Click on this link to learn about our workplace discrimination practice. Use this link Contact Kilgore Law to get the conversation started. We offer a free evaluation of your case.

Alcohol Use Disorder in Employment

The plaintiff in this case was a self-described alcoholic. By his own account, while employed, he might have one to two drinks in the evening on workdays. His drinking never prevented him from working. However, when off duty, he drank excessively. When binging, he neglected basic elements of self-care, failing to shower, brush his teeth, clean his house, or keep up with any other chores.

Workplace Attendance Issues

Not surprisingly, the plaintiff’s drinking also led to legal consequences, including several citations for Driving Under the Influence and public intoxication. Finally, in 2019, the plaintiff was cited for a third DWI and was ordered to attend weekly substance abuse classes. Some of these classes conflicted with shifts that he was scheduled to work. He independently arranged for a coworker to cover the days on which he needed to leave early from his day shift, but could not find coverage for the night shifts for which he would arrive at work late.

Workplace Disputes

The plaintiff insisted that he told his supervisor that he was an alcoholic, that he wanted to turn his life around, and asked his employer to accommodate his attendance at substance abuse classes. His supervisors disputed these statements. His employment was terminated, and he was told that the decision was based on the conflict between the substance abuse classes and his shift schedule.

Disability Discrimination in Texas

Mueck sued his employer under the ADA for intentional discrimination, failure to provide reasonable accommodation, and retaliation. The District Court for the Western District of Texas dismissed his lawsuit, finding that he had failed to show that his alcoholism was a disability or that he had requested a reasonable accommodation. Mueck appealed to the Fifth Circuit, which affirmed the District Court’s dismissal, although on different grounds.

Federal Workplace Employment Discrimination Laws and Texas Labor Code Chapter 21

This case is the first Fifth Circuit case that explicitly recognizes the expansion of the definition of disability to include conditions that are episodic or temporary in nature. It has, nonetheless, been part of the plain language of the amended law for 15 years. Under the ADA, workplace discrimination may occur when an employee is terminated, suspended, denied training, or a promotion, or anything else that negatively affects the terms and conditions of employment because the worker has a disability or needs a reasonable accommodation. Since 1990, alcohol use disorder has been considered as a condition that may qualify as a disability covered by the ADA, if it affects a major life activity like the basic tasks of self- care. Commentary on the 2008 expansion of the definition of disability to include conditions that are episodic or temporary suggests that this may sweep in conditions like:

  • post-traumatic stress disorder,
  • schizophrenia,
  • depression,
  • diabetes,
  • asthma,
  • hypertension,
  • cancer that is in remission, or
  • other conditions where an individual might experience flare-ups.

Texas Labor Code Chapter 21 also prohibits employers from discriminating against applicants or employees with disabilities in job applications, procedures, conditions, and privileges of employment. This law is generally thought to track the ADA. Mueck, however, does not cite Chapter 21, so the issue of whether Texas state law recognizes the expanded definition of disability remains unresolved.

The Future of Disability Discrimination in Texas

The primary importance of the Fifth Circuit’s decision in Mueck may be its explicit recognition of the expanded definition of disability. But the case also leaves many unanswered questions, particularly because significant issues of fact were disputed from the outset. At trial, the District Court appears to have incorrectly applied pre-1980 precedent in determining whether Mueck had a disability. Its analysis stopped with the determination that he was not disabled. The Fifth Circuit recognized the correct standard, but determined that Mueck had not been discriminated against because he had, in fact, been discharged for workplace attendance issues.

Ordinarily, the question of whether an employer has discriminated against an employee on account of a disability goes through several steps, as described here:

  • To qualify as a disability, the condition must affect the worker’s ability to perform a major life activity. These may include things like bathing, eating, sleeping, working, and communicating with others. After 2008, the effects of the disabling condition need not be permanent or constant.
  • The worker must also notify the employer that he or she has a disability and ask the employer for an accommodation.
  • The employer must then engage the worker in an interactive process to determine whether a reasonable accommodation is possible. This process may permit an employer to ask for medical records, propose alternative accommodations and determine whether the changes would be effective in allowing the worker to perform the fundamental functions of the job.
  • An employer need not commit to an accommodation that would cause it undue hardship. Undue hardship is understood to mean causing significant difficulty or expense.

Neither decision reaches questions concerning the adequacy of the interactive process, the reasonability of the requested accommodations or what constitutes significant cost or difficulty on the part of the employer. These are typically the issues on which disability discrimination in employment lawsuits turns.

There are also nagging questions about whether alcohol use disorder is subject to a different level of scrutiny than other disabilities. Many find it particularly surprising that the Fifth Circuit did not address whether the temporary schedule accommodations the employee claimed to have requested were reasonable. But for the disputes at trial about whether he had appropriately disclosed his disability or requested schedule changes, this case might have taken a different turn.

Disability Discrimination Attorneys Defend Employment Rights at Work

Our Texas employment lawyers have decades of experience with workplace disputes, including disability discrimination and other Texas employment issues. Use this link to reach out to us Contact Us with your questions and concerns.

Veteran With Iraq War Injuries Awarded $2.5 Million in Re-employment Lawsuit

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On September 29, 2023, a Nueces County Texas jury awarded retired Capt. LeRoy Torres $2.49 million, finding that the Texas Department of Public Safety discriminated against him by refusing to allow him reasonable accommodations when he came back to work with a service-related injury from the Iraq war. The decision was hailed as “a huge win for veterans with service-related disabilities.” This was not an easy victory. Capt. Torres’ battle against employment discrimination took him 11 years and a trip to the U.S. Supreme Court – ten years longer than his honorable service in Iraq. Employment discrimination against veterans remains an unfortunate reality.

Are You Having Problems With Employment Discrimination?

Kilgore lawyers will stand by you and protect your employment rights. We are veterans too. Veterans, reservists, and regular workers now have a broad range of legal employment protections when it comes to employment rights. But some do not know about the employment discrimination features of Texas and federal law. To learn more about our legal representation, click here Servicemember Rights. Click here to learn more about Employment Discrimination. To read an article on the Uniformed Services Employment and Reemployment Rights Act of 1994, click here USERRA. To get the conversation started about your legal rights, click this link Contact Kilgore Law and submit your contact information so we can answer your questions.

Military Deployment – The Cost of Honorable Service

Capt. Leroy Torres enlisted in the U.S. Army Reserve in 1989. In 1998, he was employed by the Texas Department of Public Safety (DPS) as a Texas State Trooper. He worked as a trooper until 2007 when his reserve unit was deployed to Iraq. Torres spent his deployment at Camp Anaconda in Balad, Iraq, where the toxic fumes from ten acres of burn pits filled the air. His barracks were within a mile of the burn pits.

In the burn pits, everything that was no longer needed was doused with jet fuel and burned. This included amputated body parts, arms, and legs left behind. Aircraft engines, computers, and tires were burned there. Torres and those with whom he served had no choice but to breathe the air. Even before Capt. Leroy Torres left Iraq, he began having severe headaches. He was honorably medically discharged in 2008. He came back with a diagnosis of constrictive bronchitis, a respiratory condition that narrowed his airways and made breathing difficult. Once home, Torres began having chest pains and other symptoms.

Re-employment with the Texas Department of Public Service (DPS)

Nonetheless, Capt. Torres sought re-employment with the DPS. It was a job he felt called to do. At trial, he testified that “Servicing [sic] as a trooper wasn’t just a job that I would just go to earn a paycheck. It’s just like the military. Something I lived by.” DPS only made an offer of temporary duty, which he declined. He sued DPS in 2017, alleging that the agency’s failure to offer him a job that would accommodate his progressing disability violated USERRA (Uniformed Services Employment and Re-employment Rights Act of 1994), which offers re-employment and prohibits adverse employment actions against an employee with a military service history. The trial court ruled in his favor, but on appeal, the appellate court reversed that decision, finding that, because the DPS is an agency of the state of Texas, it was immune from civilian lawsuits. That decision sparked the public’s collective conscience. Military service was the code by which Capt. LeRoy Torres lived. It is the code which many veterans live by. It is one of the reasons so many veterans find themselves in law enforcement and other public service jobs.

U.S. Supreme Court Rights the Wrong of Employment Discrimination Against Veterans

Capt. LeRoy Torres sought to have the decision reviewed by the U.S. Supreme Court. In June 2022, the U.S. Supreme Court held that Torres did have standing to sue the DPS. It then remanded this discrimination lawsuit back to Texas state court for a decision consistent with its holding. This was a decision that Kilgore Law covered at length in our September 2022 blog post. That brings us to where we are today and the 2023 decision by the Nueces County jury.

Much has happened in the meantime, on both on the legal and personal front for servicemembers who, like Capt. LeRoy Torres, were exposed to the poisonous fumes from burn pits. Capt. LeRoy Torres has since been diagnosed with terminal lung disease, toxic brain injury, and autoimmune issues. The jury’s award has not come too soon and will certainly be useful for his future as a wounded warrior.

USERRA (Uniformed Services Employment and Re-employment Rights Act of 1994) and Disability Benefits

If a veteran has a disability incurred in or aggravated by his or her service, an employer (now including Texas state agencies) must make reasonable efforts to accommodate the disability and return the veteran to the position in which he or she would have been employed but for the military service. If the wounded warrior is not qualified for that position due to disability, USERRA also requires the employer to make reasonable efforts to help qualify the veteran for a job of equivalent seniority, status, duties, and pay, which he or she is qualified to perform or could become qualified to perform. This could include training or retraining for the position. These were the benefits that Capt. LeRoy Torres sought.

Employment Discrimination Rules in Other Federal and State Laws

Capt. LeRoy Torres sued the DPS specifically under the provisions of USERRA, but there are other federal and state laws that work together to protect the employment rights of wounded warriors. These employment rights are included in the ADA (Americans with Disabilities Act), the PACT Act, and provisions of the Texas Government Code.

Benefits Under the PACT Act1

The lifelong injuries caused by bullets, bombs, and combat are easy to recognize. Invisible war injuries, like a toxic brain injury or constrictive bronchitis, are harder to spot and their effects may not appear for years. The PACT Act expands and adds benefits for veterans, including:

  • Eligibility for VA medical benefits for veterans with toxic exposures and veterans of the Vietnam War, the Gulf War, and post-9/11 eras;
  • A list of more than 20 new presumptive conditions for burn pit and other toxic exposures; and
  • Required Veterans Administration screening for toxic exposure for every veteran enrolled in VA health care.

The ADA (Americans With Disabilities Act)

The federal ADA prohibits employment discrimination against people with disabilities in several areas including employment, transportation, public accommodations, communications, and access to state and local government programs and services. With respect to employment, the law protects the rights of both employees and applicants.

Employment Discrimination Laws in the Texas Government Code

The Texas Government Code provides that members of the Texas National Guard and other state military forces who are called to active state duty by the governor are entitled to the same benefits and protections as USERRA (Uniformed Service Employment and Reemployment Rights Act of 1994).

Employment Discrimination is Illegal

Are you having problems with employment discrimination or re-employment discrimination? Our employment lawyers follow legal developments closely and are experienced with getting the damages to which our clients are entitled. To get the conversation started about your legal rights, click this link Contact Kilgore Law.

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(1) PACT ACT: Promise to Address Comprehensive Toxics Act

New Federal EEOC Workplace Harassment Guidelines and Employer Liability

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In October 2023, the Equal Employment Opportunity Commission (EEOC) published new draft guidelines on workplace harassment. The new document, called Proposed Enforcement Guidance on Harassment in the Workplace, is the first official EEOC guidance since 1999. This 144-page draft is a gold mine for HR Managers. It is an encyclopedia of information about best practices relating to employment laws, discrimination charges, sex discrimination, sexual harassment, race discrimination, employer responsibility, and employer liability.

This proposed new EEOC guidance compiles 24 years of legal precedent. It provides examples of how these principles should be applied to workplaces re-shaped by the #MeToo movement, the COVID-19 pandemic, the overturning of Roe v. Wade, and the U.S. Supreme Court’s Bostock decision. In addition, the draft guidelines contain 13 detailed, footnoted examples (Examples 27-40) of situations in which employers might find themselves legally responsible for the actions of employees, contractors, and others.

Kilgore & Kilgore Employment Guidance

Guarding an employer from legal liability is among an HR manager’s top tasks. Now is the time to become familiar with the proposed guidance and to evaluate existing workplace policies and employment guidelines. It is not too early to seek Kilgore & Kilgore employment guidance from their experienced team of lawyers.

Title VII and EEOC Workplace Harassment Guidelines

Title VII of the Civil Rights Act of 1964 protects job applicants and employees from employment discrimination based on race, color, religion, sex, or national origin. In 1986, the U.S. Supreme Court in Meritor Savings Bank v. Vinson, held that workplace harassment can constitute unlawful discrimination under Title VII.

Although many high-profile cases involve harassment based on sex, race, or national origin, the EEOC also enforces laws prohibiting work-related harassment based on color, religion, disability, genetic information, and age (collectively known as EEO laws). Notwithstanding enforcement efforts, many workers still experience illegal workplace harassment. Texas consistently accounts for roughly ten percent of the total workplace discrimination charges in the U.S.

LGBTQ+ Harassment Addressed in the New Guidelines

The U. S. Supreme Court’s 2020 Bostock decision clarified that prohibited workplace sex discrimination includes bias on the basis of gender identity and sexual orientation.

  • Example 4 in the proposed guidance document makes it clear that refusing to use an employee’s preferred name or pronoun may constitute sexual harassment.
  • The EEOC has also taken the position that employers are prohibited from denying employees equal access to a bathroom, locker, and/or shower that corresponds with their gender identity.
  • The draft guidance states that employers are prohibited from firing, refusing to hire, or taking assignments away from someone because customers or clients prefer to collaborate with an individual who has a different sexual orientation or gender identity.
  • Example 9 in the proposed guidance document explores the use of derogatory epithets based on sexual stereotyping. In that example, Eric, an iron worker, alleged that he was subjected to harassment based on his supervisor’s perception that he was feminine. Such harassment included being called pu__y, princess, and fa___t, often several times a day.
  • The EEOC has also taken the position that religious accommodations for employees with sincerely held religious beliefs do not include allowing that employee to create a hostile work environment for an LGBTQ+ coworker.

Online Harassment in the New EEOC Harassment Guidelines

Most employers are already painfully aware of the alcohol-fueled harassment potential of the holiday party, even if held offsite. The proposed guidance goes further to emphasize that conduct occurring within a virtual work environment or via private social media communications can also amount to actionable harassment.

Following Example 23, the proposed guidance notes that “conduct within a virtual environment can contribute to an actionable hostile work environment. This can include sexist comments made during a video meeting, racist imagery that is visible in an employee’s workspace while the employee participates in a video meeting, or sexual comments made during a video meeting about a bed being near an employee in the video image.”

The EEOC guidance also notes that employers may be liable for online harassment, even if that harassment occurs only over the employee’s private social media accounts. Example 25 relates the story of a black employee exposed to an offensive post on Instagram. In the post, two of the black employee’s co-workers included images of the employee juxtaposed with an image of the fictional ape Cornelius from the movie The Planet of the Apes, along with text explicitly comparing her to Cornelius. This also amounts to legally actionable race discrimination in employment.

Pregnancy-Based Harassment Involving Reproductive Decisions

The draft guidance notes that sex-based harassment includes mistreatment based on an employee’s pregnancy and reproductive choices, including decisions about contraception, abortion and, presumably, the choice to have and care for children. Employed mothers who are breast feeding will no longer need to pump in a cold bathroom stall. 

Consider Example 37: “Malak, a server at a sports bar, is visibly pregnant. Every Sunday, Kevin and Troy spend the afternoon at the bar cheering on their favorite football team, and they usually sit in Malak’s section. They repeatedly ask if they can rub her belly ‘for luck’ before games, and berate her when she refuses, calling her a ‘mean mama.’ They also frequently make beeping sounds and yell, ‘Careful! Wide Load!’ when Malak serves other tables. In addition, they ask if she plans to breastfeed and offer ‘to help with practice sessions.’” A manager, Sven, makes only halfhearted efforts to mitigate the situation. According to this illustration and based on these fictional facts, the employer has failed to take reasonable corrective action to address Kevin and Troy’s pregnancy-based harassment of Malak.

Employer Responsibility, Employer Liability – A Wide Net of Responsibility

The EEOC’s new guidance breaks the complicated issue of legally prohibited harassment into three questions:

  • Was the conduct based on the individual’s legally protected characteristic under the federal EEO laws?
  • Did the harassing conduct result in discrimination with respect to a term, condition, or privilege of employment?
  • Is there a basis for holding the employer liable for the conduct?

Employer Liability and the New EEOC Harassment Guidelines

Not every stupid, boorish, and juvenile employee misbehavior ends in employer liability. If Fred and Frank fight over the real or perceived misappropriation of a romantic partner – that is not a legally protected characteristic. If Felicity says something crude about race to a close non-work friend that had no consequences with respect to the maligned worker’s employment, the incident may not rise to the level of prohibited discrimination. If an employer neither knew nor had reason to know about Felix’s racist/ageist/sexist misbehavior last Thanksgiving, then there may be no basis for holding the employer legally responsible.

On the other hand, Part IV of the proposed EEOC guidance casts a very wide net of liability. If the conduct meets the first two criteria, whether the employer is legally liable will depend on the role of the harasser. Is the harasser:

  • the alter ego or proxy for the employer?
  • a supervisor?
  • a colleague or non-employee?

The legal theories and kinds of proof required in each category are different. For HR purposes, however, it may be enough to recognize that liability is possible in each situation.

Contact Kilgore & Kilgore For Employment Guidance

To learn more about recent changes in sexual harassment cases, click here Forced Arbitration. To read about sexual harassment cases in Texas, click here Texas law. For a general overview of Kilgore Law’s employment practice click this link Protect Your Dignity. Click here to get the conversation started contact Kilgore & Kilgore. Or call us at (214) 949-9099. We are here to help you.

Changes in DOL Overtime Compensation Spell Changes for Employers and Employee Overtime Protections

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The U.S. Department of Labor has announced new proposed overtime protections that would extend overtime compensation to 3.6 million salaried workers. The proposed rule would guarantee overtime wages for most salaried workers earning less than $1,059 per week, or $55,000 a year. Three things about this change are important to understand:

  • This is a big increase. Since 2020, the salary threshold has been $684 per week or $35,568 annually;
  • The new salary threshold would be updated every three years to remain current with new wage data. The updates would be automatic and would not require further rulemaking; and
  • The changes are nearly certain to be challenged, particularly in the Fifth Circuit.

If approved as is, the new rule will take effect in mid-2024, when the $55,000 per year threshold will likely have been indexed to roughly $60,000. The public comment period for the proposed rule closes at the end of 2023. Worker classification is a critical aspect for employers who should review these details now before the new rule goes into effect.

Employee Classification May Stymie Overtime Protection

Everybody knows an A.J. He was a great guy and a valuable employee. He could do everything – run the cash register, change out the fryer oil, and flip burgers like a machine during rush hours. He put in all the extra shifts he could, especially after the baby came. No one deserved it more when they made him a manager. In addition to going to occasional manager meetings, he still manned the mop, ran the register, and stayed late to close at night. Worse yet, his new salary came to less than his old wages plus overtime. At work, he was exhausted and mean. Eventually his girlfriend left and took the baby. He quit. Then he disappeared. Nobody knows what happened next. So much for the success story. This scenario could have been avoided.

For the employee above, what happened to that worker was a shame, a dirty shame. What he paid was not the price of success. It was the cost of exploitation. This does not have to happen to someone else. Know that you are not alone and that we are here to help.

Understanding Employee Rights With Kilgore & Kilgore

If you have worker classification or overtime compensation law questions about wages, hours, overtime compensation, tips, independent contractor status, and other issues, reach out to us. Contact us using this link Contact Kilgore Law or call us at 214.969.9099. Click on this link to find out about our Wage and Hour Law Practice.

Now is the time to get the conversation started. Our Texas employment lawyers can help you, whether you are an employee with questions about worker classification or overtime compensation, or whether you are an HR manager with questions about how to prepare for possible employment issues with the new proposed changes.

The FLSA (Fair Labor Standards Act) and Overtime Wages

The FLSA requires that covered nonexempt employees must receive overtime compensation for hours worked over 40 per workweek at a rate not less than one and one-half times the regular rate of pay. But a lot is buried in that sentence. The new proposed rules get at the tricky question of who is an exempt employee.

Who is an Exempt Employee Without Overtime Protections?

The language of the new proposed law is convoluted. For employees, exempt from the law means not protected rather than free from. It is the employer who is free from the burden of calculating and paying overtime wages. FLSA Section 13(a)(1) takes minimum wage and overtime pay protections away from executive, administrative, and professional workers (referred to EAP employees), presumably on the theory that they can negotiate decent salaries. For high-rollers in executive and C-Suite positions, this may be true, but that is just a fiction for workers on the first rungs of the prosperity ladder.

To be considered an EAP employee, a worker must make more than a certain amount AND primarily perform executive, administrative, or professional duties as provided under the DOL’s duties test. The duties test is very fact-specific, troublesome standard on its own, and not at issue here. The bright-line dollar part of the test, on the other hand, will certainly draw fire.

Department of Labor History

In 2016, the DOL proposed a rule to nearly double the salary threshold for EAP employees from $455 to $913 per week. That rule was challenged shortly after its publication, and a federal judge in Texas blocked it from going into effect on the theory that the increase was too drastic. A lawsuit ultimately made its way to the Fifth Circuit. The DOL blinked and withdrew that 2016 proposal. The 2020 increase in the salary threshold, which is currently in effect, was far more modest. With this new 2023 proposal, the DOL is wading back into the fray.

The new limits of $1,059 per week, or $55,000 a year, are no sure thing. On the other hand, if they do become effective, mid-2024 is not so far away.

Lurking in the future, it is possible that the U.S. Supreme Court will limit what is known as the “Chevron doctrine”. Named after that Court’s landmark 1984 decision in a case known as Chevron U.S.A. v. Natural Resources Defense Council, the Chevron doctrine is the name of the rule that courts should defer to a federal agency’s interpretation of an ambiguous statute if that interpretation is reasonable.

The case to watch in the U. S. Supreme Court’s 2023 term is Loper Bright Enterprises v. Raimondo. The Loper case focuses on the ability of the Commerce Department to regulate commercial fisheries. A broad ruling, however, could also affect the DOL’s ability to implement wage and hour law. The smart money is on a late June 2024 decision, just about the same time that the DOL’s new rule might take effect.

Preparing for DOL Wage Changes and Overtime Protections

Now is the time for employers to do a sober self-audit to address the following questions:

  • Considering both the salary threshold and the duties test, are workers properly classified as hourly wage earners or salaried employees?
  • Assuming the salary threshold will ultimately go up by at least some fraction of the proposed amounts, what financial measures do you need to take? Are raises in the offing?
  • Revisit policies on use of company equipment and hours worked. Are workers required to be on call, even when not at work? Are you requiring workers to do company work during rest and meal breaks?
  • Is your timekeeping system adequate to handle those breaks?
  • How is employee morale, really? A pay dispute can cost you some of your best and most productive workers.

Reach out to Kilgore & Kilgore Employment Lawyers for Legal Help

Our Texas employment lawyers have decades of experience with wage and hour, overtime compensation, employee rights, and other wage and hour law claims. We are well prepared to handle the new changes coming soon to our clients. Use this link to get started Contact Us.

Recent Court Decision Opens Door to Wider Range of Texas Title VII Discrimination Claims

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On August 18, 2023, the Fifth Circuit set a new legal precedent for employment discrimination by holding that workers who have been victims of discrimination at work can file a federal civil rights lawsuit, even if the employer’s action did not affect hiring, firing, pay or leave. The decision in Hamilton v. Dallas County vacates the same Circuit’s employer-friendly rule that had barred many employment discrimination lawsuits and expands employment rights in Texas. Now, many more employees who are victims of discrimination at work may be able to file employment discrimination lawsuits.

The bottom line for Texas employees is that they may now be able to succeed with a wider variety of gender bias in workplace lawsuits under Title VII of the Civil Rights Act of 1964 (Title VII). It is not yet clear whether the new standard also applies to the Texas Commission on Human Rights Act (TCHRA). Interestingly, the U.S. Supreme Court is expected to weigh in on a similar Title VII question in its next term. But that decision may not land until June 2024.

Discriminatory Scheduling Policies Based on Sex

In April 2019, the Dallas County Sheriff’s Department moved from a seniority-based scheduling policy to a gender-based policy. Under the revised rules, only male detention officers were given the option to take full weekends off from work. Female detention officers were limited to either two weekdays or one weekday and one weekend day off. The new policy meant that the women never got a full weekend off. The Sheriff’s Department acknowledged that the new scheduling policy was based on gender, but it argued that it would be unsafe for all the men to be off during the week. Tellingly however, neither the inmate population nor other jail conditions were substantially different on weekends than they were during the week. In February 2020, nine female officers filed a gender bias in the workplace lawsuit against Dallas County for violations of Title VII and TCHRA. They claimed that the county “engaged in the practice of discrimination with respect to the terms and conditions of Plaintiffs’ employment.”

A Brief Review of Title VII and the Texas Commission on Human Rights Act

Title VII provides that “it shall be an unlawful employment practice for an employer ‘to limit, segregate, or classify his [or her] employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his [or her] status as an employee, because of such individual’s race, color, religion, sex, or national origin.’”

TCHRA provides for the execution of “the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments.” It further specifies that:

“An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:

  • fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
  • limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

At least on its face, TCHRA seems to be designed to follow federal law with respect to Texas employers.

The Fifth Circuit Changes Its Mind on Title VII Discrimination

At trial, a lower district court dismissed the complaint of the female officers under Fifth Circuit precedent in a case from 1995 known as Dollis v. Rubin. In that matter, the Fifth Circuit had interpreted Title VII to require an “ultimate employment decision” such as hiring, firing, granting leave, or a compensation determination. Although the weekend scheduling policy at issue in Hamilton v. Dallas County clearly discriminated based on sex, it did not appear to involve an “ultimate employment decision” under the Dollis standard. The female officers appealed to the Fifth Circuit.

In Hamilton, the Fifth Circuit vacated its previous Dollis decision, finding that the “ultimate employment decision” limitation was simply not in the language of Title VII. Hamilton brings the Fifth Circuit into line with the Sixth and D.C. Circuits. Other circuits, including the Eighth Circuit, continue to restrict Title VII claims in ways like the “ultimate employment decision” limit in Dollis.

In Hamilton, the Fifth Circuit did not address the counter argument that, with respect to the terms, conditions, or privileges of employment, Title VII requires a materiality or objective harm component. Otherwise, as the counter argument goes, employers might become legally liable for “de minimis [or] trivial workplace trifles.” The Latin maxim de minimis non curat lex means that “the law does not concern itself with trifles.” This maxim suggests that technicalities must yield to practical common sense and justice to avoid expensive litigation. The Fifth Circuit’s failure to address the materiality argument may turn out to be Hamilton’s proverbial Achilles heel.

Gender Bias in the Workplace

For workers, weekends off hardly seem like a mere trifle. Practical common sense and justice suggest that this is not about sleeping late or time to watch the game. The Dallas County Sheriff’s Department policy disadvantages only female officers. For women who still carry the greater share of family responsibilities, weekends may be what makes a family work. Scheduling policies can make or break childcare arrangements, not to mention an employee’s ability to do a job that both family and the community see as essential. Simply put, this is gender bias in the workplace.

Objective Harm in the Workplace

The Fifth Circuit is not the only jurisdiction to re-examine Title VII. In June 2023, the Supreme Court agreed to hear Muldrow v. City of St. Louis during its next term. In that lawsuit, Jatonya Clayborn Muldrow, a police sergeant, was involuntarily transferred out of the St. Louis police force’s intelligence unit where she worked closely with the FBI. Her new assignment was an administrative desk job. Her rank and pay remained the same, however. She brought a lawsuit under Title VII, claiming that that her transfer and subsequent request for re-assignment violated the law’s prohibition of workplace gender bias. At trial, her claims were dismissed. On appeal, the Eighth Circuit upheld the dismissal, opining that the transfer was a minor change in working conditions that did not meet the materiality in discrimination cases requirement by stating that it did not cause a “materially significant disadvantage” and did not violate Title VII. The U.S. Supreme Court has granted review.

Court watchers will have to wait until the end of the Supreme Court’s 2023-2024 term for a decision. But some fear that the requirement of “materiality” or “objective harm” may come back to haunt Title VII plaintiffs.

Kilgore & Kilgore Employment Lawyers Understand Title VII and the Texas Commission on Human Rights Act (TCHRA)

Experience counts as laws evolve. Our Texas employment law lawyers have experience with workplace gender bias claims under a variety of state and federal laws. Contact us if you believe that you have been the victim of discrimination, harassment, retaliation, wrongful termination, or other workplace equality issues. Reach out to us. Click here to get the conversation started contact Kilgore & Kilgore. Fill out and submit the form on our website. We will contact you to see if we can help.

Religious Accommodation Regarding Employment Rights Amended by a Recent Supreme Court Decision

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The June 29, 2023 Supreme Court ruling regarding religious accommodation in Groff v. DeJoy changes federal law on employer responsibilities in the workplace. Specifically, the Supreme Court found that to deny an employee request for a workplace accommodation for a religious practice, the employer must show that the burden of granting the request “would result in substantial increased costs in relation to the conduct of its particular business.” The Court then remanded the lawsuit back to the Third Circuit. How this decision will affect employers, employees, and other interested parties remains to be seen, but battle lines are drawn.

Groff Decision on Religious Accommodation

While some Court-watchers welcome this as a long-overdue clarification of the Supreme Court’s decision in 1977 in Trans World Airlines, Inc. v. Hardison, others see it as a reversal-by-stealth of existing workplace religious accommodation precedents. It may be a continuing step by the Court to grant preferred status to Free Exercise Clause claims. Does this decision open the floodgates for lawsuits seeking to exempt religiously observant employees from the law? As the ensuing fights rage, employers must keep on working with the nuts-and-bolts work of balancing respect for religious rights and business needs. Furthermore, HR management would appreciate guidance on religious exemption best practices.

Employment Rights Versus Employer Responsibilities

The employer/employee relationship is not a simple bilateral arrangement. It exists within a tangled web of health and safety regulations, civil rights protections, existing contract obligations, consumer protection laws, team morale, and customary business practices. These complications can make the field of employment law difficult.

Our Employment Lawyers Have Answers About Religious Accommodation and Employment Rights

If you were denied time off for religious practices and wish to understand your employment rights or if you have questions about your company’s compliance with workplace accommodations, reach out to our employment lawyers. Experience counts when you are dealing with new and not entirely clear laws. Click here, fill out and submit the form you reach by clicking on this link Contact Kilgore & Kilgore. Or you can call us at (214) 969-9099. Both the federal law, known as Title VII, and Chapter 21 of the Texas Labor Code protect Texas workers from employment discrimination based on religion, sex, disability, race, age, and national origin. For a wider view of our employment law practice, click this link Employment Law. We look forward to reviewing your situation to see if we can help.

In Groff, the Religious Accommodation Request Was Denied

Gerald Groff, a mail carrier for the U.S. Postal Service and an Evangelical Christian, believes that the sabbath should be devoted to worship and rest. He did not want to work on Sundays for religious reasons. When Groff first started working at USPS, Sunday work was not necessary. Several years later, however, USPS contracted with Amazon to deliver packages on Sundays. Groff initially avoided the requirement by transferring to a rural facility that did not participate in the Amazon arrangement. When this facility later began requiring Sunday deliveries, USPS used other mail carriers to perform the Sunday deliveries, including carriers from other locations.

Eventually, Groff was asked to perform Sunday work, which he refused. He was disciplined and ultimately resigned. Groff then sued USPS under Title VII, asserting that USPS could have accommodated his Sunday sabbath practice without undue hardship to the conduct of its business. The district court granted summary judgment to USPS, and the Third Circuit affirmed, based on the Supreme Court’s decision in a case known as Trans World Airlines. Specifically, the Third Circuit found that USPS had shown that granting Groff’s request would cause it undue hardship because exempting Groff from Sunday work “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” The Supreme Court disagreed.

A Look at Undue Hardship and “de Minimus”

This presents a puzzle for employers. In both Supreme Court cases, Groff and Trans World Airlines, employer cost was explored. Under Title VII, employers are required to reasonably accommodate employees whose sincerely held religious beliefs or observances conflict with work requirements, unless doing so would create an undue hardship for the employer.

The Trans World Airlines case dealt with facts very like those in the Groff case. In Trans World Airlines, Larry Hardison, an airline employee, refused to work on his sabbath for religious reasons. Work-arounds involving schedule changes and overtime incentives designed to induce other workers to pick up his shifts eventually failed. Hardison was fired. The Trans World Airlines case articulated the rule that “requiring an employer to bear more than a de minimis cost to give [an employee] Saturdays off is an undue hardship. The issue of an employer’s “undue hardship” is reduced to the single factor of financial cost.

The Trans World Airlines case tells us that “undue hardship” means money. The Supreme Court decision in Groff adds a new twist because it focuses on the term “de minimus.” We can assume that the term “substantial”, as used in the Court’s opinion, is more than “de minimus.” But beyond that, much is murky. For example:

  • How much money is substantial?
  • Does this new substantial test allow for a reintroduction of pre-Trans World Airline factors like employee inconvenience, morale, or collective bargaining contract issues?
  • What about consumer concerns? In its earliest incarnation, the post office was seen as a public good, a means of communication essential to a functioning democracy. This is different from most businesses.
  • Who is the consumer served by the Sunday delivery requirements? Is it the American public or is it Amazon? Do consumer needs matter? Who is the customer, and does that mean a different standard should apply?

Without delving into all the interesting questions, Groff seems to generally tip the balance in favor of the employee requesting a religious accommodation.

What Can HR Management Do?

Many employers may be willing to protect religious rights in the workplace, but this involves some tricky balancing of interests. Here are some suggestions:

Step one: Assess the Situation

It would be smart to identify the areas around which religious accommodation requests might arise. Among these are:

  • Days off for sabbath observance, including days that are not Sunday;
  • Religiously required clothing, including head-coverings and other modesty rules;
  • Accommodations for workers who fast. The Ramadan fast includes abstaining from water, which is especially brutal for those who work outside or in heavy labor during the heat of summer;
  • Hand washing facilities for workers for whom hand washing is religiously required;
  • Places and times to permit daily prayer, including sexually segregated spaces; and
  • Vaccine requirements.

These are just a few: you know your workforce best.

Step two: Document and Quantify

Managers should document all efforts to accommodate a worker’s request and quantify (preferably in numbers) financial cost, time, co-worker complaints, consumer issues – anything that can be counted. Imagine this as a 360-degree evaluation. HR management should be prepared to present extensive evidence of efforts to accommodate employee religious practices and the burden these steps impose. Conclusory statements are not useful.

Contact Our Employment Lawyers Regarding Workplace Discrimination

Our experienced employment lawyers understand how careful employers must be when handling requests for a workplace accommodation. As well-intentioned as most HR management is, it would be foolish to ignore the new scrutiny under which these claims are viewed by a court of law. Reach out to Kilgore & Kilgore for a free review of the facts of your case and for suggestions about how to comply with the evolving standard. Click here to get the conversation started contact Kilgore & Kilgore

Age Bias in MLB Leads to Age Discrimination Lawsuit That May Benefit the Average Worker

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Recently, Kilgore & Kilgore lawyers Mitch Abeita, Bob Goodman and Eric Roberson filed a lawsuit against Major League Baseball (“MLB”) on behalf of MLB scouts alleging that Major League Baseball and individual clubs discriminated against older recruiters based on age. The case of Benedict v. Manfred cites violations of the federal Age Discrimination in Employment Act (ADEA) and the Texas Labor Code in addition to the laws of 11 other states. This lawsuit specifically names Robert Manfred, the Commissioner of Baseball, MLB, the Houston Astros, and the Texas Rangers.

Tackling age bias in MLB, a huge and well-funded behemoth, is not for the faint of heart. It would be a mistake, though, to understand the Benedict case as just a baseball lawsuit. Baseball is a business unlike anything else. The protections of employee rights, on the other hand, are for all of us. If you have that sinking feeling that your employer is pushing you out the door because of age bias, you may be right. Call us to get the protection you need to survive and win the game.

Kilgore & Kilgore Lawyers Go to Bat for Employees Who Face Age Discrimination at Work

Reach out to us if you believe that your employee rights have been violated, if you have experienced age discrimination, other forms of workplace discrimination, wrongful termination, or retaliation. Submit the form you find by clicking this link Contact Kilgore & Kilgore. Or call us at (214) 949-9099. We want to hear from you.

Age discrimination in employment, even if the workplace is a baseball diamond, is more common than many people think. For more information on our employment law practice, click here Employment Rights Discrimination. Our employment attorneys are experienced with handling cases of age discrimination in the workplace and all other forms of illegal employment practices.

Age Discrimination on the Field of Dreams

Long gone are the days when grizzled old scouts, many of them former players, roamed the backroads in beat up Buicks looking for a diamond in the rough. Today, scouts no longer rely on informal networks of high school, college, and American Legion coaches who swear they’ve seen the next Nolan Ryan. Sophisticated statistical analyses and state-of-the-art algorithms now help recruiters spot talent.

There are doubters, of course. What advantage the Moneyball approach offers is subject to debate, especially now that all the clubs use it. Because the numbers game is historical, it may perpetrate outmoded racial prejudices and other types of discrimination. And then, there is ageism. The older scouts are not out of the game when it comes to baseball statistics, but that is the assumption that may get hung around their necks.

This new lawsuit filing brought by Kilgore & Kilgore lawyers alleges that older scouts were blacklisted for re-employment by MLB, and that the league used analytics as an ongoing pretext for coordinated and systematic discrimination based on age. The Benedict v. Manfred case also alleges that the MLB used the pandemic as an opportunity to terminate an entire class of older workers thought to be more susceptible to the COVID-19 virus. Below are some of the details that could turn a Human Resources manager’s hair white:

  • In November 2020, the scouting director for the San Francisco Giants told a 63-year-old scout, Rick Ragazzo, that the team would probably “go younger” or hire internally;
  • The director of Latin American recruiting for the Atlanta Braves reportedly told former scout Gordon Blakeley that he was on a secret list maintained by several clubs of scouts who could not be hired back into professional baseball because of, among other things, their age.

Age Discrimination and Workplace Discrimination Violates Texas and Federal Law

In May 1922, in the case of Federal Baseball Club v. National League, the U. S. Supreme Court held that MLB was exempt from federal antitrust laws. That bit of baseball history has had wide-ranging implications. America’s national pastime occupies a unique place in law and has developed unique ways of doing business. It is a little difficult, therefore, to generalize from baseball facts (and players are governed differently than staff) to the legal principles that apply to the rest of us. Below is a brief outline of the protections of employment law that cover most Americans.

Texas Is Employment-at-Will, with Exceptions

In Texas, as in most of the U.S., the law views most workers as at-will employees. At-will employees can generally be terminated for good reason, bad reason, or no reason at all, but there are carve-outs. More specifically, Section 21.051 of the Texas Labor Code provides that:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age, the employer:

  1. fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
  2. limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

The federal ADEA, which is specific to age, protects certain applicants and employees who are 40 or older from age discrimination in hiring, promotion, discharge, compensation, or terms, conditions, or privileges of employment. The sweep of the phrase “terms and conditions of employment” is very wide. Under the ADEA, even terms and conditions that appear neutral on their face may run afoul of the law if they have a disparate impact on older workers.

What Happens When You Lose your Fastball?

Nolan Ryan was born in the small southeastern Texas town of Refugio (2021 population 2,790). He threw for an astounding 27 years with the Houston Astros, Texas Rangers, New York Mets, and California Angels. Ryan’s pitches consistently clocked at more than 100 miles an hour, but his arm eventually gave out when he tore a ligament in 1993. He was 46. That makes him about 19 when he started.

He had a soft landing, though. After a series of management jobs, he was inducted into the Baseball Hall of Fame in 1999. He is now a 76-year-old grandpa who raises beef cattle on the side. A soft landing is not the rule for the background toilers – like Rick Ragazzo — who worked to make the magic of baseball happen. After 34 years in the game, he cannot find work. In his own words: “It doesn’t seem right.”

We Have Answers to Your Questions About Employee Rights

Our Texas lawyers have decades of experience protecting employee rights and bringing employment discrimination claims based on age, gender, race, sex, religion and disability. Do you believe you have been on the receiving end of illegal practices or other illegal workplace issues? Reach out to Kilgore & Kilgore Lawyers for a free review of the facts of your case. Click here contact Kilgore & Kilgore, fill out and submit the form. We will contact you to determine whether we can help.