Veteran’s Request for Disability Accommodation Delayed for Six Months

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A Fifth Circuit Court ruling in May 2025 breathed new life into Alisha Strife’s disability discrimination lawsuit against her employer, the Aldine Independent School District. Strife is a veteran with a VA disability rating. She asked to bring her mobility assistance dog, Indie, to work. Six months passed as the school district asked for additional documentation – and then more documentation – and then an independent medical evaluation. Strife claimed accommodation stonewalling and sued for workplace discrimination under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and Texas disabilities law.

The Southern District of Texas dismissed her lawsuit with a motion for summary judgment. The Fifth Circuit Court reversed that action, tackling three troublesome questions:

  • Whether a six-month delay in initiating the interactive ADA process of her request for reasonable accommodation could be evidence of discrimination, even when the school district granted her request;
  • Did she need to demonstrate additional harm cased because of the delay; and
  • When is a delay so long that it suggests bad faith?

The reversal is good news for disabled Texas veteran because Alisha Strife got her day in court. But it leaves some issues unresolved.

Have You Experienced Workplace Discrimination? Are you a veteran with a USERRA claim? Call a Texas Employment Attorney at Kilgore & Kilgore

If you are a victim of workplace bias, disability discrimination, or a hostile work environment, reach out to us. It happens more frequently than many people realize. Kilgore Law has a long-standing workplace discrimination practice and has helped many workers get the justice they deserve. Contact us at 214-969-9099.

Employer Delays and Failure to Accommodate: Stonewalling at Every Turn Created Undue Hardship for this Injured Warrier

Alisha Strife is an Army veteran who served in Kuwait and Iraq during Operation Iraqi Freedom. While she was deployed in 2004, she sustained a traumatic brain injury as well as shoulder and leg injuries. She was discharged in 2005. She was diagnosed with PTSD, osteopenia, depression, and anxiety. She falls easily and has repeatedly broken bones. The Veterans Administration determined in 2017 that she is totally disabled.

After her military discharge in 2012, Strife went to work as a teacher in the Aldine Independent School District. When classroom teaching became too difficult, she transferred to the district’s Human Resources Department where she worked as a Performance Management Project Analyst. In 2022, Strife obtained a specially trained service dog to help her manage her disabilities. That August, she asked the school district to allow her service dog to come to work with her. By September, she began to suspect foot-dragging.

Disability Accommodation Delay Continued as the Application Process Slowed to a Crawl

After Strife made a reasonable accommodation request under the ADA, the district requested additional information. Strife provided a letter from her treating VA provider, who wrote that the dog was “invaluable to [the employee’s] mental and physical health recovery.” The district found the letter insufficient because the provider was not a board-certified medical doctor. Strife then provided a similar letter from her treating psychiatrist. The district then requested that she submit to an independent medical examination by a different doctor, who was not a psychiatrist or psychologist and had no expertise in diagnosing or treating PTSD, depression, or anxiety.

More Disability Accommodation Delays

Strife’s attorney provided three additional letters, including two from other physicians. She later underwent a VA-led exam (by a doctor other than the district’s choice) which confirmed that Strife had “chronically impaired standing balance and gait, with history of multiple falls and injuries including fractures requiring multiple leg surgeries,” and that her “condition is appropriate for the use of a mobility dog.”

In January 2023, she filed an Equal Employment Opportunity Commission (EEOC) charge. In February 2023, Strife filed a federal lawsuit asserting five claims under the ADA, the Rehabilitation Act of 1973, and Texas state law. Later that month, the district conditionally approved Strife’s request to bring her service dog to the workplace. Six months had passed since she first made her request for reasonable accommodation.

The District Court dismissed Strife’s claim, finding that the school district’s delay was not unreasonable because she was able to continue working without accommodation and faced only “possible physical and psychological danger because she did not have her service dog.” By that reasoning, she would have had to suffer a new, foreseeable injury, like a fall or a fracture, to get the interactive process moving.

Was it an Interactive Process or a Hostile Work Environment?

In plain language, when a disabled worker asks for some change in working conditions, the employer must meet and work with the employee to determine if some modification would enable him or her to perform the basic functions of the job. The modification must be reasonable for both parties. However, the language of the law is not always so plain.

The official guidance provided by the EEOC relies heavily on examples qualified by adjectives like “reasonable” or “timely.” It is clear, however, that an employer may require an employee to “go to an appropriate health professional of the employer’s choice if the individual provides insufficient information from his/her treating physician (or other health care professional).”

However, “an employer cannot ask for documentation when: (1) both the disability and the need for reasonable accommodation are obvious, or (2) the individual has already provided the employer with sufficient information to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested.”

Further, “[a]n employer should respond expeditiously to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, this too should proceed as quickly as possible.”

There are no bright lines, which is unsatisfying in some ways. But the Fifth Circuit provided some clarity on the issue of an employer’s responsibility.

Two Takeaways

First, delays, especially of several months, may be evidence of an unreasonable failure to accommodate a request. Secondly, the appropriate question is simply whether the employer failed to accommodate, not whether the worker suffered an additional injury or change in the conditions of employment while waiting for a decision on the ADA accommodation request. The bottom line is that Strife deserved to have her evidence heard in court.

Kilgore Disability Discrimination Attorneys Defend Employment Rights and Workplace Accessibility

Our Texas employment lawyers have decades of experience with workplace discrimination, including disability discrimination. We have a long-standing workplace and USERRA discrimination practice and 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 or call us at 214-969-9099 to see if we can help.

Fifth Circuit Ruling Challenges Constitutionality of NLRB – What About Employees’ Rights?

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In August 2025, the Fifth Circuit Court upheld injunctions barring the National Labor Relations Board (NLRB) from prosecuting unfair labor practice cases against SpaceX and two other companies. In its decision, the Court found the protections that NLRB members and administrative law judges (ALJs) have from being fired by the President of the United States violate the U.S. Constitution.

This decision is headed to the Supreme Court because, at least on one level, it is about the balance of power between the President and Congress. This is about the fundamental structure of American government. (To be clear, this lawsuit before the Fifth Circuit Court also named as plaintiffs two other employers. Although the facts differ, all advance the same constitutional arguments.)

The Real Issue: Workplace Sexual Harassment

This case is also about the eight SpaceX engineers who believe they were fired for criticizing Elon Musk’s sexist conduct and the company’s tolerance of sexual harassment in the workplace. This may be the single most important part of the story to remember.

Kilgore & Kilgore – Texas Employment Lawyers

Our employment discrimination lawyers never lose sight of issue number one, the employee, and the right to fair pay, equal treatment, a safe workplace free of fear, harassment, retaliation, and intimidation. If you have legal concerns about your treatment at work, call us at (214) 969-9099.

SpaceX Employee Fired for Calling Out Workplace Sexist Conduct and Sexual Harassment

SpaceX workers complained to the NLRB that SpaceX wrongfully fired them in 2022 for publishing an open letter criticizing Elon Musk’s alleged sexist conduct in the workplace and the company’s tolerance of sexual harassment in violation of the National Labor Relations Act (NLRA). SpaceX then sued the NLRB, challenging the constitutionality of the agency’s structure, specifically by making it difficult for the President to fire the agency’s administrative law judges and board members, and denying companies the right to jury trials in employment disputes.

SpaceX sought a preliminary injunction to stop the NLRB’s administrative proceedings. The motion was granted by the Western District of Texas in 2024. In August, this (along with similar cases from the Southern and Northern Districts) was affirmed by the Fifth Circuit. In its opinion, the Fifth Circuit noted that it believed that SpaceX was likely to prevail and that it would be irreparably harmed if the injunction were not upheld.

Cases Stay Frozen and Unresolved

What about the harm to the SpaceX engineers who lost their jobs for criticizing Elon Musk’s alleged sexist behavior and claim of a hostile work environment? As legal scholars debate constitutional issues, the workers get no relief. Their cases stay frozen and unresolved.

Background of the NLRA

The NLRA was passed and signed into law on July 5, 1935 by President Franklin D. Roosevelt. It makes clear that it is the policy of the United States to encourage collective bargaining by protecting full freedom of association. The law provides employees at private-sector workplaces with the fundamental right to seek better working conditions and designation of representation without fear of retaliation. The NLRA established the NLRB and created a framework to protect employee rights to organize, bargain collectively, and engage in other concerted activities, which the SpaceX workers contend includes the publication of the open letter.

NLRA Protections

The NLRA covers non-union employees as well as collectively bargained workers, although the provisions relating to organizing, collective bargaining, and representation mean less in a non-union workplace. SpaceX workers are not unionized. Elon Musk has expressed publicly his negative opinion of unions.

Many other federal statutes protect workers rights, including the Fair Labor Standards Act, which specifically addresses wage and hour issues; the Americans with Disabilities Act; the Age Discrimination in Employment Act; and Title VII of the Civil Rights Act of 1964 (Title VII).

Title VII Seems Particularly On Point

Title VII prohibits discrimination in employment based on race, color, religion, sex, and national origin. In 1986, the U.S. Supreme Court, in Meritor Savings Bank v. Vinson, held that workplace sexual harassment can constitute unlawful discrimination under Title VII to the extent it creates a workplace hostile environment. Title VII also protects employees from the kind of retaliatory firing that SpaceX employees suffered. Other activities that are protected under Title VII include discrimination, complaining about harassment, and participating in an investigation, whether as a formal charge, testimony, or informal complaint to Human Resources.

The Texas Workforce Commission (TWC) also handles complaints for violations of state and federal employment discrimination laws including Title VII by allowing an employee to file a charge with them (the TWC) instead of directly with the federal Equal Employment Opportunity Commission (EEOC).

Structural Similarities and a Shared Recent History

NLRA protections are implemented through the NLRB and administrative law judges who exercise quasi-judicial powers to resolve disputes. The employment protections of the Civil Rights Act are implemented through the EEOC and administrative law judges who function in ways that are generally like the NLRA administrative law judges.

In both cases, members are appointed by the President and subject to Senate confirmation for terms longer than a single presidential administration. Board members and Commissioners are intended to be free of political influence. Under the 1935 Supreme Court decision in Humphrey’s Executor v. U. S., as interpreted and expanded during the last 90 years, Congress can limit the President’s power to remove officials from independent administrative agencies, without “good cause.” The professional staff of both bodies develop specialized expertise in their relevant areas of law over long careers.

In January 2025, the president fired NLRB Member Gwynne Wilcox. On the same day, without allegations or evidence of good cause, the president fired two Democratic senate-confirmed EEOC Commissioners, Charlotte Burrows and Jocelyn Samuels. He also fired EEOC General Counsel Karla Gilbride, and NLRB General Counsel Jennifer Abruzzo. The conflict between Congress and the President is why the SpaceX case is headed to the Supreme Court. Wait a minute\! What about the SpaceX workers who were fired?

The Two Stories Meet

Without NLRB Member Wilcox, and without the two EEOC Commissioners, neither agency has the quorum necessary to exercise the full range of its power to protect employee rights. Both have been described as “hobbled” when it comes to processing complaints beyond the routine, preliminary stage. Some speculate that SpaceX and related lawsuits may be more about grinding the mechanisms of employment law enforcement to a halt. Some may say that this is more about a titanic power struggle between the branches of American government.

Kilgore & Kilgore Lawyers Defend Employee Rights

We live in interesting times and a changing legal landscape. If you believe that you, or someone you know and care about, is a victim of workplace discrimination, harassment or retaliation, we may be able to help. If you believe that your employment rights have been violated, take heart because you may have options under federal and Texas law. Reach out to us at contact Kilgore & Kilgore or (214) 969-9099. For more information, click this link Our Dallas Discrimination Lawyers Hold Employers Liable for Employee Rights Violations.

Parental Leave Texas: Good News and Bad News

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Congratulations! You are going to have a baby! At Kilgore & Kilgore, we could not be happier for you. It’s now a good idea to familiarize yourself with the parental leave rights available to you such as paid (or unpaid) parental leave, pregnancy accommodations in your workplace, and which Texas leave laws apply to your employer.

Did you tell the folks at work yet? What was their reaction? Did they give you genuine, positive feedback? Were they happy for you? If not, read on and prepare yourself with knowledge of Texas leave laws and the Texas Labor Code. These will help you understand the family leave policy of your employer and any leave entitlement that you may claim.

The hard truth is that neither federal nor Texas state law requires private employers to provide paid time off for new parents. Some employers offer it anyway. Notwithstanding, many workers are justifiably hesitant to ask about their options for fear of reprisal. Raising a baby from birth to age 17 in Texas is expensive. It cost as much as $300,000 in 2022, according to CBS News. For more than half of Texas families, it takes two incomes to raise a family.

Caring for Your Growing Family When You Have a Job

The good news is that both Texas and federal laws provide employment discrimination remedies for employees who are pregnant, temporarily disabled, or need time off to take care of family responsibilities. If you experience workplace discrimination, we can develop a strategy for you, because there are actions you can take to protect yourself from pregnancy discrimination or retaliation for taking leave under the family medical leave act.

Our Texas Employment Law Attorneys Can Help You Protect Your Family

We understand workplace discrimination in all its iterations. Our experienced employment law attorneys ensure that your rights and your family are protected. For an overview of our workplace discrimination practice, click Employment Retaliation. If you want to have a further conversation about your situation, you can call us (214) 969-9099.

Parental Leave in Texas: State and Local Governments Provide Paid Parental Leave

The State of Texas is among the largest employers in the state. Texas provides paid parental leave to workers at Texas state agencies and those in the executive and legislative branches of government. Effective September 2023, mothers may take up to eight weeks of paid leave, and fathers may take up to four weeks. Under the Texas Government Code, eligible employees of the Texas court system may take up to 40 days of paid leave for mothers and 20 days for fathers. Several city and county governments also provide for paid leave.

The Federal Government Provides Paid Parental Leave

The federal government employed roughly 116,000 Texans in 2022-2023. Most federal employees are covered by the Federal Employee Paid Leave Act of 2019 (FEPLA). In general, only those workers who have at least 12 months of service are eligible for paid leave. Eligible covered workers – both moms and dads – are entitled to up to 12 weeks of paid leave beginning after the birth or placement (for adoption or foster care) of a child. The leave may be taken in combination with job-protected unpaid leave under the Family Medical and Leave Act (FMLA).

Private Employers

Private sector leave policies present a more difficult situation. For those employees who have the opportunity to negotiate salary and benefits agreements, paid parental leave may be an issue to keep in mind. At Kilgore & Kilgore, we have worked with many executives to craft a package that works for both the employee and the employer. This is one of our major practice areas.

For everyone else, however, paid parental leave is largely a matter of employer policy. If you are thinking about the challenges of balancing work and family, a little research may pay off. Unlike Texas, at least 13 other states require some form of paid maternity or paternity leave. The same is true of other countries. According to the Pew Research Center’s 2019 survey, the U.S. was alone among 41 countries in providing no paid parental leave.

We are not suggesting that you move, but it may be worth looking at multistate or international businesses that must comply with the law of other jurisdictions in addition to Texas law. In some situations, it may also be possible to review a potential employer’s benefits policies in anticipation of a job offer. But even without paid parental leave, parents have important legal protection.

Family and Medical Leave Act (FMLA)

The FMLA provides job-protected leave for certain family and medical reasons. It applies to private-sector employers who employ 50 or more employees in 20 or more workweeks in either the current calendar year or previous calendar year. To be eligible, a worker must:

  • work for a covered employer for at least 12 months;
  • have at least 1,250 hours of service with the employer during the 12 months before their FMLA benefits start; and
  • work at a location where the employer has at least 50 employees within 75 miles.

Eligible workers of covered employers may take up to 12 work weeks of leave in a 12-month period for:

  • the birth of a child and to care for a newborn child within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition; or
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job.

Workplace Discrimination, Harassment, and Retaliation

Sadly, it happens, although anecdotal evidence suggests it is more common for women than men in the workplace. Consequently, many of the recent legal developments in workplace discrimination law come under the heading of sex-based workplace bias. But the legal principles are gender neutral. This is an area of the law we follow closely.

There are plenty of examples of sex-based workplace bias. Most employees and employers are familiar with stories about a worker who has never had a performance issue, who suddenly receives a negative review from the employer once a pregnancy becomes known. This is a pretext for pregnancy discrimination.

Our Employment Attorneys Help Pregnant Workers and New Mothers

If a female employee suspects that she is being pushed out the door in response to her pregnancy news, she is probably right. But there are things she can do under the law to protect herself. Below are some of the laws that protect parents who are also employees.

Title VII of the Civil Rights Act Protects Working Women

Title VII, as amended by the Pregnancy Workers Fairness Act (collectively Title VII) prohibits discrimination based on:

  • current, past, or potential pregnancy;
  • a medical condition related to pregnancy such as lactation or breastfeeding;
  • having or choosing not to have an abortion; and
  • contraception.

Texas Employment Rights – Pregnant Workers Fairness Act Protects Female Employees

This recently added statute requires a covered employer to provide reasonable accommodation for a worker’s known limitation related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an undue hardship. Such accommodation might include work that does not involve heavy lifting, allowing more frequent bathroom breaks, parking spots that are close to an entrance, and permitting a worker whose job involves standing to sit. Many of these protections are also incorporated into the Texas Commission on Human Rights Act (TCHRA).

Pregnancy Discrimination Act Protects Against Sex Discrimination

Passed in 1978, this act makes explicit that the term sex discrimination includes pregnancy discrimination. It protects workers from adverse employment decisions including hiring, firing, promotions, and overtime because of pregnancy. Provisions of the Texas Labor Code similarly protect pregnant workers from bias but do not require reasonable accommodation for pregnancy-related medical conditions.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

The PUMP Act provides legal protection to new mothers returning to the workplace. It amends the Fair Labor Standards Act (FLSA) to require that employers provide reasonable break times for workers to express breast milk for a full year after a child’s birth. The PUMP Act does not apply to employers with fewer than 50 employees if certain requirements under the law would cause undue hardship for the employer. Employers must provide a place, other than a bathroom, which is shielded from view and free from intrusion where a working mother can pump breast milk.

Kilgore Employment Lawyers May Be Able to Help Expectant Families With Workplace Issues

Expecting and new parents may have difficulty dealing with workplace cultures that have been slow to adapt to the economic realities of raising children. We know the law and may be able to help. Click here to get the conversation started contact Kilgore & Kilgore.

Recent Texas District Court Decision Challenges Prevailing Federal EEOC Guidelines on LGBTQ Employment Protections

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In May 2025, the U.S. District Court for the Northern District of Texas held that portions of the EEOC’s 2024 guidance on LGBTQ+ workplace protections exceeded the agency’s authority. The vacated portions of the Proposed Enforcement Guidance on Harassment in the Workplace (the “2024 Guidance”) deal primarily with the question of whether misgendering transsexual workers or denying them access to the bathroom that corresponds to their gender identities constitutes harassment on the basis of sex prohibited under Title VII.

It is not entirely clear what the significance is of this ruling. Does it apply only in the Northern District of Texas and nowhere else? Is it just about bathrooms? More importantly, what protections do employees have? What are employers supposed to do? Will this decision affect legal standards for discrimination? All of these and other questions that may come to mind are yet to be decided.

Kilgore & Kilgore Employment Lawyers Can Help with Discrimination Cases

We have closely followed the twists and turns of workplace issues and the laws that govern employment practices, including sex discrimination and sexual orientation discrimination, for years. Our website features many articles about workplace harassment, employment discrimination, and retaliation. For articles on our website specific to sex discrimination, see the last paragraph of this article.

Reach out to us If you believe that you are or were being harassed, suffered workplace discrimination, retaliation, or if you were fired because your sex or sexual orientation. Our Texas lawyers understand employment law. To contact us on our website, click here contact Kilgore & Kilgore. Or call us (214) 969-9099.

The Northern District’s Ruling Redefines LGBTQ+ Protections

The court concluded that the 2024 Guidance “contravenes Title VII’s plain text by expanding the scope of ‘sex’ beyond the biological binary.” It further determined that the guidance “contravenes Title VII by defining discriminatory harassment to include failure to accommodate a transgender employee’s bathroom, pronoun, and dress preferences.”

The court limited the Supreme Court’s decision in Bostock v. Clayton County to termination of employment, holding that only firing someone based on homosexuality or transgender status violated Title VII’s prohibition on sex discrimination. The Northern District opined that Title VII does not bar workplace employment policies that protect what the court sees as the inherent differences between men and women.

It should be noted that the Northern District’s ruling aligns closely with the President’s January 20, 2025, Executive Order “DEFENDING WOMEN FROM GENDER IDEOLOGY EXTREMISM AND RESTORING BIOLOGICAL TRUTH TO THE FEDERAL GOVERNMENT.” This Executive Order declares that: “Sex” shall refer to an individual’s immutable biological classification as either male or female. ‘Sex’ is not a synonym for and does not include the concept of ‘gender identity’.” However, defining the term “sex” for legal purposes is not ordinarily thought to be within the purview of the executive branch of government.

A Quick Recap of Title VII

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race, color, religion, sex, and national origin. In 1986, the U.S. Supreme Court, in a matter known as Meritor Savings Bank v. Vinson, held that workplace harassment can constitute unlawful discrimination under Title VII to the extent it creates a hostile work environment.

In Bostock, the Supreme Court included discrimination based on sexual orientation and gender identity within the definition of sex discrimination. However, as the Court wrote,

“Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.'”

The issue of whether denying an employee access to the preferred bathroom, misgendering the worker, or requiring a certain form of dress based on sex at birth, was simply left for another day. In the larger context of Title VII, the unanswered question might be understood as whether these forms of conduct amount to harassment that creates a hostile work environment.

The 2024 Guidance

In April 2024, the EEOC stepped up to address that question. The guidance is unequivocal:

  • Example 4 of the guidance makes it clear that refusing to use an employee’s preferred name or pronoun may constitute sexual harassment. (Note the use of the word “may.” Whether misgendering is sexual harassment that creates a hostile work environment and is therefore sex discrimination depends on the severity or frequency of the conduct, among other things.)
  • 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 identities.
  • The 2024 Guidance states that employers are prohibited from firing, refusing to hire, or taking assignments away from someone because customers or clients prefer to deal with an individual who has a different sexual orientation or gender identity.
  • Example 9 in the guidance 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.

The Northern District’s response is similarly unequivocal. It has taken on the 2024 Guidance directly.

The EEOC under the current administration has now also included commentary in the published version of the 2024 Guidance that notes: “This document was approved by the Commission on April 29, 2024, by a 3-2 vote. Any modification must be approved by a majority vote of the Commission. On May 15, 2025, a federal court declared unlawful and vacated portions of this document as contrary to law (citation omitted). The court’s vacatur of the unlawful portions applies nationwide, not just to the parties in the case.”

What All of This Means for LGBTQ+ Employment Protections

The Northern District Court did not issue an injunction that would prohibit the kind of employer conduct described in the examples. In any event, on June 27, in Trump v. CASA, the U.S. Supreme Court severely curtailed the use of nationwide injunctions as a policy-making tool. The 2024 Guidance, commentary aside, can be changed only by a vote of members of the EEOC, but the EEOC cannot act at present because it lacks a quorum. The President has not appointed new Commissioners.

Kilgore & Kilgore Has Answers to Your Questions About Workplace Discrimination

If you believe that your employment rights were violated because you are lesbian, bisexual, gay, transgender, or queer, take heart. Kilgore & Kilgore can help. to learn more about our employment rights practice, click this link Our Dallas Discrimination Lawyers Hold Employers Liable for Employee Rights Violations.

For additional information, see the following articles on the Kilgore website:

“Workplace Harassment and Discrimination are Illegal – Is it Legal to Fire LGBTQ People in Texas?“

“Supreme Court Rules That LGBTQ People Have Employment Protections Under Federal Title VII Law“

“New Federal EEOC Workplace Harassment Guidelines and Employer Liability.”

For an overview our employment law practice, click this link employment law.

Kilgore & Kilgore Client Is Awarded More than $225,000 in FMLA Lawsuit

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Kevin Martin was fired from his job at Penske Logistics on June 22, 2021. He was involved in a serious car accident on May 2, 2021, and was still suffering from acute back and neck pain. He was let go on the same day that he received notice that he had been approved for leave under the Family Medical Leave Act (FMLA).

Kevin Martin’s termination followed years of shabby treatment. He finally got the help he needed from W.D. Masterson, a Kilgore employee rights lawyer, who won this FMLA lawsuit on his behalf. In April 2025, the Northern District of Texas, Dallas Division, awarded Kevin Martin $226,351.85 plus pre-judgment and post-judgment interest. You might say this was not bad for a guy who used to load trucks.

Call Kilgore & Kilgore If You Have Questions About Workplace Discrimination Claims and Violations of the FMLA

Our employment law specialists understand the medical leave rights contained within the FMLA. Click this link to learn more about our Texas employment leave practice FMLA. To speak with a Texas employment lawyer, reach out to us online at Contact Kilgore & Kilgore or call us at (214) 969-9099.

Bad Boss Behavior and Workplace Discrimination Claims

Martin came to work for Penske in 2016, initially as a loader earning $24,802. In 2020, he earned $55,960, more than double his original salary. It looked like a success. But it was hard won. It came after many years of harsh treatment by his employer.

In 2017, Kevin Martin was asked to move from the day shift to the night shift to accommodate another employee. He was promised that he would be considered for a promotion to night shift supervisor, a raise and better benefits. For the next year, he worked as lead doing supervisor work but without supervisor pay. The promised promotion, pay and benefits never materialized. He was asked to cut his dreadlocks but declined to do so. In 2020, he was asked again to work the night shift, with the promise of a raise. He did and finally got the raise. During the first three years of his employment, he never received an annual evaluation.

In 2021, Kevin Martin was encouraged to apply for another supervisor position. He felt the interview went well and was told to expect another interview. It never happened. He never heard anything. Instead, at a regular weekly meeting, another worker, who he had trained, was introduced as the new supervisor.

Then Kevin Martin had a car accident, went to the emergency room, and was diagnosed with neck and back pain. Five days later, he received an angry phone call from Penske about missing work. He was told to come back to work and implicitly threatened with termination.

When he tried to return to work, Kevin Martin presented his ER records from the hospital and proof of the accident. Pain from his neck and back spasms ultimately affected his performance. On June 16, he was suspended because of days missed. Martin was fired six days later, over the phone, on the same day that he received his FMLA letter.

FMLA Lawsuit

Martin filed his FMLA lawsuit in March 2023. He alleged that Penske’s conduct violated the FMLA because the company did not allow him the necessary time to collect and present his FMLA letter. An FMLA letter is a document used to request and/or designate leave under the FMLA.

FMLA Workplace Leave Policies

The FMLA allows eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 weeks of leave in a 12-month period for:

  • the birth of a child and to care for the newborn within one year of birth;
  • the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • to care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job; or
  • any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

In addition, the law allows for 26 weeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin.

Most people’s imagination runs directly to the situation of a worker who needs to care for a sick or injured spouse, child (or a newborn) or parent. In fact, though, workers are also allowed to take the time they need to care for themselves.

Martin’s situation was straightforward. Apart from the shabby treatment and discriminatory termination, which suggests an inadequate HR function at his workplace, the violation of law is also about the speed with which he was fired (known as temporal proximity). Not every situation is this simple, which is why it is important to work with an experienced employment discrimination attorney who understands some of the subtleties and the great potential of FMLA lawsuits.

FMLA Nuances

The FMLA helps employees in a variety of ways. However, it is important to realize that not all employers are covered by the FMLA law, and not all employees of covered employers are protected. The law also specifies what kind of notice employers must receive of a worker’s intention to take FMLA leave.

Also, there are individual situations to be considered. Sometimes, an employee may not need 12 weeks away from work, but rather, a permanently reduced schedule. Intermittent leave may be appropriate and can often be combined with maternity or parental leave.

Our Employment Discrimination Attorneys May Be Able to Help with FMLA Puzzles

When it was enacted 30 years ago, the FMLA was hailed as a forward-looking way to address the substantial and growing needs of a changing workforce. It still is.

Regardless of the conundrums facing workers, our Texas employee rights attorneys may be able to help. Reach out to us for a free review of the facts of your employment challenges. Click here to get the conversation started contact Kilgore & Kilgore or call us at (214) 969-9099. We look forward to speaking with you.

A Texas Public Employee Who Suffered from Wrongful Termination Wins a Whistleblower Protection Lawsuit

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Eric Roberson, Kilgore & Kilgore Score a Win for Texas Whistleblower

On April 16, 2025, a Texas jury found that a former public employee was wrongfully terminated in violation of the Texas Whistleblower Act (TWA) for reporting what he believed to be criminal conduct on the part of the City of Celina’s Director of Human Resources. A Dallas County jury awarded him over $900,000, including $118,684 in lost wages in the past, $143,361 in lost employee benefits in the past, $302,428 in lost wages and benefits in the future, and $400,000 for mental anguish. Although there is a statutory cap on mental anguish damages based on the size of the employer, Plaintiff pleaded and argued that the cap is unconstitutional, and the Court has entered a judgment that does not cap damages.

It was a long, hard fight for Shea Scott, who not only lost his job, but risked his reputation and future job prospects to clear his name. Fortunately, he did not have to fight alone, thanks to the efforts of Kilgore attorneys Eric Roberson and Eli Padilla. The facts were complicated, lurid, and extremely sensitive. If you find yourself in a situation at work, do not risk it alone. Read this article to find out why you need experienced legal counsel from Kilgore & Kilgore.

Legal Representation for Whistleblowers

Reporting illegal activity involving a co-worker can cost you your job. There is also the potential of retaliation in the workplace. But, not reporting it can implicate you in the activity, which may be worse. It could be a no-win situation without whistleblower protection laws. Kilgore attorneys know how to prove workplace retaliation and the necessary steps to file a whistleblower complaint.

Whistleblower Protection in Texas

Several different state and federal laws protect whistleblowers in Texas. If you find yourself in a comparable situation, contact us for a confidential discussion. Click this link to get the conversation started Contact Kilgore Law or call us at 214-969-9099. For more information about whistleblower protection laws, click this link. To learn about Kilgore Law’s employment retaliation law practice, click this link Employment Retaliation.

Workplace Retaliation Case

The facts in Scott v. City of Celina are complicated. Shea Scott was the Celina Assistant Police Chief. He had been a Celina police officer since 2007 and served as Assistant Chief from 2017 until he was fired on October 5, 2020. Earlier in 2020, Scott received emails from Sam Jeter, the husband of Jennifer Jeter, who was the city’s Human Resources Director. The emails indicated that Jennifer Jeter had pointed a loaded gun at Mr. Jeter, thereby committing the crime of family violence. The email also contained pictures of her apparently possessing illegal drugs and drug paraphernalia.

Good Faith Reporting and Law Enforcement Reporting

Scott believed in good faith that the law required him to report allegations of family violence to a law enforcement agency. He drafted a criminal complaint, gave it to Detective Jeremiah Phillips in the Criminal Investigation Division, and instructed Phillips to file it with the proper law enforcement agency. Phillips determined the Jeter lived outside of Celina city limits in Denton County and thereafter filed the criminal complaint with the Denton County Sheriff’s Office. Scott also filed an internal complaint with the Celina Police Chief regarding Jennifer’s conduct.

The city hired outside counsel to investigate the allegations against Jennifer Jeter. After the investigation uncovered false information on her resume, Jennifer Jeter resigned in July 2020. Oddly, outside counsel then continued to investigate the police department, the Police Chief, and Scott.

According to testimony from the former Chief of Police, Jason Laumer, the City Manager, told the Chief of Police that the Police Department was not to investigate “my directors” and that Scott should not have violated the law and kept the allegations against Jennifer Jeter secret. Laumer expressly prohibited Scott and other members of the police department from reporting misconduct by any city employee at the director level or above without his approval.

In August 2020, the city hired an interim police chief and forced both Scott and the then current Chief of Police to either resign or be fired. According to the Police Chief’s testimony, when the Chief of Police asked why he would be fired, City Manager Laumer stated that he “would make something up.” The Chief of Police accepted the severance package, but Scott refused. Thereafter, the City Placed Scott on administrative leave. The city did not identify any violation or justification for the decision at that time. Scott’s request for immediate reinstatement was denied.

Instead of reinstatement, the new interim Police Chief drafted a list of grievances against Scott allegedly based on audits performed by an independent auditor and the Human Resources department. Scott was not given copies of these audits prior to his termination. He responded to the grievances and stated he believed they were in retaliation for reporting Jennifer’s alleged criminal conduct.

On October 5, 2020, Scott received written notice of his termination. He appealed it under the City’s grievance policy and participated in a grievance hearing. Scott received notice that his grievance was denied on the same day that he filed a lawsuit under the Texas Whistleblowers Act.

The Back Story – Cleaning House

Laumer was hired as City Manager in 2017. Court documents state that except for the police and fire chiefs, every department director who had been employed prior to Laumer’s appointment “had been replaced, forced to retire or forced to resign under pressure by Laumer.” Laumer, according to the City Charter, could not fire directors without City Council approval, which he never sought. He pushed them out in other ways.

Severance Package Refusal

Scott was the first employee to reject the customary six-month severance package offered to employees. He claimed he rejected the offer because he believed that he was asked to resign for his report of illegal activity of a city director. The City Manager placed a premium on the personal loyalty of department directors, and Jennifer Jeter had allegedly gloated that she was “going to get Shea Scott fired.”

Texas Whistleblower Act (TWA)

In Texas, public employees who make good faith reports of violations of law by their employers to law enforcement are protected by the TWA. Whistleblowers provide an important safeguard because they are often the first to know about corporate and government wrongdoing. Although there are also federal laws that apply more broadly, the TWA applies specifically to people employed by Texas local and state government entities. This includes employees of state education institutions, commissions, boards, law enforcement, bus drivers, and others.

Public Employee Rights – Whistleblower Protection

Whistleblowers must meet the specific requirements of the law – every “t” crossed and “I” dotted. To succeed, a Texas claimant must:

  • be a public employee; and
  • act in good faith when making the report.

The employee must show that:

  • the report was made to an appropriate law enforcement authority;
  • the reported action was unlawful; and
  • the employer must have taken what is legally defined as an adverse employment action against the whistleblower in response to the report.

To Win in Court, Texas Whistleblower Protection Lawsuits Require Experienced Legal Counsel

Some critics have suggested that the law provides disproportionate protection to employers. Whistleblowers must be prepared. If a whistleblower believes there is a good case, the whistleblower should be armed with good legal advice at the outset. These lawsuits can turn on subtle legal questions like:

  • What is good faith?
  • What is an appropriate law enforcement authority?
  • What is an adverse employment action?

Our Employment Lawyer Attorneys Will Guide You Through Your Whistleblower Lawsuit and Workplace Retaliation Claim

Contact us with your employment retaliation questions. Competent legal representation is necessary in these situations because adverse employment actions and workplace misconduct reporting must be documented and proven in court. Our employment law attorneys want to help you. Reach out to us. To get the conversation started, click here Contact Kilgore Law or call us at 214-969-9099.

Texas Legislature Considers Banning Reproductive Discrimination

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Texas Senate Bill 361, introduced in the Texas Senate in November 2024, would amend the Texas Labor Code to ban employment discrimination based on a worker’s reproductive decisions. The companion Texas House Bill is HB 302. By the end of February 2025, both were sent to committee. The legislative session ends in June 2025.

These measures address only issues of employment discrimination. But this topic, reproductive discrimination, runs headlong into the already overheated conversation about the near-total abortion ban in Texas. Nonetheless, efforts to protect family decision making from employment discrimination may not be as stalled as first appears.

New Texas Law Would Protect Reproductive Rights at Work

Whether either bill will or will not eventually become Texas law may be a theoretical question. But here are a few examples of employment terminations based on a worker’s reproductive decisions to consider:

  • Pregnancy in the Workplace – An Austin pub owner fired a bartender after her pregnancy became visible because of alleged fears for her safety, according to the employer who fired her. Her manager later told her that she was becoming “too much of a liability.”
  • Pregnancy – Shortly after a Texas business partner informed her new supervisor that she was pregnant, she was placed on a 30-day performance improvement plan and thereafter terminated. The employer cited issues involving work habits and time management. There was no mention of these performance issues before she disclosed her pregnancy.
  • Workplace Retaliation – In 2021, a company run by radio personality Dave Ramsey fired nine employees for having sex outside of marriage. They were fired, the company alleged, for violating the company’s “righteous living” policy.

Few employers are so careless or legally uninformed as to cite pregnancy, contraception, or “lifestyle” in decisions involving termination, promotion, a sudden change in duties, or availability of overtime.

Instead, reasons for termination may include a desire to protect women. Translated, this could illustrate an implicit fear that the company’s insurance premiums may increase. An employer may cite the violation of some other company policy. Perhaps more insidious is the creation of an exculpatory paper trail of performance issues after the decision to terminate a pregnant worker has been made.

Kilgore Law Attorneys Understand Texas Discrimination Laws and Employee Reproductive Rights

If any of these examples of employment discrimination in Texas sound familiar in your workplace, contact Kilgore & Kilgore. Our employment lawyers may be able to help. Call us at (214) 969-9099. Or visit our website Kilgore Law to send us a message.

Expanding the Definition of Employment Discrimination to Include Reproductive Decisions

Both measures considered by the Texas legislature amend the Texas Labor Code to expand employment discrimination protections by adding “reproductive decisions” as a protected category across multiple sections of existing law. The legislation prohibits employers, employment agencies, labor organizations, and other employment-related entities from discriminating against individuals because of their reproductive decisions.

The term “employment” covers actions such as hiring, firing, compensation, job assignments, and training opportunities. It includes job postings, test scoring, and staffing decisions. It extends these protections to employees at different locations and in various work settings.

Reproductive Discrimination Definition

The term “reproductive decision-making” includes:

  • the individual’s marital status at the time of pregnancy;
  • the use of assisted reproduction to become pregnant;
  • the use of contraception or a specific form of contraception; and
  • the obtainment or use of any other health care drug, device, or service relating to reproductive health.

Employee Handbook Requirements

In addition, the measures require employers to include information about reproductive discrimination decisions in employee handbooks. They also render mandatory arbitration agreements void if they attempt to limit the decisions of an employee or their family members.

Application of Reproductive Discrimination Law

Finally, the measures would apply to discrimination claims based on conduct occurring on or after the effective date of September 1, 2025, with a specific provision that the prohibition on restrictive arbitration agreements applies to agreements entered into before, on, or after that date.

Proponents argue that the bill is essential to ensure equal treatment in the workplace, particularly considering recent national discussions surrounding reproductive rights. Critics fear that the bills could lead to increased litigation and operational challenges for businesses.

Reproductive Rights in the Workplace

The measures also reflect a growing trend in state legislatures to address reproductive rights in the workplace. Other states across the country – including California, Delaware, Hawaii, Illinois, Iowa, Maine, Michigan, Missouri, New York, North Carolina, Ohio, Oklahoma, Virginia, Washington, Wisconsin and the District of Columbia – have already considered measures to protect employees from discrimination based on their reproductive health decisions.

Does Federal Law Already Cover the Protection of Reproductive Rights?

There is a compelling argument that much of it is. The federal statutes at issue are:

  • Title VII of the Civil Rights Act of 1964 (Title VII);
  • The Pregnant Workers Fairness Act (PWFA); and
  • The Americans with Disabilities Act (ADA).

Title VII of the Civil Rights Act

In brief, Title VII protections prohibit sex discrimination, including pregnancy discrimination. Pregnancy discrimination can be based on:

  • current, past, or potential pregnancy,
  • a medical condition related to pregnancy or childbirth,
  • having or choosing not to have an abortion, and
  • contraception.

The Pregnant Workers Fairness Act (PWFA)

The PWFA requires a covered employer to provide a reasonable accommodation to a worker’s known limitation related to pregnancy, childbirth, or related medical conditions. There is an exception for accommodations if it causes an employer undue hardship.

The Americans with Disabilities Act (ADA)

The ADA prohibits discrimination against an applicant or employee based on a disability, including a disability related to a pregnancy such as diabetes that develops during pregnancy. An employer may be required to provide that worker with a reasonable accommodation for pregnancy-related disability.

Kilgore & Kilgore Employment Lawyers Help Workers Fight Reproductive Discrimination

Do not give up, even if the measures designed to protect workers from reproductive discrimination do not pass during this legislative session. Every situation is different. Fighting workplace discrimination in Texas is what we do at Kilgore Law. For more information, visit our website Kilgore Law. Also, click on any of the following links to find specific information about these employment issues: Sexual Harassment, Pregnant Workers Protection Act and Employment Law.

Victims of Discrimination

Reach out to us if you have been the victim of discrimination, harassment, retaliation, wrongful termination, or other workplace equality issues. Call us at 214-969-9099 or click here to get the conversation started Kilgore Law. Fill out and submit the form on our website. Let us help you.

Court Defines the Difference Between Workplace Sexual Harassment and Sexual Assault

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In 2024, Kilgore & Kilgore lawyer, W. D. Masterson, argued for Cameron Sullivan in a workplace sexual assault lawsuit that involved unquestionably grotesque behavior by Sullivan’s supervisor, David Holloway. Holloway allegedly “walked up to Sullivan and groped his penis” during a meeting at which 15 or more other people were present.

The legal question before the Northern District of Texas court, however, was not whether Holloway’s behavior was outrageous. It was about whether the gravamen, or essence, of the lawsuit was sexual harassment or sexual assault. To us, the question of exactly which Texas law was broken may seem trivial. But it made a big difference for Sullivan in court.

On May 8, 2024, the District Court denied the employer’s motion to dismiss Sullivan’s assault claim, finding that, at its heart and for all the other things alleged, the lawsuit was about an assault. His assault claim, therefore, was not pre-empted by the Texas Commission on Human Rights Act (TCHRA). The distinction made a big difference in the remedy available to Sullivan, which could be financially significant.

The decision in this matter, known as Sullivan v. OTR Wheel Eng’g, is now cited for the legal principle that a single instance of unwanted touching cannot be brushed aside as workplace sexual harassment (for which the penalties may be small due to damages caps). It was assault, for which the civil penalties are not similarly limited, meaning that the penalties could be much higher. Sullivan v. OTR Wheel Eng’g is a prime example of why experienced lawyering is lawyering at its best. The employment lawyers at Kilgore & Kilgore know the law. Sometimes we even have the chance to shape it.

Employment Lawyers at Kilgore Law Defend Employee Rights Against Workplace Assault and Sexual Harassment

What happens in a hostile work setting can be confusing and humiliating. It is not what anyone expects when going to work. Employees in such situations second-guess themselves. Call us when you need help. We will help you sort out the details and consequences. If you are facing a hostile work environment, sexual harassment, sexual assault, supervisory misconduct, discrimination, or retaliation, reach out to us. We want to hear from you. Click this link Contact Kilgore & Kilgore. Or call us at (214) 969-9099.

After the Incident, Sullivan Made an HR Complaint

According to the Amended Complaint, Sullivan worked for OTR Wheel Engineering as a Wheel Technician. In the days following the public groping incident, he confided in coworkers, filed a police report, told a supervisor what happened, and discussed the incident with Human Resources. The Director of the Human Resources Department assigned someone to investigate his complaint. But then things took an odd turn. How HR handles assault claims is an important element in court decisions on workplace misconduct.

Court Decision on Workplace Misconduct and Workplace Assault

Human Resources waited four days before contacting Sullivan, who “felt like he was in a hostile environment.” At the conclusion of the investigation, Human Resources told Sullivan that they allegedly could not substantiate his claim. Those who witnessed the incident:

  • claimed to have been intimidated by Holloway; or
  • were never interviewed; or
  • never saw anything.

Sullivan was expected to continue to report to Holloway. He stopped reporting to work, and OTR Wheel terminated his employment. Sullivan then filed a lawsuit that included claims for discrimination, retaliation, harassment, and hostile work environment under the Texas Labor Code, specifically the TCHRA. He also made a claim for common law assault. OTR Wheel moved to dismiss the assault claim, which was potentially the most legally troublesome.

Was it Sexual Harassment or Sexual Assault?

The Northern District’s decision walks carefully through the nature of workplace sexual harassment. In general, sexual harassment is divided into two big categories – quid pro quo (“this for that”) harassment and hostile environment harassment.

The classic example of quid pro quo harassment – “If you have sex with me, I’ll give you a promotion” – is now rare. Enforcement and workplace sexual harassment vs assault training seems to have mostly worked with respect to this kind of workplace behavior. In its decision, the Court notes that Holloway did not offer Sullivan anything for sexual favors.

The hostile work environment issue is somewhat more complicated, particularly given the seemingly peculiar handling of the HR investigation. Nonetheless, the creation of a hostile work environment seems, by definition, to involve more than a single incident. As the Court notes in the decision, “There are no allegations regarding sexual comments or actions prior to the alleged assault, and Plaintiff does not allege any pattern of behavior.”

For these reasons, the decision finds that the gravamen of Sullivan’s lawsuit was the assault claim. Texas generally treats civil and criminal complaints of assault similarly, except for the fact that the former may lead to money damages, including compensatory and punitive damages. The latter points to criminal prosecution. Either form of assault requires intent on the part of the perpetrator and contact, or fear of unwelcome contact, that causes offense or harm to the victim. Clearly, Holloway intended to touch Sullivan who found the contact offensive or harmful.

Legally Speaking, Why it Matters that the Groping Incident was an Assault

The TCHRA generally follows Title VII of the federal Civil Right Act, including its provisions regarding workplace sexual harassment. There are, however, a few strange wrinkles.

The first of these, under the Texas Supreme Court’s decision in Waffle House v. Williams, “[w]here the gravamen of a plaintiff’s case is TCHRA-covered harassment, the [TCHRA] forecloses common- law theories predicated on the same underlying sexual-harassment facts.”

In Waffle House, the common-law theory at issue was negligence. In Sullivan, it is common law assault. The rule is the same. If the essence of a lawsuit is sexual harassment, a plaintiff may not bring an assault claim. It is either one or the other, not both.

The second of these is that the Texas legislature has chosen to limit the damages that a plaintiff may recover for sexual harassment. The key factor is the number of employees that an employer has. Under the Texas Labor Code, damages are limited to:

  • $50,000 in the case of a respondent that has fewer than 101 employees;
  • $100,000 in the case of a respondent that has more than 100 and fewer than 201 employees;
  • $200,000 in the case of a respondent that has more than 200 and fewer than 501 employees;

It continues, up to a maximum of $300,000 for employers with more than 500 employees. OTR Wheel Engineering appears to be a relatively small employer.

Cameron Sullivan lost a lot because of the groping incident. He was publicly humiliated by his supervisor, gaslighted by Human Resources, and ultimately forced out of his job. He has had to dance through a proverbial legal mine field to get to a situation where he could be justly compensated. Fortunately, he had help. And you will too when you contact Kilgore Law with your employment sexual harassment and sexual assault questions.

Kilgore Law Has Answers to Your Employment Questions About Workplace Harassment and Assault

Fortunately, our Texas employment lawyers may be able to help you. We have extensive experience with workplace misconduct, employee rights, and sexual harassment and assault claims. Contact us if you believe that you have been on the receiving end of workplace problems. Reach out to us for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you to discuss your claim. Or call us at (214) 969-9099.

Pension Risk Transfer Lawsuits – All the Makings of a Perfect Storm – DOL Fiduciary Rule Changes 2024

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Toward the end of 2024, an entirely new category of ERISA litigation began to take shape. These are known as pension risk transfer (PRT) lawsuits. They have all the makings of a looming legal storm. A big one. Among the players are:

  • Roughly half of all American adults who, by the end of 2024, held as much as $42 trillion in retirement accounts. They urgently need to know if their savings are safe;
  • Fiduciaries of retirement plans covered by the Employee Retirement Income Security Act (ERISA), who need to know the limits of their legal duty to participants when they transfer plan assets to insurance companies and other non-ERISA annuity providers;
  • Service providers, including those who manage asset transfers, who need clarity about whether the transfer makes them subject to strict legal requirements of ERISA compliance; and
  • The Fifth Circuit and its 2018 decision in Chamber of Commerce v. Department of Labor to vacate federal regulations about fiduciary duty. This has now been cast into high relief by the Supreme Court’s 2024 decision in Loper Bright Enterprises v. Raimondo.

Predicting the course of future litigation is a fool’s errand; history helps sometimes though. In any event, this looks like a combustible mix.

Kilgore & Kilgore Employment Lawyers Understand the Developing Areas of ERISA Litigation

ERISA sets out rules for pension plans, health and disability benefits. But it is a layered and complicated law that changes fast, but also draws from centuries-old principles. To find the answers to your questions about ERISA litigation, you need a lawyer with a wide range of knowledge and experience. Please visit our ERISA and Disability page. For a free review of the facts of your case, reach out by clicking here and sending a contact request to our website Kilgore & Kilgore.

ERISA Guidance – the First Ten Years – To Promote the Interests of Employees and Their Beneficiaries

To quote the Fifth Circuit’s Chamber of Commerce decision, “Congress passed ERISA in 1974 as ‘a comprehensive statute designed to promote the interests of employees and their beneficiaries in employee benefit plans.'” The intended beneficiaries were workers and their families, and only them.

ERISA does this in a variety of ways – including by importing certain ancient trust law principles into the law to ensure that retirement savings were strictly preserved for the use of the intended beneficiaries. Under Section 404 of ERISA, plan fiduciaries are required to act prudently and to diversify the plan’s investments to minimize the risk of large losses. In addition, they must avoid conflicts of interest, including transactions on behalf of the plan that benefit parties related to it, such as other fiduciaries, service providers, or the plan sponsor.

ERISA fiduciary duty requirements – An ERISA fiduciary’s duty of loyalty to the plan participants is often described as the highest standard of care.

Originally, most pension plans promised lifetime annuities to named beneficiaries beginning at normal retirement age. Workers often had long careers and did not become fully entitled (or vested) in their benefits for as long as ten years. The trust fund that held the money was managed by professional investment managers. The world of work was less volatile, and fiduciary regulation was straightforward.

Building Complexity, Crumbling Certainty – 1985-2000

Beginning in about 1985, however, retirement benefit plans began to diversify. Increasingly, participants began to manage their own retirement saving with the help of outside investment management – think of self-directed 401(k) plans, which are now the rule rather than the exception. Other options emerged as well. Some employers terminated their defined benefit plans and eventually annuitized benefits by moving plan assets to insurance companies.

Much of this diversification involved shifting risk away from the plan sponsor and moving retirement savings outside the plan. Questions began to emerge about the standard of loyalty and care that applied to the management of funds that had slipped beyond the immediate control of the named fiduciaries.

In 1995, the Department of Labor issued an Interpretive Bulletin to address this issue, known as IB 95-1. IB 95-1 generally recognizes that when a pension plan purchases an annuity from an insurer as a distribution of benefits, the plan’s liability for the benefits moves to the annuity provider. No longer covered by ERISA, the participant is protected primarily by state insurance law. The plan fiduciaries have discharged their fiduciary duty of loyalty if they have acted prudently. Prudence is defined as a matter of picking the safest possible annuity.

Recent Pension Risk Transfer (PRT) lawsuits rely heavily on IB 95-1, with plaintiffs alleging that plan fiduciaries, for reasons that would constitute a conflict of interest (including cost), failed to choose the safest possible annuity. Many of these lawsuits focus on contracts issued by Athene Annuity and Life Co.

The Fifth Circuit Vacates the Fiduciary Rule

The Fifth Circuit has long regarded IB 95-1 with skepticism, largely because the DOL’s guidance is only an agency interpretation that is not part of ERISA. In 2016, the DOL promulgated related guidance, a package of seven different rules, known as the “Fiduciary Rule” that reinterpret the term “investment advice fiduciary.” The stated purpose of the new guidance was to regulate hundreds of thousands of financial service providers and insurance companies in the trillion-dollar markets for ERISA plans and individual retirement accounts. In Chamber of Commerce, three business groups challenged the Fiduciary Rule as regulatory overreach not justified by the language of ERISA. In 2018, the Fifth Circuit vacated the Fiduciary Rule.

DOL Tries Again to Provide Greater Protection for Retirees – DOL Fiduciary Rule Changes

In early 2024, the DOL released its new fiduciary investment advice definition. The Retirement Security Rule: Definition of an Investment Advice Fiduciary, also known as the “2024 Fiduciary Rule,” would make more service providers investment advice fiduciaries, and thus subject to the conflict-of-interest rules under ERISA. This would provide greater protection for retirement accounts. The 2024 Fiduciary Rule is the subject of two lawsuits in Texas district court, and its effective date was recently stayed by both courts.

In one of the cases, Fed. of Am. for Consumer Choice, Inc. v. Dep’t of Labor, the Eastern District of Texas cites to Loper Bright in support of its conclusion that it owes “no deference to the DOL’s interpretation of ERISA.” The sides are clearly squaring off for a fight. What happens now is anyone’s guess. But it is safe to assume that something will.

Kilgore & Kilgore ERISA Lawyers May Guide You through the ERISA Compliance Lawsuit Maze

Please visit us at our ERISA Disability Claims page to learn more about how Kilgore Lawyers are working to guide clients through the ERISA maze. Please click this link to our website, fill out and submit a request for a free consultation Kilgore & Kilgore.

Is the Boss Tracking You With Biometric Workplace Wearable Monitoring Technology?

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Creepy. Big Brother. That is how many people react to the thought of an employer requiring an employee to wear smart workplace technology capable of biometric data collection. Say what? Think of a next gen fitness tracker that collects physical information about employees. These employee biosensors collect data such as heart rate, eye movements, temperature, location, and electrical activity of the brain, whether it is related to job performance or not. Those are the printable remarks.

In truth, this kind of employee monitoring has been around for years, especially in industrial settings. The National Labor Relations Board raised an alarm in 2022 in its GC Memo 23-02. The fear was that biometric data collection could be used to thwart union organizing. Texas has had a law in effect since 2017 to protect consumers from invasive data collection, but does it apply to the workplace? Can employers require wearable devices?

Workplace Wearable Technology Laws

In December 2024, the EEOC issued new guidance to employers about what data an employer may lawfully collect. The central caution of this guidance called “Wearables in the Workplace: Using Wearable Technologies Under Federal Employment Discrimination Laws” is that the collected data must be job related and consistent with business necessity. The second most important idea is that the information collected about employees must be securely maintained. Finally, employee consent alone does not justify the collection and use of the data.

Workplace Monitoring Claims – Kilgore & Kilgore Employment Lawyers Provide Guidance on Legal Interpretations

If nothing else, the growth of big tech has taught us that data is king. Big data, especially. As the law has developed, our employment lawyers have been helping workers protect themselves against workplace surveillance and employee monitoring. For information about our employment law practice, click Employment Lawyers. Or call us at (214) 969-9099. You can also reach out to us online. Just click this link Contact Kilgore Law to get the conversation started.

Workplace Wearable Technology Laws: Worker Surveillance and Smart Workplace Technology

The new EEOC fact sheet does not define “workplace wearable technology” or “wearables.” Instead, it refers to digital monitoring devices embedded with sensors and worn on the body that may keep track of bodily movements, biometric data collection, and/or track location.

These might include smart watches or smart rings that track workers’ activities and monitor their physical and mental condition in the workplace, or other devices such as:

  • Environmental or proximity sensors that warn wearers of nearby hazards;
  • Smart glasses and smart helmets that can measure electrical activity of the brain (electroencephalogram (EEG) testing);
  • Emotion detectors;
  • Exoskeletons and other aids that provide physical support and reduce fatigue;
  • Global Positioning System (GPS) devices that track location; and
  • Various other devices.

Workplace Wearable Monitoring and Workplace Wearable Technology

In 2022, about 21 percent of Americans chose to use wearable devices to track health and fitness goals. These are even more popular now. But when employers require workers to wear biometric monitoring devices, the situation is different. These devices are required by some sectors such as:

  • Manufacturing, construction, and healthcare employers, to monitor safety, fatigue, and/or exposure to hazardous conditions;
  • Retail and service industries, to track productivity, health metrics, or stress levels to optimize workplace performance;
  • Corporate sectors, which may use workplace productivity tools, employee health monitoring, employee stress monitoring, and workplace safety tracking, to improve performance;
  • Tech and innovation companies to maximize workplace integration; and
  • Fitness and health-focused employers to track activity levels, sleep, or overall health to promote of wellness programs.

Here is where issues arise regarding workplace privacy rights, workplace discrimination, and employee consent requirements. An employer may run afoul of nondiscrimination laws if, for example:

  • When health information is used to infer an employee is pregnant and then fires her or puts her on unpaid leave unprompted;
  • When data from wearable technology produces less accurate results for people with darker skin, it leads to adverse employment decisions against those workers because of that data;
  • When an employee goes on a break to take a loved one to a health center and receives an inquiry about the purpose of the visit, which could elicit genetic information in violation of the Genetic Information Nondiscrimination Act; or
  • When employees of a specific race or ethnicity are required to use wearables to collect health information while other employees are not.

Workplace Surveillance – EEOC Guidance Wearables – Biometric Data Collection

The EEOC warns that any wearable that collects information about an employee’s medical status (such as blood pressure monitors) may run afoul of the Americans with Disabilities Act (ADA). The EEOC has noted that requiring these wearables could be classified as conducting “medical examinations” or making “disability-related inquiries.” Under the ADA, medical examinations and disability-related inquiries are permitted only if related to the specific job of the employee, and the exam/inquiry is consistent with a business necessity.

When an employer terminates an employee or takes another adverse action against him or her based on inaccurate productivity data, it may be a violation of Title VII of the Civil Rights Act of 1964.

Further, workers must be fully informed about what data is collected, how it will be used, and who will have access. Unless an employee’s consent is demonstrably fully informed and voluntary, it may not permit biometric data collection.

Under the ADA, employers must securely store and treat health and disability-related information confidentially. Employers must also offer accommodations under the ADA and Title VII, such as alternative monitoring methods for employees who cannot or do not want to use wearables due to religious beliefs, disabilities, or pregnancy-related conditions.

Kilgore & Kilgore Employment Lawyers May Be Able to Help You with Workplace Wearable Monitoring Technology Discrimination Claims

The new EEOC guidance imposes significant new restrictions on employers. If you believe that your employer is collecting or has used biometric information against you in a way that is forbidden by law, reach out to us. Click Kilgore Law to contact us.