Non-subscriber Insurance Claims for Workplace Injuries

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Are you seeking compensation from your employer for an on the job injury? Has your employer not opted in to the Texas workers’ compensation insurance system? Many private employers do not opt in to the Texas workers’ compensation insurance system. If your employer did not opt in, your employer is called a non-subscriber. A claim for compensation against a non-subscriber may be asserted in arbitration or in court through a formal lawsuit. A claim for compensation through the Texas workers’ compensation insurance system is processed differently. The difference between them is significant for an employee who suffers an on the job injury.

Before You Make a Workers’ Compensation Insurance Claim, Determine Which Type of Insurance Program Your Employer Has

All employers must place a notice in the workplace that informs workers whether the employer has workers’ compensation insurance coverage or not. If the employer does not have workers’ compensation insurance coverage, that employer is a non-subscriber, and the posted notice must reflect that status. If you have suffered an on the job injury, the first thing you should do is learn which type of insurance program your employer has.

Kilgore & Kilgore Has Experience with Non-subscriber on the Job Injury Insurance Claims

If you wish to assert a claim for your workplace injury against a non-subscriber, click here to learn more about Kilgore & Kilgore’s employee benefits claims practice. We offer a free review of the facts of your case. Our employee benefits attorneys represent workers who have sustained workplace injuries at non-subscriber companies. We can help employees seek money for disability income, medical bills, pain and suffering, and other damages.

Texas Workers’ Compensation Insurance History

Before the enactment of the Texas Workers’ Compensation Act of 1993 (the Act), codified in Sections 401.001 et seq. of the Texas Labor Code, employees who sustained workplace injuries routinely asserted common law negligence claims against their employers in court. However, many businesses lobbied the Texas legislature to create an administrative workers’ compensation insurance system that would prevent workers from bringing their claims in court. Thus, the Act was passed to remove claims for workplace injuries from juries. The Act also limits the liability of employers and provides employers greater certainty and predictability in the disposition of workers’ claims. The Texas workers’ compensation insurance system is regulated through the Texas Department of Insurance. It was designed as an insurance program that would provide certain disability income, medical, and other benefits to injured workers regardless of a party’s fault or negligence.

Insurance Claims under Texas Worker’s Compensation Insurance

If an employer opts in to the Texas workers’ compensation insurance system, the employer pays regular insurance premiums for workers’ compensation insurance coverage. If an employer has workers’ compensation insurance coverage, an injured worker can potentially recover certain disability income, medical, and other benefits as set by state law. But in general the injured worker is unable to bring a lawsuit for damages against the employer.

Insurance Claims against Employers with Private Insurance Are Handled Differently

Some private businesses, however, do not want to participate in the Texas workers’ compensation insurance system for a variety of reasons. Instead, these businesses elect to opt out of the system, as permitted by Texas law. These employers are non-subscribers. A non-subscriber’s injured worker can file a claim for common law negligence in court or in arbitration to seek damages, including punitive damages, from a jury or arbitration panel. If the injured worker prevails in court or arbitration, then the damages awarded by a jury or arbitration panel could potentially be much greater than the disability income, medical, or other benefits recoverable under the workers’ compensation insurance system.

Good News and Bad News for Insurance Claims against Non-Subscribers

According to Section 406.033(a)(1)-(3) of the Texas Labor Code, a non-subscriber forfeits three important defenses. First, a non-subscriber is unable to assert the defense that the worker’s negligence contributed to the on the job injury. Second, a non-subscriber cannot argue that the worker voluntarily assumed the risk of injury or death by working in a place known to be hazardous. Third, a non-subscriber cannot rely on the defense that the worker’s injury or death was caused by the negligence of a fellow worker. The unavailability of these three important defenses to a non-subscriber can potentially make defending the case more challenging. But, it provides an advantage to the injured worker depending on the facts of each specific case.

However, even though a non-subscriber is not permitted to assert these three defenses, an injured worker will still have to prove each element of his negligence claim. The injured worker must prove that the employer owed a particular duty to him, that the employer breached that duty, and that the employer’s breach of that duty was the proximate cause of the workplace injuries.

If you have suffered an on the job injury, and your employer is a non-subscriber, then you should contact the lawyers at Kilgore & Kilgore so that we can assess your particular situation. To get started, click here Contact Kilgore & Kilgore. We offer a free evaluation of the facts of your case.

Texas Legislature Bills to Expand Law Regarding Discrimination

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If the employment discrimination bills recently introduced in the Texas Legislature become law, Texas workers will gain important, additional protections and rights under state law. LGBT employees in Texas will gain significant new protections against discrimination from employers, state contractors, and agencies. In addition, Texas employees will have new causes of action for sex discrimination in pay rates and employer inquiries into the wage history of a job applicant. However, it is unlikely that the bills will become law.

Our Employment Lawyers Help Clients Who Have Experienced Discrimination

The employment lawyers at Kilgore & Kilgore have experience in counseling employees under state and federal employment discrimination laws, and litigating discrimination claims against employers on their behalf. If you believe that you have experienced discrimination or retaliation by an employer, click here Contact Employment Lawyer to connect with Kilgore & Kilgore for a free review of the facts of you case.

In the current regular session of the Texas Legislature, bills have been filed that would amend Texas employment and agency contracting laws to provide protections based on a person’s “sexual orientation” or “gender identity or “expression.” In addition, a bill has been filed that would prohibit sex discrimination in compensation. None of these bills, however, are likely to pass the Republican-controlled legislature or be signed into law by Governor Greg Abbott.

Employment Discrimination is Prohibited in Texas

The general employment discrimination law in Texas, under Texas employment law, prohibits discrimination. This includes discrimination because of an individual’s race, color, disability, religion, sex, national origin, or age. However, this provision does not currently protect against discrimination based on a person’s sexual orientation, gender identity or expression. State Representative Eric Johnson (D-Dallas) has filed a bill, known as H.B. No. 225, that would amend said code to make it illegal for an employer, agency, labor organization, or joint labor-management committee to discriminate because of a person’s sexual orientation or gender identity or expression.

Many States Have Labor Laws that Prohibit Discrimination

If the bill by Rep. Eric Johnson becomes law, Texas would join 20 other states, plus the District of Columbia, in making it illegal for an employer to discriminate because of sexual orientation and gender identity or expression. Under this bill from Eric Johnson, lesbian, gay, bisexual, and transgender, that is, LGBT employees, in Texas would gain significant new protections against discrimination in the workplace.

You may have a discrimination claim under either existing or proposed Texas labor law. If so, you must file a complaint with the Texas Workforce Commission (TWC) not later than 180 days after the date of the unlawful employment discrimination in order to later file suit in state court (the deadline is 300 days for discrimination claims under Title VII to be filed in federal court). If enacted, this bill by Rep. Eric Johnson would take effect on September 1, 2017. Depending upon the facts of your case, Kilgore & Kilgore can represent you at any time during the process of your discrimination claim with the TWC.

A similar bill, known as H.B. No. 876 was filed by Rep. Chris Turner Texas (D-Arlington and Grand Prairie). It would prohibit discrimination by state contractors based on sexual orientation or gender identity or expression. This would add a new Section 2155.0065 to the Texas Government Code. Both bills have the same “sexual orientation” and “gender identity or expression” definitions. The bill by Rep. Chris Turner Texas would impose an administrative penalty of $100 per day for each employee or job applicant who is discriminated against by a state contractor because of sexual orientation or gender identity or expression. If enacted, the bill by Rep. Chris Turner Texas would take effect on September 1, 2017.

There is another bill introduced by Rep. Rafael Anchia (D-Dallas). This one would prohibit a state agency from accepting a bid, or awarding a contract to a person who resides or conducts business in, a state with any law allowing discrimination based on “sexual orientation or gender identity or expression.” The bill by Rep. Rafael Anchia, known as H.B. No. 258, would add a new Section 2155.008 to the Texas Government Code. It would require a vendor to certify that he or it is not ineligible to receive the specified contract. If a state agency later determines that the vendor was ineligible to receive the contract, that agency may immediately terminate the contract without obligation to the vendor. If enacted, the bill by Rep. Rafael Anchia would take effect on September 1, 2017.

Potential Texas State Version of the Federal Equal Pay Act

Texas law does not have an equivalent to the federal Equal Pay Act, which specifically prohibits sex-based wage discrimination. Rep. Eric Johnson has filed another bill, known as H.B. No. 290, that would create a robust state version of the Equal Pay Act and bolster the claims that a person could assert for sex-based wage discrimination. This bill by Rep. Eric Johnson would add a new Chapter 24, called Employment Discrimination Regarding Compensation, to the Texas labor law. The bill by Rep. Eric Johnson specifically prohibits sex discrimination in the payment of wages. This is slightly more favorable to employees than the federal Equal Pay Act.

The bill by Rep. Eric Johnson would also prohibit employers from inquiring about or considering a job applicant’s wage history information. Furthermore, that bill would prohibit retaliation by employers against anyone who asserts her rights under the new law. The bill would require employers to post a specific notice in the workplace regarding the new law. Employers would also be required to maintain particular wage records for their employees.

Sex Discrimination in Wages Already Prohibited in Texas

Sex discrimination in the payment of wages is already unlawful under Texas labor law. But the bill by Rep. Eric Johnson would provide Texas workers with an additional, and more comprehensive, statutory claim for sex discrimination in compensation. If a person had such a claim under the bill by Rep. Eric Johnson, s/he would initially have to file a complaint with the TWC not later than 180 days after the date of the unlawful discrimination. Depending upon the facts of your case, Kilgore & Kilgore can represent you at any time during the process of your discrimination claim with the TWC. If enacted, the bill by Rep. Eric Johnson would take effect on January 1, 2018.

Kilgore & Kilgore Attorneys May be Able to Help You with a Discrimination Claim

The attorneys at our firm have experience with discrimination and fair wage claims. We understand employee rights laws. We have helped clients make their claims and have guided clients through the process. Click here to review testimonials received from clients we helped Employment Discrimination Client Statements. If you have a discrimination claim or wage claim, contact us to see if we can help. We offer a free review of the facts of your case. Click here to get started Contact Us.

Employee Rights Are Violated by Employers Who Punish Workers for Pay Discussions in the Workplace

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Does your employer prohibit you from discussing your pay with a co-worker? Has your supervisor ever told you not to discuss your pay with your co-workers? If so, your employer’s pay secrecy policy may be violating the law.

Pay secrecy policies in the workplace are generally prohibited by the National Labor Relations Act (NLRA), which was passed in 1935 under President Franklin D. Roosevelt. Many employers and employees are unaware that pay secrecy policies are generally unlawful even though such policies are quite common in the workplace. Generally, it is illegal for an employer to wrongfully discharge or retaliate against an employee for discussing his or her pay with a co-worker.

We Defend Workers Whose Employee Rights Have Been Violated

The employment lawyers at Kilgore & Kilgore represent employees who have been wrongfully terminated or who have suffered retaliation in the workplace. If you believe your employee rights have been violated, and wish to know more about our employment law practice, click here Employment Retaliation to learn more about the laws governing employee rights. To connect with an employment lawyer for a free review of the facts of your case, click here Contact Kilgore & Kilgore.

The NLRA Protects Employee Rights

Section 7 (29 U.S.C. § 157) of the NLRA gives employees the right to “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” This section gives employees the right to discuss with each other the terms and conditions of their employment when they are trying to improve those terms and conditions. Section 8 of the same statute prohibits employers from interfering with employee rights under Section 7.

Based on Sections 7 and 8, both the National Labor Relations Board (NLRB) and courts have held that it is unlawful for an employer to forbid its employees from discussing their pay and benefits with each other. Sections 7 and 8 of the NLRA apply to both union and non-union employees.

Some states, but not Texas, have their own laws that prohibit pay secrecy policies and provide protection to employees.

The protections of Sections 7 and 8 of the NLRA are not without some exceptions, however. Supervisors of employees, for example, are not shielded from pay secrecy policies. Certain employees, such as human resources or payroll managers, have access to employee pay information in the normal course of their jobs. They probably would not be permitted to discuss pay and benefits with employees. Furthermore, the NLRA does not cover employees who are employed by federal, state, or local governments and some other particular kinds of employees.

President Barack Obama Protected Employee Rights

Two executive actions taken by President Barack Obama in 2014 affecting federal contractors are consistent with bolstering pay transparency and the principle of equal pay for equal work. One action was the signing of an executive order that prohibits federal contractors from retaliation against employees who discuss pay information with each other. The other action was the issuance of a presidential memorandum that requires federal contractors to disclose to the NLRB certain employee compensation information, including by race and sex.

When Employee Rights Are Violated, the NLRB Can Help

If an employee is wrongfully discharged or experiences retaliation by an employer for discussing pay information, the employee can file a charge with the NLRB. The NLRB investigates charges and enforces the provisions of the NLRA. If the NLRB finds that the law has been violated, it can order an employer to provide back pay or reinstate the aggrieved employee.

Pay transparency promotes equality in the workplace and the goal of achieving equal pay for equal work. Employees have the right under the NLRA to discuss their pay and benefits with each other in order to improve their working conditions and to achieve pay equity. If you believe that your employee rights under the NLRA have been violated, click here Contact Kilgore & Kilgore to connect with an employment attorney at Kilgore & Kilgore for a free review of the facts of your case.

Wells Fargo Bank Shines Spotlight on FINRA Form U-5 Abuses

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The ongoing scandal involving Wells Fargo Bank demonstrates that although the wheels of justice often turn slowly for security industry employees, they can in fact turn. It also shows that the Financial Industry Regulatory Authority (FINRA) has FINRA Form U-5 abuses firmly on its radar. That is good news for security industry employees who have been damaged by an employer that filed false and defamatory information on a FINRA Form U-5 report when they were terminated.

If you work in the securities industry and believe your former employer included false and defamatory information on your FINRA Form U-5, you should contact us. Kilgore & Kilgore has been successful in getting the defamation expunged from a FINRA Form U-5 and in recovering compensatory damages from the employer on behalf of our clients. Click here to connect with a Kilgore & Kilgore attorney for a free evaluation of the facts of your case: Contact Kilgore & Kilgore.

Consumer Financial Protection Bureau Fines Wells Fargo Bank

Over the last several months, the Wells Fargo Bank scandal has produced an alternating series of revelations and investigations. In September 2016, the Consumer Financial Protection Bureau (CFPB) fined Wells Fargo Bank $185 million. The CFPB alleged that Wells Fargo Bank employees created more than 2 million bank accounts or credit card applications without their customers’ knowledge or permission. Wells Fargo Bank staff was reportedly motivated to open these fake bank accounts by pressure from supervisors to meet corporate goals and obtain incentive compensation rewards.

Wells Fargo Bank Reports Fired Employees on FINRA Form U-5

Wells Fargo Bank said it fired about 5,300 retail banking employees since 2011 for creating the fake bank accounts and applications. Approximately 600 of the fired employees were registered with FINRA. Wells Fargo Bank was required to file a FINRA Form U-5 within 30 days of firing the wrongfully terminated FINRA-registered employees. The FINRA Form U-5 must include details regarding the reasons the employee was fired. Of those 600 FINRA-registered employees that were fired, at least 207 were reportedly terminated for issues related to the fake bank accounts scandal. Each received negative comments from Wells Fargo Bank on his or her FINRA Form U-5 report that could be construed as defamation.

Terminated Employees Claim Defamation by Wells Fargo Bank in their FINRA Form U-5 Reports

In October, NPR reported that some Wells Fargo Bank employees said they were fired for trying to blow the whistle on the fake bank accounts scandal. The interviewed employees said they were fired or pushed to resign after resisting pressure to sell unwanted products to customers and for reporting unethical practices. The employees said that after they blew the whistle and refused to sell unwanted products, Wells Fargo Bank wrote false and defamatory information on their FINRA Form U-5s. As a result, they were not able to find new jobs in the securities industry. According to the New York Times, Wells Fargo Bank allegedly wielded the FINRA Form U-5 as a weapon “with little regard for the damage that inaccurate or imprecise allegations could inflict on people’s careers.”

Negative FINRA Form U-5 Reports Make It Almost Impossible to Get a New Job in the Securities Industry

FINRA allows the public to access the FINRA Form U-5 information about securities industry employees. The goal of the FINRA Form U-4 and FINRA Form U-5 system is to hold financial advisers, brokers and bankers who sell securities accountable for wrongdoing. However, negative information on a FINRA Form U-5 makes it difficult, if not impossible, for a securities industry professional to get a new job in the securities industry.

Please refer to our previous blog post titled “Compensatory Damages from FINRA Form U-5 Defamation Claims” by clicking here Previous FINRA Post. Kilgore & Kilgore’s FINRA attorneys assist clients through the FINRA arbitration process. We have been able to get false and defamatory information expunged from a FINRA Form U-5. Our employment lawyers Dallas have also been successful in helping employees file claims against their former employers for defamation and wrongful termination.

Going through the FINRA arbitration process to expunge false and defamatory information on a FINRA Form U-5 involves a different process from other employment claims of this nature. Our attorneys can successfully handle the complexities of the FINRA arbitration process.

U.S. Senators Highlight Potential Wells Fargo Bank FINRA Form U-5 Abuse

Once NPR reported that Wells Fargo Bank had allegedly used the FINRA Form U-5 reports to silence or retaliate against employees, the U.S. Congress took note. In November, the Senate Banking Committee openly questioned if Wells Fargo Bank used unfavorable FINRA Form U-5 filings as a means of retaliating against employees who attempted to blow the whistle on the fake bank accounts problem.

“These accounts raise questions about the accuracy of Wells Fargo’s form U-5s for employees who were fired for engaging in illegal activity and for employees who appear to have been fired for blowing the whistle on illegal activity at Wells Fargo,” the senators wrote.

FINRA Investigates Potential Wells Fargo Bank FINRA Form U-5 Abuse

In December, it was reported that FINRA was asking former Wells Fargo Bank employees to contact FINRA if they have issues regarding the reasons they were fired. FINRA had also announced that it planned to look into the FINRA Form U-5 filings regarding the 207 former Wells Fargo Bank employees that are FINRA-registered.

“Recent news reports have highlighted several former Wells Fargo Bank employees who believe that they were terminated from the bank for reporting or refusing to engage in allegedly fraudulent account-opening activities,” FINRA explained in a press release.

“Further, the reports indicate that a subset of these individuals who were also registered with FINRA to conduct securities activities have raised concerns that they did not receive a copy of their Form U-5 termination notice within 30 days of being terminated as required … or that their Form U-5 contained inaccurate or incomplete comments related to the reason for the termination,” it said.

FINRA said it wants to “review the facts and circumstances surrounding these allegations.”

This scandal at a high profile company such as Wells Fargo Bank focuses attention on FINRA. Congress is taking potential false and defamatory information on the FINRA Form U-5 statements seriously. If you think a previous employer included false and defamatory information on your FINRA Form U-5, contact an experienced Kilgore & Kilgore FINRA attorney.

Kilgore & Kilgore Attorneys Have Won Compensatory Damages in FINRA Form U-5 Cases

In FINRA arbitration proceedings, compensatory damage awards have been won by Kilgore & Kilgore attorneys. False and defamatory information has been expunged from FINRA Form U-5. To obtain such an award is a complex legal process involving FINRA rules and procedures plus state defamation law. Kilgore & Kilgore can provide the legal experience needed. To learn more about our securities industry and FINRA law practice, click here: Dallas FINRA Attorney. To get started on a free review of the facts of your case, click here: Contact Kilgore & Kilgore.

Arbitration Provisions Involved in Wells Fargo Bank Case

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Dozens of bank customers have brought the first class action lawsuit against Wells Fargo Bank as a result of its fraud and sham accounts fiasco. To be tried in Utah, the case is one to follow, Mitchell et al. v. Wells Fargo Bank et al. In the Mitchell case, Wells Fargo Bank customers have asserted claims against Wells Fargo Bank stemming from the opening of unauthorized customer deposit and credit-card accounts. Outside of the Mitchell case, Wells Fargo Bank has already agreed to pay $185 million in penalties and $5 million to customers for opening these unauthorized accounts. In October 2016, the bank’s chief executive, John Stumpf, retired as a result of the scandal.

Kilgore & Kilgore’s Experience with Arbitration Provisions Might Make a Difference in Your Case

Kilgore & Kilgore lawyers counsel and represent employees, executives, and customers of financial institutions who have arbitration provisions in their agreements, including provisions relating to the FINRA arbitration process. We have litigated the enforceability of arbitration provisions. We have represented numerous executives in arbitration proceedings. If you have a question about arbitration or arbitration provisions in an agreement, click here Contact Kilgore & Kilgore to connect with a lawyer for a consultation.

Bank Attempts to Compel Arbitration Provisions in Account Agreements

Wells Fargo Bank recently filed a motion asking the court in Utah to compel arbitration based on the customers’ purported contracts, which contain arbitration provisions. Granting Wells Fargo Bank’s motion would force each plaintiff to pursue his/her claims individually in a private arbitration. The court now must decide, as a threshold matter, whether these plaintiffs will have their day in court. Under the Federal Arbitration Act (FAA), courts often compel arbitration.

Class Action Lawsuit Temporarily Suspended

In December 2016, the court entered a stipulated order staying, or temporarily suspending, the Mitchell case until the defendants’ pending and anticipated motions to compel arbitration are decided. A stay of the underlying litigation is not uncommon in cases in which a defendant is trying to compel arbitration.

Arbitration Provisions are contained in Typical Account-Opening Documents

When a customer opens a bank or brokerage account, s/he is asked to sign an account-opening document. This document contains in small print the arbitration provisions. Most people do not read or pay any attention to these arbitration provisions. However, they are important and potentially controlling when a dispute arises between the customer and the bank or brokerage firm. Customers should beware of these arbitration provisions because they may be giving up important rights, such as their right to pursue their claims in front of a jury or to participate in a class action lawsuit.

Arbitration Versus Litigation

The Mitchell case is a bit unusual. In Mitchell, Wells Fargo Bank is relying on the arbitration provisions in the customer agreements to cover claims relating to sham banking and credit card accounts that the plaintiffs did not actually open. Click here Arbitration Article Dated September 7, 2016 to read our previous blog that explains the arbitration process and how it differs from a traditional court proceeding in dispute settlements. One big difference is that arbitrations are private and court cases are public.

Typically, arbitration provisions prohibit class action lawsuits in which a large number of plaintiffs file suit to pursue common claims against a common defendant. An individual plaintiff may decide not to pursue his/her claims if the damages are small. However, in a class action lawsuit, the cumulative damages can be significant. Thus, a class action lawsuit can be a powerful weapon for customers who have common claims against a common bank or financial institution. A class action lawsuit can level the playing field between an individual customer and a mammoth bank or financial institution. It can be an important deterrent to wrongdoing.

Wells Fargo Bank, like most other banks and financial institutions, would prefer to send each plaintiff to arbitration. Wells Fargo Bank is hoping that if it prevails on its pending motion to compel arbitration, many of the plaintiffs will fade away and decide not to pursue their claims individually in private arbitrations.

Many People Believe Arbitration is Unfair

Many citizens and some politicians believe that the arbitration process unfairly disadvantages the customer. In arbitration, it is difficult for the public to learn about a defendant’s misconduct because the proceedings are not open to the public. Senators Elizabeth Warren (D-Massachusetts), Sherrod Brown (D-Ohio), and Patrick Leahy (D-Vermont) are some of the leading congressional critics of forced arbitration provisions such as those used by Wells Fargo Bank. In addition, the Consumer Financial Protection Bureau (CFPB) is considering rules that would prohibit banks and other institutions from forcing customers to arbitrate their claims and to waive their rights to participate in class action lawsuits.

Kilgore & Kilgore Attorneys May Help You with an Arbitration or Fraud Claim

Our attorneys have experience with arbitration and fraud claims. We understand arbitration proceedings and have helped clients through them. Click here to review a couple of testimonials received from clients we helped through the arbitration process FINRA Arbitration Client Statements. If you have a FINRA claim or other case that will be decided in arbitration, contact us to see if we can help. We offer a free review of the facts of your case. Click here to get started Contact Us.

Federal Contractors May No Longer Deny Paid Sick Leave

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Employees who work for companies that are federal contractors may be entitled to receive paid sick leave from their employers. This new benefit comes through an executive order signed by President Obama. It applies to work connected with federal government contracts solicited after January 1, 2017, as well as to replacements of expired federal contracts. The right to paid sick leave for qualified employees of federal contractors comes in addition to the current right to a federal minimum wage, which was similarly granted under an executive order issued by President Obama. It follows closely on the heels of the new federal overtime rules for non-exempt workers that became effective in December 2016.

While most employers provide their employees with wages and benefits mandated by law, the reality is that some employers don’t abide by the law. If you feel you are being denied paid sick leave when you think you should be receiving this benefit, it is important for you to learn your employee rights. Click here to learn more about Kilgore & Kilgore’s employment law practice Wage and Hour Claims. If you need the advice of someone with the ability to enforce your employee rights, contact us for a free review of the facts of your case. Click here to get started with the discussion Contact Us. One of our employment law attorneys may be able to help.

Paid Sick Leave Coverage

The U.S. Department of Labor (DOL) has issued rules and regulations to implement the federal contractor paid sick leave requirements contained in President Obama’s executive order. Coverage under the final paid sick leave rule is nearly identical to coverage under the minimum wage rule. However, the paid sick leave rule also covers employees who qualify for an exemption from the minimum wage and overtime provisions of the Fair Labor Standard Act. As with most federal regulations of this type, it requires an experienced employment law attorney to understand and apply these provisions to a particular situation.

Categories of Contractual Agreements for Paid Sick Leave

The DOL estimates that the final paid sick leave rule will provide paid sick leave to about 1.15 million employees of companies with federal contracts. Both the federal contractor paid sick leave rule and minimum wage rule apply to four major categories of contractual agreements for primary and subcontracts:

  • Procurement contracts,
  • Service contracts,
  • Concessions contracts, and
  • Contracts issued in connection with federal property or lands and related to offering services for federal employees, their dependents, or the general public.

Paid Sick Leave Accrual

The federal paid sick leave requirement mandates that employees working on matters connected to designated federal contracts receive one hour of paid sick leave for every 30 hours they work, with a maximum of 56 hours of leave a year. Employees will be able to use the days to receive medical attention, care for a relative, or deal with complications arising from domestic violence or sexual assault. The final rule of the DOL allows federal contractors to provide employees with at least 56 hours of paid sick leave at the beginning of each year, rather than allowing employees to accrue leave based on hours worked. The final rule of the DOL also provides that federal contractors must permit employees to carry over accrued, unused paid sick leave from one year to the next. However, federal contractors may limit the amount of paid sick leave employees have accrued to 56 hours at any point in time.

Federal Contractor Responsibilities for Paid Sick Leave

Federal contractors have certain obligations under the DOL final rules regarding paid sick leave and minimum wage. Federal contractors are required to provide their employees with notice regarding the paid sick leave and minimum wage requirements. Employees must be notified in writing of the amount of paid sick leave they have available at the end of each pay period, or each month if shorter. In addition, an employer must notify all employees performing duties connected with a federal contract of the applicable federal minimum wage rate. There are also certain pay frequency and recordkeeping obligations.

DOL Enforcement Procedures

Under the DOL final rules regarding paid sick leave and minimum wage, complaints may be filed with the DOL Wage and Hour Division (WHD) by any person who believes a violation of the executive order or the implementing regulations has occurred. The WHD treats information received related to a complaint confidentially. The rules contain a mechanism for WHD investigations and informal complaint resolution, as appropriate. They also specify remedies and sanctions for violations, including the payment of damages. The WHD may additionally direct that the applicable contracting agency withhold payments due on the federal contract as considered necessary to pay employees the full amount of wages due. While you may file a complaint yourself, to have the best chance of success, it is advised that you work with an experienced employment law attorney.

Federal Contractors May Not Retaliate Against Employees Who Claim Paid Sick Leave

Finally, and importantly, the DOL rules prohibit retaliation against any employee for exercising his or her rights under the executive order or the implementing regulations. It is unlawful for any person to be wrongfully discharged, or in any other manner, use discrimination against any employee for filing a complaint or testifying in any related proceeding.

Our Employment Law Attorneys May Help You Get the Paid Sick Leave You May Deserve

You deserve to receive the paid sick leave due under the law. You have the right to demand those benefits without fear of retaliation by your employer. If you were denied the paid sick leave or overtime wages you are entitled to, contact us. If you have experienced retaliation for exercising your rights, contact us. We offer a free review of the facts of your case with an employment law attorney. Click here to get started Contact Us.

Motive is Key in Retaliation Case under Section 1983

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In a recent case, a public employee was demoted by his supervisor because of his perceived support of a local political candidate, creating a case of unlawful retaliation. The U.S. Supreme Court overturned a prior federal court decision in this case. The U.S. Supreme Court held that a public employee may claim a violation of constitutional rights under Section 1983 where there is an improper motive. In this case, the employee showed that the supervisor took an adverse action against the employee based on an improper motive, even though the supervisor made factual mistakes regarding the employee’s conduct. This decision changes how such retaliation claims are brought against public employers.

Was Retaliation a Factor in Your Situation?

The employment lawyers at Kilgore & Kilgore represent employees in a variety of retaliation and wrongful termination disputes. If you believe your employee rights have been violated, and wish to know more about our employment law practice, click here Employment Law Practice to learn more about the laws governing employee rights. To connect with an employment lawyer for a free review of the facts of your case, click here to connect with us Contact Kilgore & Kilgore.

Public Employer’s Motive Is Essential Factor in Determining if an Employee’s Constitutional Rights Were Violated

The U.S. Constitution’s First Amendment generally prohibits government officials from terminating or demoting public employees because of their engagement in political activity that is constitutionally protected. For example, with limited exceptions, public employers cannot dismiss or retaliate against employees who support a particular political candidate or political party.

In April 2016, the U.S. Supreme Court decided a case in which Jeffrey Heffernan, a police officer in Paterson, New Jersey, was demoted. The demotion occurred because his supervisor incorrectly believed that he had supported a particular candidate in the city’s mayoral election. Heffernan brought a lawsuit in federal court claiming that he was illegally demoted for a political action constituting a protected activity. Heffernan argued that his supervisor had deprived him of a right secured by the Constitution. The lower court ruled against Heffernan because such court found that he had not actually engaged in any protected activity. However, the U.S. Supreme court disagreed and reversed that ruling.

In the case of Heffernan v. City of Paterson, New Jersey, Heffernan’s bedridden mother asked Heffernan to pick up a campaign sign for Lawrence Spagnola, a candidate for mayor running against the incumbent, Jose Torres. Torres had appointed the city’s police chief as well as Heffernan’s supervisor. Word quickly spread throughout the police force that Heffernan had picked up a Spagnola sign. The next day, Heffernan was demoted from detective to patrol officer. Heffernan’s supervisor demoted him because of his perceived support for Spagnola. However, Heffernan was not involved in Spagnola’s campaign. He merely picked up the campaign sign for his mother. Heffernan’s supervisors made a factual mistake regarding his activity.

U.S. Supreme Court Reverses Federal Court Decision

In Heffernan v. City of Paterson, New Jersey, with a 6-2 opinion, the Supreme Court disagreed with the lower court and reversed. In this case, Heffernan’s employer made a factual mistake. The Supreme Court found that it was the motive of the supervisor, and the facts as understood by the employer, that mattered. The Supreme Court concluded that it was the employer’s reason for demoting Heffernan that mattered for purposes of determining any violation of the law under Section 1983.

Even though his employer made a factual mistake about Heffernan’s conduct, Heffernan was nevertheless entitled to challenge his employer’s action. This was because his employer wanted to prevent him from engaging in a protected activity. To prevail, an employee such as Heffernan must prove an improper motive by the employer.

Justice Thomas, joined by Justice Alito, dissented in the Heffernan case. The dissent argued that Heffernan would actually have to engage in a protected activity in the first place in order to sustain his claim. Heffernan’s perceived support of Spagnola’s campaign was not sufficient, according to the dissent. Because Heffernan was not actually engaged in any constitutionally protected activity, these justices believed that the employee had no cause of action under Section 1983. The justices contended that the demotion of Heffernan by his supervisor might be callous, misguided or wrong, but not unconstitutional.

After Heffernan, a public employee is not required to show that he actually engaged in a protected activity in order to support a claim of retaliation under Section 1983. Instead, where the employer make a factual mistake regarding the employee’s conduct, the employee must show that the employer took adverse action against him based on an improper motive.

Our Employment Lawyers Handle Retaliation Cases

Employment laws can be challenged, are redefined, and evolve accordingly. If you wish to know more about the employment law practice of Kilgore & Kilgore, including retaliation cases, check out the many articles we have written by clicking here Employment Law Articles. If you wish to have an employment lawyer review the facts of your case for free, click here and submit a Contact Us form Contact Kilgore & Kilgore.

Whistleblowers May Benefit Under the FCA Law When Defrauders of the Government are Sued

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Typically, whistleblowers report misconduct in the workplace to their employers or to a governmental agency. Whistleblowers often risk retaliation and damage to their careers in the form of discrimination for blowing the whistle on wrongdoing. There are many different kinds of whistleblowers. And, there are a number of specific Texas and federal laws that protect whistleblowers.

The FCA Law Benefits Whistleblowers in Some Instances

The False Claims Act (FCA) is a federal law enacted in 1863 that imposes significant monetary penalties on those who defraud the U.S. government. The FCA permits a special kind of lawsuit known as a qui tam action. This is a civil lawsuit involving a private citizen who has evidence of a fraud. This person can blow the whistle and sue the perpetrator on behalf of the government. If the lawsuit is successful, the whistleblower could be entitled to between 15 and 30 percent of the government’s recovery.

Potential Whistleblowers Take Note

The employment lawyers at Kilgore & Kilgore represent whistleblowers who assert claims under a variety of state and federal laws, including the FCA. If you have evidence of a fraud of the government, you are a potential whistleblower. Click here to learn more about Whistleblower Protection. To connect with an employment lawyer for a free review of the facts of your case, click here Contact Kilgore & Kilgore.

Whistleblowers Can Help the Government Pursue People Who Defraud

A qui tam action encourages whistleblowers to come forward and help the government pursue those who have defrauded it. Liability under the FCA requires that people knowingly present false or fraudulent claims for payment to the government. Qui tam cases might be premised on fraudulent billing practices under the Medicare or Medicaid programs. Other government fraud might be committed by federal contractors or vendors providing goods or services to the government.

After a qui tam action is filed under seal, the U.S. Department of Justice begins an investigation into the allegations and can ultimately intervene in the action. A qui tam action can take many years to make its way through the courts.

The Implied False Certification Theory of Liability

In June 2016, the U.S. Supreme Court issued an important opinion in a qui tam case. In Universal Health Services, Inc. v. United States, the Court held that the implied false certification theory could be a basis for a defendant’s liability under the FCA. Prior to the Court’s opinion, the lower federal appellate courts had disagreed over the validity and scope of this theory of liability.

In Universal Health Services, the alleged violations under the FCA arose under the Massachusetts Medicaid program. The case involved the death of a 17-year-old woman treated at a mental health facility. It was discovered that many of the alleged mental health workers who treated the woman lacked the proper qualifications and licenses to treat her.

A qui tam action was brought under the implied false certification theory of liability. The complaint asserted that reimbursement claims submitted under the Massachusetts Medicaid program showed that specific services were provided by particular professionals. However, these reimbursement claims failed to disclose the defendant’s noncompliance with regulatory staffing and licensing requirements. According to the complaint, the defendant defrauded the state Medicaid program because Medicaid paid defendant’s claims unaware of the staff’s regulatory violations.

An Employment Lawyer Must Prove Two Conditions under the Implied False Certification Theory

The Court held that FCA liability under the implied false certification theory can arise if two conditions are satisfied. First, the defendant must submit a claim for payment to the government that makes a specific representation about the goods or services provided. Second, the defendant must knowingly fail to disclose noncompliance with a material statutory, regulatory or contractual requirement. Further, the defendant’s omission must render its representations misleading.

FCA Liability Can Be Based on a Defendant’s Failure to Disclose

The Court held that a defendant’s failure to disclose its noncompliance with a legal requirement can be a basis for FCA liability. This is true even if that particular requirement was not expressly designated as a condition for payment.

The relevant inquiry, according to the Court, is whether the defendant knowingly violated a requirement that it knows is material to the government’s decision to pay the defendant. The Court emphasized that the materiality requirement is a rigorous standard. Ultimately, the Court vacated the judgment and remanded the matter to the lower courts. It is up to the lower courts to determine whether the complaint was sufficient under the Court’s guidelines.

Does it pay to be a Whistleblower?

Despite possessing proof of a government fraud, potential whistleblowers may have questions and concerns before stepping forward. There is a possibility of receiving monetary compensation if the government recoups damages through the provisions of the False Claims Act. However, achieving success involves a complex legal process. Kilgore & Kilgore can provide the legal assistance needed. Kilgore & Kilgore attorneys have experience with whistleblower protection cases. To learn more about Kilgore & Kilgore’s whistleblower protection law practice, click here Kilgore & Kilgore Whistleblower Protection. To get started on a free review of the facts of your case, click here Contact Kilgore & Kilgore.

Compensatory Damages from FINRA Form U-5 Defamation Claims

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When broker-dealers and other securities industry businesses terminate employees, the persons fired often feel like they are at a disadvantage. This is due to the potential for defamation from the FINRA Form U-5. Most businesses keep reasons for terminations private. However, the reasons for terminations are public in the securities industry business because of the regulatory oversight of the Financial Industry Regulatory Authority (FINRA).

FINRA Form U-5 Allows Public Scrutiny

All securities industry employers are required to file a FINRA Form U-5 within 30 days of an employee termination. This FINRA Form U-5 states the reason for the termination. It must also detail such matters as whether the employee was the subject of consumer complaints or under internal investigation or external investigation for alleged violation of securities industry rules and regulations. The terminated employee has no legal right to provide input regarding the content of the FINRA Form U-5. Therefore, he or she is at the mercy of the employer and the regulatory oversight of FINRA. When the employer includes misleading or false information on the FINRA Form U-5, it can severely damage the terminated employee’s chances for future employment in the securities industry.

Wrongfully Terminated Securities Industry Employees Take Note

If you work in the securities industry and believe your ex-employer included false and defamatory information on your FINRA Form U-5, you should contact a Kilgore & Kilgore attorney to review the facts of your case. Kilgore & Kilgore attorneys have experience with this type of claim. Kilgore & Kilgore attorneys have also been successful in getting the defamation expunged from a FINRA Form U-5. Winning these claims has given back their lives to broker-dealers hurt by the regulatory process. Click here to connect with a Kilgore & Kilgore attorney Contact Kilgore & Kilgore.

In most cases, you cannot contest a FINRA Form U-5 through a lawsuit in court. You must go through the FINRA arbitration process. Kilgore & Kilgore has several attorneys experienced with the FINRA arbitration process and Texas defamation law.

FINRA Form U-4 and FINRA Form U-5

FINRA has regulatory oversight over all securities industry companies that do business with the public. Every individual who works on securities-related matters is required to register with FINRA by submitting a FINRA Form U-4. By filing a FINRA Form U-4, employees agree to settle all disputes with their employers through the FINRA arbitration process. Additionally, the FINRA Form U-4 authorizes securities industry employers to furnish information regarding the history of all employees at the firm and reasons for termination.

Former Employees with FINRA Form U-5 in Public Files

When an employee is terminated, the securities industry employer is required to state the reasons for termination in a FINRA Form U-5. If the terminated employee violated any securities industry rules or regulations, the employer must provide an explanation of the violations. Also, the employer must explain if the terminated employee was under any internal investigation for the violation. The employer must also disclose whether there are any consumer complaints against the employee. The securities industry employer must file the FINRA Form U-5 within 30 days of the termination. The FINRA Form U-5 is stored in FINRA’s Central Registration Depository (CRD) and made accessible to all FINRA member firms. Together, FINRA Form U-4 and FINRA Form U-5 lay the foundation for how FINRA Form U-5 defamation claims must proceed.

FINRA Form U-5 Defamation

Sometimes, when an employer is unhappy with an employee, the employer places false and defamatory information in the FINRA Form U-5. This can have disastrous consequences for the employee. First, all potential new employers have access to, and will certainly review, the FINRA Form U-5. This makes it difficult, if not impossible, for the terminated employee to get another job in the securities industry. Second, potential customers have access to the FINRA Form U-5. Experienced investors often review this public information. Even when a terminated employee manages to get a new job in the securities industry, it is difficult to recruit new customers. When an employer with a bone to pick fires an employee and puts false information in the FINRA Form U-5 disclosure, it can be devastating. It can sabotage a career. This happens more often than you would think.

Compensatory Damage Awards and Expungement of Defamation from the FINRA Form U-5

The aggrieved ex-employee can take legal measures to claim damages and get the defamatory information removed from his or her FINRA Form U-5. He or she can file a claim against the former employer for defamation. Moreover, he or she can request an expungement of the defamatory information on the FINRA Form U-5. Processing such a claim is different from a typical defamation claim. Not just any attorney can successfully handle such a claim. The FINRA Form U-4 requires that all such claims between FINRA member businesses and their registered employees go through FINRA arbitration proceedings. This includes employment disputes that may have an effect on the professional record of a member firm’s employee—including FINRA Form U-5 defamation claims.

FINRA Form U-4 Provides the Basis for a Defamation Claim

The basis for defamation claims by FINRA Form U-4 employees is the false or inaccurate information reported on a FINRA Form U-5. Employees may also request that FINRA expunge such false information from its Central Registration Depository (CRD) records. Terminated employees must file an arbitration demand with FINRA within six years of the recording date of the FINRA Form U-5 in the CRD. One to three individuals chosen by the parties typically comprise the arbitration panel. It generally takes about one year to complete the arbitration process. FINRA arbitration hearings and the evidentiary record are not open to the public. The only information publicly released are the parties’ names, the nature of the claims, the arbitrator’s conclusory findings, and the remedy granted.

State Law Governs the Right to Damages in Defamation Claims

A FINRA arbitration panel hears and rules on FINRA Form U-5 defamation cases. However, state law governs the legal elements of the claim. This means that state law governs the elements of the defamation claim of the employee. State law also governs the defenses available to the employer. And, state laws are not all the same. Damages may include compensatory damages, punitive damages, lost value of benefits, emotional distress, attorneys’ fees, and a recommendation to expunge or amend the FINRA Form U-5.

Accordingly, attorneys often accompany FINRA Form U-5 defamation claims with other claims including wrongful termination, interference with business opportunities, and breach of contract.

The Absolute Privilege Rule

One of the most important rulings the FINRA arbitration panel will make is whether the employer is entitled to an absolute privilege or qualified privilege under the relevant state law. Due to the mandatory nature of the FINRA Form U-5 disclosure requirements and the public benefits they provide, some state courts have ruled that employers are entitled to an absolute privilege. Absolute privilege means that the person making the statement has the absolute right to make that statement at that time, even if it is defamatory. In other words, the person making the defamatory statement is immune from a defamation lawsuit. This makes it very difficult if not impossible to win a claim against them.

In other states, including Texas, either a qualified privilege applies or the law is unclear. A qualified privilege raises the bar for a wrongfully terminated employee to prove a claim. For example, it may be necessary to show the employer was malicious or reckless rather than merely negligent in the FINRA Form U-5.

Kilgore & Kilgore Attorneys Have Won Damage Awards in FINRA Defamation Claims

Despite the presence of a qualified privilege in many states, FINRA arbitration panels have granted significant monetary damage awards and expungement to aggrieved ex-employees. To obtain such an award is a complex legal process involving FINRA rules and procedures plus state defamation law. Kilgore & Kilgore can provide the legal assistance needed. Kilgore & Kilgore attorneys have won damage awards and expungements through FINRA arbitrations. To learn more about Kilgore & Kilgore’s securities industry and FINRA law practice, click here Kilgore & Kilgore Securities Fraud and FINRA Dispute Practice. To get started on a free review of the facts of your case, click here Contact Kilgore & Kilgore.

Employers Use Arbitration to Resolve Employee Disputes

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Arbitration is an Alternative System of Dispute Resolution

Arbitration is a private, alternative system of dispute resolution. In arbitration, the parties present their claims and defenses to one or more arbitrators who decide the matter. Typically, an arbitrator is an attorney or former judge who is paid a fee by one or more parties to serve as the arbitrator. The allocation of fees and expenses between the parties is typically outlined in the arbitration provision in the parties’ employment contract.

Many employers require their employees and executives to sign employment contracts or employment agreements that contain an arbitration provision. Generally, an arbitration provision requires an employee to assert any claims she or he might have against his employer in arbitration, rather than in state or federal court. An arbitration provision is usually, but not always, enforced by the courts.

Our Employment Lawyers Have Extensive Experience with Arbitration

Bill Masterson, a Kilgore & Kilgore attorney, recently successfully set aside an arbitration agreement in court. Bill Masterson argued that the arbitration agreement be voided because the employee who signed the agreement spoke only Vietnamese. The agreement was written in English. The case, Sang Nguyen v. Doskocil Manufacturing Company Inc., was heard recently in the Tarrant County court. The court ruled that, since the plaintiff did not understand the arbitration agreement, it must be set aside. If you have a question about arbitration or an arbitration provision in your employment agreement, click here Contact Kilgore & Kilgore to connect with an employment lawyer for a consultation.

Kilgore & Kilgore’s employment lawyers counsel and represent employees and executives who have arbitration agreements with their employers. We have litigated the enforceability an arbitration provisions. We have represented numerous executives in arbitration proceedings.

There are several private and non-profit organizations that administer arbitration proceedings. These organizations are often identified in an arbitration provision. Such organizations often supply a list of arbitrators that may be used for arbitration. In addition, these organizations often have their own procedural and discovery rules for arbitration.

Arbitration Compared with Trial

One significant difference between arbitration and trial is that the employee or plaintiff is no longer entitled to the right of trial by jury. A trial by jury usually is an employee or plaintiff’s right when a case proceeds in a courthouse. Some jurists or employers believe that arbitration is a faster, more efficient, and less expensive system of resolving disputes. However, in reality, arbitration proceeds at the same pace as a traditional court case. The legal and factual issues in arbitration can be just as complicated as in a court case. Arbitration proceedings are like formal court cases. Both processes can require pleadings, motions, discovery, and hearings. Both can be active for over a year. Thus, arbitration is often no less expensive or time-consuming than a traditional court case.

Arbitration May Be More Relaxed than a Formal Courtroom Trial

At the final hearing in arbitration, the parties present their evidence and examine their testifying witnesses in front of the arbitrator. While there is a fact finder, there is no judge in a black robe, courtroom, or jury. Instead, the final hearing is like an informal trial. The arbitration hearing may be held in an office or hotel conference room. Often, an arbitration provision identifies a specific city where the arbitration is to be conducted.
The rules of evidence may be relaxed at final arbitration hearings. After the final hearing, the arbitrator renders a decision. The arbitrator can also award monetary or other relief to a prevailing party. Often a prevailing party must go to court to enforce an arbitrator’s award. The legal standard in court for overturning an arbitrator’s award is extremely high.

Some Arbitration Agreements May Be Unenforceable

Some arbitration agreements prohibit employees from asserting collective arbitration or collective action in any forum. Many arbitration agreements require employees to bring claims, such as overtime pay claims, only through individual, piecemeal arbitration proceedings. Employers try to force this requirement on their employees to make it difficult for them to organize together and to assert a class action claim.
In an opinion dated May 26, 2016, the U.S. Court of Appeals for the Seventh Circuit held that an arbitration agreement between an employer and its employees for overtime pay claims violates the National Labor Relations Act, or NLRA. The Court also held that such an agreement is unenforceable under the Federal Arbitration Act, or FAA. The case is Lewis v. Epic Systems Corporation.

NLRA, FAA, Worker Rights and Arbitration

The NLRA was enacted in 1935 and provides workers with collective bargaining rights. The NLRA was designed to level the playing field for workers and their employers. Section 7 of the NLRA permits employees to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8 of the NLRA enforces Section 7 by stating that any interference by an employer with an employee’s rights under Section 7 is an unfair labor practice.

In Lewis, the Seventh Circuit read the phrase concerted activities broadly to include collective or class remedies. Thus, the Seventh Circuit held that the arbitration agreement at issue in Lewis, which prohibited collective action, was unenforceable and in violation of Sections 7 and 8 of the NLRA.

The Seventh Circuit in Lewis also concluded that the NLRA was not in conflict with the FAA. The Seventh Circuit decided that because the arbitration provision at issue was illegal under the NLRA, the FAA did not require its enforcement. This Court also determined that the right to collective action in Section 7 is substantive, rather than merely procedural. An arbitration agreement that requires a party to waive a substantive right is unenforceable.

Courts are Split

The Lewis opinion is the law only in the Seventh Circuit. That means it is the law only in the federal courts in Wisconsin, Illinois, and Indiana. Texas, on the other hand, is within the Fifth Circuit. Thus, the Lewis opinion is not the law in the federal courts in Texas. In fact, the Fifth Circuit, in D.R. Horton, Inc. v. NLRB, came to the opposite conclusion from the Seventh Circuit. It held instead that Section 7 of the NLRA did conflict with the FAA.

There is a conflict of opinions in the federal circuits. They do not agree regarding the enforcement or not of arbitration and waiver provisions such as those at issue in Lewis and D.R. Horton. Thus, it may be up to the U.S. Supreme Court to decide this issue at a future date.

To learn more about our employment law practice, click here Employment Lawyer. To contact us for a consultation with an employment lawyer, click here Contact Kilgore & Kilgore.