EEOC Wins Religious Discrimination Lawsuit Against Employer for Constructive Termination

Posted on

Title VII of the Civil Rights Act of 1964 protects employees from workplace discrimination on the basis of their race, color, religion, sex, or national origin. In addition, Title VII requires an employer to reasonably accommodate an employee’s religious beliefs and observances.

In a religious accommodation case under Title VII, the U.S. Court of Appeals for the Fourth Circuit upheld a judgment for $150,000 in compensatory damages and over $436,000 in front pay, back pay, and lost benefits awarded to a former coal miner in West Virginia. The appellate court agreed with the trial court that the evidence showed that the miner’s employer failed to accommodate his religious beliefs and was guilty of a constructive discharge of the employee, in violation of Title VII. The opinion was issued on June 12, 2017, in the case EEOC v. Consol Energy, Inc.

The EEOC May Bring a Lawsuit against an Employer

The EEOC sued Consol Energy on behalf of coal miner Beverly Butcher, a former Consol employee. Occasionally, the EEOC itself will bring a lawsuit on behalf of an aggrieved employee if it believes it has a strong case against the employer. Typically, however, the EEOC issues a right to sue letter to the employee (known as the claimant) that allows the claimant himself/herself to bring a lawsuit in court. If you have received a right to sue letter from the EEOC, contact an employment law lawyer at Kilgore & Kilgore to learn the best way to proceed with your case. Please click here to reach out to us Contact an Employment Law Lawyer.

Hand Scanner Used by Employer to Record Work Hours and Attendance of Employees

In 2012, Consol Energy installed a biometric hand scanner at the West Virginia coal mine where Butcher had worked for nearly 40 years. Consol implemented this hand scanner system in order to improve its ability to monitor employee attendance and work hours. Each worker was required to scan his/her right hand when checking in or out of a work shift. The shape of each worker’s hand was linked to that worker’s personnel number.

Employee’s Religious Beliefs Prevented His Use of the Hand Scanner

Butcher is a life-long, devout evangelical Christian, an ordained minister, and an associate pastor. Use of the hand scanner on Butcher would have threatened his core religious commitments. At trial, Butcher testified that he believed that the use of Consol’s hand scanner on either of his hands would conflict with his closely held religious beliefs.

Workplace Discrimination Arose from Accommodations Made to Other Employees with Hand Injuries, But Not to Mr. Butcher

While Consol resisted accommodating Butcher’s religious beliefs, this same employer was making accommodations for two other employees who had hand injuries that prohibited their use of the hand scanner. Consol permitted those two employees to enter their personnel numbers on a keypad. Consol refused to make the same accommodation for Butcher. This employer decided that Butcher would be required to scan his left hand. The manufacturer of the hand scanner had provided Consol with a letter in which it offered its own religious explanation that scanning Butcher’s left hand, as opposed to his right hand, would not conflict with his religious beliefs. Consol made it clear to Butcher that he would be required to scan his left hand or be subject to disciplinary action. In response, Butcher tendered his retirement from the company.

The EEOC Prevailed at Trial against Consol

The jury found that all three elements of a Title VII of the Civil Rights Act of 1964 reasonable accommodation claim were satisfied by the evidence. First, Butcher had sincere religious beliefs that conflicted with Consol’s required use of the hand scanner. Second, Butcher informed Consol of this conflict. Third, Consol engaged in a constructive discharge of Butcher for his refusal to comply with its directions. In affirming the denial of Consol’s post-verdict motion for judgment as a matter of law, the Fourth Circuit found that the evidence at trial fully supported the jury’s verdict in favor of Butcher.

Appellate Court Ruled in Plaintiff’s Favor

On appeal, Consol continued to rely on the letter from the manufacturer of the hand scanner to argue that the mark he didn’t want is associated with only the right, not the left hand. Thus, Consol was convinced that Butcher’s religious beliefs, though sincere, were mistaken. However, the Fourth Circuit explained in its opinion that it is not “Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings.” The court stated that all that matters for satisfying the first element of a reasonable accommodation claim is that Butcher’s religious beliefs are sincerely held and conflict with Consol’s employment requirement.

Constructive Discharge is a Term Used When an Employee Is Forced to Resign Because of Intolerable Working Conditions

The Fourth Circuit also found that there was sufficient evidence at trial to show Butcher’s constructive discharge. A constructive discharge occurs when an employee is subjected to circumstances that are so intolerable that a reasonable person would resign. The appellate court determined that there was substantial evidence that Butcher was put in an intolerable position when Consol refused to accommodate his religious objection to the hand scanner.

Workplace Discrimination Occurs in Many Different Types of Situations

Perhaps you have suffered from a workplace discrimination, such as a wrongful termination, retaliation for making a benefits claim, or some other adverse action by your employer. If so, please click here Contact an Employment Law Attorney at Kilgore & Kilgore for a free evaluation of the facts of your case.

UK Supreme Court Finds Court Fees Levied by Employment Tribunal Fees Illegal and Constitute Discrimination

Posted on

The highest court in the United Kingdom recently ruled that the fees workers were required to pay to bring employment claims before employment tribunals in the United Kingdom are illegal. In its July 26, 2017, unanimous judgment, a panel of seven justices of the UK Supreme Court held that the fees the government had mandated in 2013 are unlawful barriers that denied workers fair access to justice under both United Kingdom and European Union law.

The challenge to the employment tribunal fees was brought by Unison, a large public service trade union in the United Kingdom. The lower courts had upheld the fees. Unison successfully appealed to the UK Supreme Court in London.

Court Fees Were Assessed Beginning in 2013 for Employment Claims in the United Kingdom

Before July 2013, a worker was not required to pay any fees to bring employment claims before a UK employment tribunal. After the government imposed the employment tribunal fees in July 2013, however, workers had to pay fees ranging from £390 ($508) to £1,200 ($1,565) depending on the type of employment claim. The fees charged for employment discrimination and wrongful termination claims (in the United Kingdom, called unfair dismissal claims) were at the upper end of the range. The government introduced these fees in the belief that it would cut down on the filing of meritless cases.

Court Fees Imposed in 2013 Led to a 70% Drop in Employment Claims

After the fees were imposed, the number of employment claims cases before employment tribunals dropped precipitously. A United Kingdom government report found a 70 percent decrease in the number of cases. The Supreme Court of the United Kingdom found that the fees served as discrimination against women in particular because women were filing a higher proportion of employment discrimination cases.

The Supreme Court of the United Kingdom stated that court fees are not prohibited, but the law guaranteed access to the courts. The court found that the employment tribunal fees unlawfully impeded a worker’s access to the courts and that “[a] significant number of people…have found the fees to be unaffordable.”

Court Fees Dropped in July 2017 for Employment Claims and Refunds Underway

As a result of the ruling, the government of the United Kingdom immediately stopped collecting employment tribunal fees. And now the government must refund up to £32 million ($41.75 million) in fees to thousands of claimants, dating back to July 2013. Lawyers (known as solicitors in the United Kingdom) believe that without the required payment of fees, the number of employment claims filed by workers probably will increase significantly over time.

Court Fees in the United States Are Also High

Initiating an employment claim in the United States for employment discrimination, overtime pay, breach of contract, or wrongful termination requires that the claimant pay administrative fees. In the Dallas County civil courts, for example, a single plaintiff is required to pay an initial filing fee of $287. There are usually additional fees, as well. The initial filing fee for a civil lawsuit in federal court in the Northern District of Texas is $400. An indigent person, however, can file a detailed, sworn application with the court to be allowed to proceed without prepayment of the court fees.

Mandatory Arbitration Clauses in Employment Contracts Add to the Cost

Many employers require their employees to execute employment contracts that contain mandatory arbitration clauses. Instead of filing an employment claim in state court or federal court, the claimant must file the claim with an arbitration provider. The arbitration provider is usually a private or not-for-profit organization. Arbitration, unlike a court proceeding, is private. The public may not have access to arbitration filings, proceedings or awards. This appeals to employers because of the privacy and secrecy shrouding an arbitration proceeding. Furthermore, arbitration may cost more to workers than proceeding in court. To learn more about arbitration, click here Employers Use Arbitration.

The Cost of Arbitrations in Texas

In Texas, arbitration can be quite costly for a claimant. The mere filing of a claim in arbitration can cost well over $1,000 in administrative fees. Depending on the arbitration provider and the arbitration clause in the employment contract, the claimant may also be responsible for additional fees. Sometimes, claimants argue in court that the fees associated with arbitration deny them access to justice, but usually this argument fails. Courts in Texas typically order arbitration if the legal prerequisites for arbitration have been met.

Do I File an Employment Claim in Court or in Arbitration?

If you have an employment claim but are uncertain if it should be filed in court or in arbitration, then you should contact an employment attorney at Kilgore & Kilgore to discuss the facts of your particular situation. Please click here the get started with a free evaluation of the facts of your case Contact Kilgore & Kilgore.

Employment Benefits at the Heart of a Legal Battle in Texas

Posted on

In a Texas Supreme Court decision delivered on June 30, 2017, the state’s highest civil court narrowly applied the U.S. Supreme Court’s ruling from 2015 that legalized gay marriage in the United States. The Texas Supreme Court, addressing an interlocutory appeal out of the Fourteenth Court of Appeals in Houston, did not acknowledge outright that same-sex spouses of employees of the City of Houston are entitled to the same tax-funded employment benefits that are offered to opposite-sex spouses of City employees. However, the Texas Supreme Court remanded the case to the trial court to examine the legal issue “in light of” the U.S. Supreme Court ruling. The case is Pidgeon v. Turner.

If Employment Benefits to Which you were Entitled were Denied, our Law Firm may be Able to Help

The lawyers at our firm, Kilgore & Kilgore, have an abundance of experience advising clients with respect to employment benefits. If you have a question about your benefits, then click here Employee Benefits Law to review our website pages on this topic. If you wish to set up a free review of the facts of your case with a Kilgore & Kilgore lawyer, get started by clicking here Contact Kilgore & Kilgore.

Same-Sex Couples are entitled to Same Rights and Employment Benefits as Opposite-Sex Couples

In 2015, in Obergefell v. Hodges, the U.S. Supreme Court held that same-sex couples cannot be denied civil marriage on the same terms and conditions as opposite-sex couples. The U.S. Supreme Court found that the denial of marriage equality to same-sex couples is a violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution. In Obergefell v. Hodges, the U.S. Supreme Court also recognized that same-sex couples are entitled to the same rights and constellation of benefits … linked to marriage as opposite-sex couples.

City of Houston Challenged in Court over Employment Benefits

In Pidgeon v. Turner, the plaintiffs challenged the City of Houston’s policy of offering the same employment benefits to same-sex spouses of employees that were offered to opposite-sex spouses. The trial court granted the plaintiffs’ request for a temporary injunction barring the Mayor of Houston from providing employment benefits to same-sex spouses of city employees. The Mayor filed an interlocutory appeal. After Obergefell v. Hodges was decided, the Fourteenth Court of Appeals in Houston reversed the trial court’s temporary injunction. The plaintiffs then sought review from the Texas Supreme Court.

Ultimately, the Texas Supreme Court reversed the court of appeals’ judgment, vacated the trial court’s orders, and remanded the case to the trial court for a new examination of the legal issues consistent with the Texas Supreme Court’s opinion and judgment.

Texas Supreme Court Challenged the Trial Court to Consider U. S. Supreme Court’s Finding

In its opinion, the Texas Supreme Court applied the ruling in Obergefell v. Hodges narrowly. Even though the Texas Supreme Court agreed with the Mayor that the trial court must consider Obergefell v. Hodges in its constitutional analysis of the provision of employment benefits to same-sex spouses, the Texas Supreme Court did not find Obergefell to be controlling. Instead, the court remanded the case to the trial court to examine the legal issue merely “in light of” Obergefell.

The Texas Supreme Court in Pidgeon v. Turner also agreed with the plaintiffs that Obergefell did not specifically address the issue of tax-funded employment benefits to same-sex spouses. The Texas Supreme Court found that Obergefell only “requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons.”

The Texas Supreme Court did not find that the City’s denial of employment benefits to same-sex spouses would be unconstitutional under Obergefell, as many would contend. Instead, in punting the case back to the trial court, the court is giving the parties a chance to “assist the courts in fully exploring Obergefell’s reach and ramifications.” However, it would appear that the City’s provision of employment benefits to same-sex spouses is a fixed star in Obergefell’s “constellation of benefits” that cannot be denied to married same-sex couples if the same employment benefits are provided to married opposite-sex couples.

Learn more about Eligibility for Employment Benefits in Texas

If you wish to learn more about employment benefits lawsuits, then click here, Dallas Employee Benefits Attorneys. Or, if you wish to speak to an attorney at our firm for a free review of the facts of your case, get the conversation started by clicking here Contact Kilgore & Kilgore.

Seventh Circuit Holds that Sexual Orientation Discrimination is Sex Discrimination

Posted on

In a recent ground-breaking decision, the U.S. Court of Appeals for the Seventh Circuit held that discrimination on the basis of sexual orientation is a form of sex discrimination that is prohibited by Title VII of the Civil Rights Act of 1964. The case, which was decided by the full court (en banc) on April 4, 2017, is Hively v. Ivy Tech Community College of Indiana.

Sexual Orientation Discrimination is Sex Discrimination

Title VII prohibits covered employers from discrimination on the basis of a person’s “race, color, religion, sex, or national origin.” The Seventh Circuit is now the first federal court of appeals to recognize that discrimination by an employer on the basis of an employee’s sexual orientation is a form of sex discrimination prohibited by Title VII.

Jurisdiction of Sex Discrimination Decision Outside of Texas

The Seventh Circuit, located in Chicago, Illinois, is the intermediate federal appellate court for the district courts in Illinois, Wisconsin, and Indiana. Thus, Hively is not controlling law for the federal district courts in Texas, which are within the Fifth Circuit where sexual orientation has not been recognized as a basis for a Title VII sex discrimination claim.

Employment Discrimination Lawyers at Your Service

The lawyers at Kilgore & Kilgore handle a wide variety of employment discrimination claims. If you have evidence that you suffered from illegal discrimination by your employer, you should click here Contact Kilgore & Kilgore to connect with an employment lawyer for a free review of the facts of your situation.

Lesbian Denied Employment Opportunities

In the Hively case, the plaintiff Kimberly Hively is a lesbian who taught part-time at Ivy Tech Community College. She applied for at least six full-time positions at Ivy Tech but was never offered full-time employment. Ultimately, Hively’s part-time teaching contract was not renewed.

Sex Discrimination Claim filed with the EEOC

Hively filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) based on sexual orientation discrimination and eventually filed a lawsuit in the U.S. District Court for the Northern District of Indiana. The lower court dismissed Hively’s action for her failure to state a claim on which relief could be granted. A panel of the Seventh Circuit affirmed the lower court’s dismissal. Subsequently, the full Seventh Circuit reheard the case en banc, reversed the district court, and remanded the case for further proceedings.

Full Panel of Judges heard this Sex Discrimination Appeals Case

The full Seventh Circuit had to interpret the statute, 42 U.S.C. § 2000e-2(a), to determine whether discrimination on the basis of Hively’s sexual orientation is discrimination because of her “sex” within the meaning of Title VII. The Seventh Circuit initially observed that often statutory prohibitions are broad and go beyond the principal evil (i.e., sex discrimination) to cover other comparable evils.

Hively used the comparative method to argue that she was subjected to discrimination because of her sex. She argued that had she been a man (instead of a woman) in a relationship with a woman, then Ivy Tech would not have discriminated against her. The Seventh Circuit agreed with Hively’s argument.

Hively also used an associational theory to advance her claim that discrimination on the basis of sexual orientation is sex discrimination. Under this theory, courts have concluded that a person who is discriminated against because of the protected characteristic of the person with whom she associates is actually being discriminated against because of her own characteristic. In accepting Hively’s associational theory of discrimination, the Seventh Circuit stated that if the sex of either partner in a lesbian relationship were changed, then the outcome would be different. Thus, Title VII would also prohibit discrimination against Hively based on the sex (female) of her partner. The essence of Hively’s claim under either of her arguments is that she would not have suffered employment discrimination had her sex been different.

Discrimination Based on Sexual Orientation is Sex Discrimination

In interpreting the relevant part of Title VII, the Seventh Circuit looked to recent guidance from the U.S. Supreme Court in the areas of employment discrimination and “broader discrimination on the basis of sexual orientation.” The Seventh Circuit stated that in light of certain U. S. Supreme Court decisions and the “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex,” the time had come for it to overrule its previous cases that found that sexual orientation discrimination was distinct from sex discrimination. Thus, the Seventh Circuit sitting en banc held that “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.”

Three judges on the Seventh Circuit joined in a blistering dissent. They referred to the majority opinion as “a statutory amendment courtesy of unelected judges,” “artifice,” and an “abstract thought experiment[ ].”

This Controversial Decision Will Probably be Challenged

It seems nearly certain that the federal circuit courts will split on whether or not sexual orientation discrimination is sex discrimination for purposes of Title VII. That means that the U.S. Supreme Court could decide this issue in the future.

Personal Injuries Often Result in Negligence Claims That May go to Trial or Arbitration

Posted on

Many workers are injured during the performance of their jobs. In fact, according to the U. S. Bureau of Labor Statistics, over 2.9 million cases of on the job injuries were recorded in 2015. Other personal injuries arise from different situations that are not work-related. Many of these cases no doubt resulted in negligence claims. In order to win a negligence claim, an injured person, known as the plaintiff, must prove each of the following three elements of the negligence claim in court or in arbitration:

  1. That the defendant owed a particular duty to the injured person;
  2. That the defendant breached that duty; and
  3. That the defendant’s breach of that duty was the proximate cause of the plaintiff’s injury.

Did You Suffer Personal Injuries and Have a Negligence Claim?

If you have sustained an injury and think you might have a negligence claim against your employer or another party, click here Contact Kilgore & Kilgore to connect us. We offer a free evaluation of the facts of your case so you can understand your situation from a legal perspective. The lawyers at Kilgore & Kilgore handle many different kinds of cases, including negligence claims. The attorneys at our firm also handle many other types of claims for on the job injuries. To read a recent blog article about another type of claims, click here Non-subscriber Claims for Workplace Injuries.

Workplace Injury Negligence Claim in Dallas

A negligence claim filed in the Dallas County District Court was settled several months ago. A pipe fitter/welder had suffered numerous personal injuries after part of the lift he was operating struck him in the head and face. The case was Busch v. Sunbelt Rentals, Inc. The worker sued the company that rented the lift to his employer. He did not sue his employer. The worker alleged that the rental company was negligent because it did not properly maintain, service, and inspect the lift.

An Expert Witness Was Employed to Help the Judge and Jury to Understand Technical Issues

The worker retained an expert witness, a metallurgical engineer, to provide an expert report in support of his claim. In negligence claims and other kinds of cases, it is common for parties to engage expert witnesses who proffer expert reports and testimony on technical issues. Expert witnesses are often professors, doctors, engineers, accountants, economists, or others who have specialized knowledge in their field and who are paid a fee by the party that engages them. Expert witnesses are typically deposed in the discovery phase before trial and testify at trial in order to provide explanations of pertinent technical issues.

The Negligence Claim for his Personal Injuries Settled Before Trial

In his lawsuit, the worker sought damages for several different types of expenses he incurred. He claimed damages for past and future physical pain and mental anguish. He claimed damages for past and future physical impairment and disfigurement. He claimed damages for his loss of past earning capacity. He also claimed damages for past and future medical expenses. Before the case went to trial, the case was settled with the rental company’s insurance carrier for $400,000.

A Car Buyer Sustained Personal Injuries at a Car Auction

In a different negligence claim, an action was brought in the Harris County District Court in Houston, Texas. A car buyer was struck by the driver of an SUV working at a car auction. The case was Ghan v. Manheim Remarketing Inc. The car buyer suffered broken bones in his leg. The car buyer sued the temporary staffing agency that engaged the car driver of the SUV and the driver personally. He also sued the operator of the car auction. The plaintiff sought damages for past and future physical pain, mental anguish, and physical impairment. At trial, the jury found negligence and assigned comparative responsibility to all of the parties, including the plaintiff. Ultimately, the court entered judgment for the plaintiff for over $1.4 million.

Reach Out to the Personal Injury Lawyers at Kilgore & Kilgore

If you have sustained personal injuries and think you may have a negligence claim against your employer or another party, click here Contact Kilgore & Kilgore to connect us. We offer a free evaluation of the facts of your case so you can understand your situation from a legal perspective. The lawyers at our firm handle many different kinds of cases, including negligence claims.

Recent Employment Discrimination and Retaliation Cases in Texas

Posted on

Misconduct by employers gives rise to many employment claims resulting from unlawful discrimination and retaliation in the workplace. Two recent cases in Texas courts discussed below provide examples of employment claims involving discrimination by employers in Texas. Do you have a discrimination claim against an employer? The mere belief of an employee that he or she suffered discrimination or retaliation is not legally sufficient to bring a claim. Employees bringing claims against employers must produce direct or circumstantial evidence to prove their claims.

Kilgore & Kilgore has Experience with Employment Discrimination and Retaliation Claims

If you think you have been discriminated against by your employer because of your sex, age, race, religion, disability, national origin, or another illegal reason, click here to connect with an employment lawyer at our firm for a free review of the facts of your situation Contact Kilgore & Kilgore.

Direct or Circumstantial Evidence of Discrimination or Retaliation

An example of direct evidence of discrimination would be an oral or written communication in which an employer states that an adverse employment action has been taken against an employee because of the employee’s sex, age, race, religion, disability, national origin, or membership in a protected class. Usually, it is difficult for an employee to produce this kind of smoking gun direct evidence in today’s workplace where discrimination is quite subtle.

In most cases, an employee must rely on circumstantial evidence to prove his or her claim of discrimination. An example of circumstantial evidence of discrimination would include a comparison of employees who are similarly situated in terms of experience, qualifications, and performance, but who are treated differently. This might be due to that employee’s membership in a protected class. An employer’s conduct towards employees in the same protected class could be another example of circumstantial evidence of discrimination.

Protected Class Definition in the Context of Discrimination Law

In U. S. federal anti-discrimination law, a protected class is a group of people with a common characteristic who are legally protected from discrimination on the basis of that characteristic. For example, the characteristics of race are protected by federal law in the Civil Rights Act of 1964.

Retaliation Claims

For a retaliation claim, close temporal proximity between the employee’s protected activity and the employer’s adverse action is an example of circumstantial evidence of unlawful retaliation. Many courts have rules that define temporal proximity as a short time interval between a protected activity and an adverse action. This standard includes the word close as in close in time meaning within a reasonable timeframe.

An accumulation of circumstantial evidence can give rise to an inference of discrimination or unlawful retaliation. Typically, an employer will try to offer legitimate, non-discriminatory and non-retaliatory reasons for its adverse action against an employee. Ultimately, the employee, through his or her evidence, must show that the employer’s proffered reasons are merely pretext for actual discrimination or retaliation.

To Start Discrimination Claim File a Complaint with the TWC or EEOC

Before an employee can file a lawsuit for employment discrimination or retaliation in Texas, he or she must file a complaint of discrimination with the Texas Workforce Commission (TWC) or the U.S. Equal Employment Opportunity Commission (EEOC). Such complaints must be filed in a timely manner, as there are restrictions with each agency. For information about these time restrictions, click here EEOC Guidelines Page.

Sex Discrimination Plaintiff Prevails in El Paso

Unfortunately, many women experience sex discrimination and retaliation in the workplace. In a case in El Paso County District Court, an operations manager brought an action against the county after she was terminated. The case was Miranda v. El Paso County. Prior to her termination, she (the plaintiff) allegedly experienced sexual harassment by her supervisor. When the plaintiff learned that her supervisor was going to be promoted, she objected to the supervisor of her boss, pursued a grievance, and was terminated. The plaintiff claimed that she was terminated because of sex discrimination and retaliation. However, the county claimed that the plaintiff was terminated because of insubordination.

At trial earlier this year, the court awarded the plaintiff $203,000 in back pay. The jury found in favor of the plaintiff on her claims of sex discrimination and retaliation. She was awarded $750,000 for past and future emotional distress. This award was reduced to $300,000 under Texas law, since caps apply to such claims.

Jury Awarded Damages to Age Discrimination Plaintiff

If you are 40 years of age or older, you may be protected by state and federal age discrimination laws. In a recent case, a maintenance assistant for the Texas Department of Transportation brought an action in El Paso County District Court for age discrimination. He was terminated at age 47. The case was Flores v. Texas Department of Transportation. The state argued that he (the plaintiff) was fired due to his policy violations regarding a truck and for poor performance. The plaintiff alleged that at a meeting of district engineers there was a discussion that the workforce for the department was getting too old. The plaintiff also claimed that other workers over 40 were subject to discipline, transfer, forced retirement, or termination. He alleged that these actions occurred around the time of his own termination and that he was replaced by younger workers.

At trial earlier this year, the plaintiff sought back pay, front pay, past employment benefits, and compensatory damages. The jury found in favor of the plaintiff on his age discrimination claim and awarded him damages of over $254,000.

Our Employment Attorneys May be Able to Help You with a Discrimination or Retaliation Claim

The attorneys at our firm had no involvement in either of the discrimination cases discussed above. All employment law cases are unique. If you would like to discuss the facts of your particular situation with an employment lawyer, we offer a free evaluation of the facts of your situation so you can understand it from a legal perspective. Click here to get started Contact Kilgore & Kilgore.

Non-subscriber Insurance Claims for Workplace Injuries

Posted on

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

Posted on

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

Posted on

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

Posted on

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.