Artificial Intelligence in Law, AI in Courtrooms, and AI Tools in Legal Practice

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Judge Brantley Starr of the Northern District Court of Texas recently issued an order that requires lawyers who file documents on his docket to certify either that the filings are free of content produced by large language model artificial intelligence tools, like ChatGPT. Another acceptable option he offered was that the documents being submitted receive a review by a human for accuracy.

This followed an unfortunate New York incident in which a lawyer filed a document that had been produced by an AI tool that invented citations. In a preventative move, Judge Starr specifically cited a tendency for AI tools in legal practice to “hallucinate” by generating text that appears plausible but is factually, semantically, or syntactically incorrect. The New York judge presiding over the original unfortunate case has now urged the lawyers to consider “seeking forgiveness.” But AI has no shame, which may be a fatal flaw.

Judge Starr’s order appears to be the first of its kind in Texas. But AI tools have been around for decades, and the pros and cons of using AI tools in legal practice, especially criminal law, have already been explored by thoughtful legal scholars. Issues about the use of AI in law for business, employment, personal injury, and commercial litigation are still developing.

Kilgore & Kilgore Lawyers Understand Texas Litigation and How to Use AI Tools in the Legal Practice

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AI Tools Defined

Artificial intelligence is an umbrella term that refers to computers doing intelligent things such as performing cognitive tasks — learning, reasoning, analysis — that were once thought to be the sole province of humans. It is not any one technology or function. AI tools in common use are just called software. Each of the three software elements described below has strengths and frailties. Extended or virtual reality tools, perhaps the next AI tools in legal practice, pose additional challenges. These AI tools are characterized by:

  • Algorithms, which can be understood as a set of steps to complete a task;
  • Machine learning or, at its simplest, an ability to imitate human behavior; and
  • Natural language processing.

Strengths of AI in the Legal Practice

In the context of a law office, which is where much of civil practice is conducted, AI tools are already in common use. For example:

  • Lawyers use AI tools to conduct legal research, draft and review contracts, and find relevant documents in the discovery process. The principal strength of AI is its ability to sift quickly through huge amounts of data. Through patterns, AI tools might be useful in spotting large scale financial fraud — for example, a pattern of upcoding in a Medicare reimbursement scam.
  • AI tools can help predict judgment outcomes in preparing for settlement negotiations. At that point, litigants are often calculating risks and rewards. AI tools help by performing predictive modeling.

In the context of face-to-face situations, AI tools can help. For example:

  • Artificial intelligence can be invaluable in overcoming language barriers.
  • Virtual reality tools can increase attorney productivity and avoid costly mistakes, which may make the legal process fairer and more accessible. This, in turn, may level the playing field for those without deep pockets. Countries like Estonia and China have experimented with online courts for minor civil matters, like parking tickets and small-dollar contract issues, which are decided by human decision-makers informed by AI tools.
  • It is possible to imagine, for good or bad, that JudgeBots might eventually step into the space now occupied by arbitrators.

AI Limitations in the Legal Practice

An algorithm, itself, is amoral. This is not a system designed to recognize ethics. The three basic tools of artificial intelligence are also the sources of its limitations:

  • Algorithms are built using historical data. These may incorporate historical biases or the biases of programmers. We cannot expect great leaps of imagination or an articulation of social imperatives from artificial intelligence.
  • The tasks that algorithms are designed to perform may be opaque to the end user.
  • Algorithms are value neutral. The designated task may lend itself to destructive goals or desirable ones. For example, if an algorithm’s task is to produce the greatest number of responses or Likes (probably a neutral good), and the user asks, How can I build a bomb? the algorithm could become a networking tool for bomb builders, clearly a bad thing.
  • AI tools can process superhuman quantities of information at superhuman speeds. It can then adapt to the new data set. The ability of AI tools to learn has triggered warnings about the imminent extinction of humanity. These predictions may be premature, but the value-free, adaptive capacities of artificial intelligence certainly bear watching.

AI Tools in a Law Practice

In addition, as data scientists have pointed out, machine learning can fall prey to common statistical fallacies that produce absurd results. Statistical fallacies are common tricks data can play on us, which lead to mistakes in data interpretation and analysis. AI has no shame, it seems. This is the old garbage in, garbage out issue. Such fallacies include:

  • Cherry picking a data set to produce a desired result;
  • Data dredging, which confuses causation with correlation;
  • Survivorship bias, which draws conclusions from an incomplete set of data
    because that data has survived some particular selection criteria;
  • The Cobra effect, which occurs when an incentive produces the opposite result intended; and
  • Sampling bias, which occurs when the data set is not representative of the population at issue.

The advantage of natural language processing is that it allows individuals searching for a particular term or concept to go beyond traditional Boolean(1) searches. But as many have noted, legal language is different from natural language. For example, conversion under the law is not likely a happy experience. To support the practice of law, attorneys may need a set of AI tools developed specifically by lawyers.

Artificial Intelligence in the Courtroom

Artificial intelligence in the courtroom has significant shortcomings. Existing virtual or augmented reality tools do not appear to be skilled at processing contextual clues such as facial expressions or body movements. For real people, subtle clues around the mouths and eyes weigh heavily in judging whether someone is trustworthy, threatening, or just plain shifty-looking. It is difficult to imagine a robot lawyer doing a competent job of jury selection without human help.

And that, perhaps, is the point of Judge Brantley Starr’s order. To use an analogy, cars with self-driving features still require the presence of a human driver who can, if necessary, override the car’s autonomous features. Judge Starr’s order requires that a human lawyer function in the same way regarding legal work. To push the analogy further, fully autonomous cars may ultimately require a major re-design of our nation’s highways and cities. No one seems eager yet to take this comparison to our legal system.

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(1) Boolean searching is used to help find search results faster and with more precision. Boolean searching uses operators: words like AND, OR, …

Texas Adopts CROWN Act to Address Racial Hair Discrimination

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On May 27, 2023, Governor Greg Abbott signed a new state law in Texas called the Crown Act. Texas now joins 20 other states and many local governments, including Harris County and Austin, in adopting a measure that prohibits racial hair discrimination in Texas workplaces, schools, and public housing. The CROWN Act will go into effect on September 1.

CROWN stands for the actual name of this law, Creating a Respectful and Open World for Natural Hair. It extends statutory protection to hair texture and protective styles such as braids, locks, twists, and knots. In the employment context, the CROWN Act amends Chapter 21 of the Texas Labor Code, prohibiting discrimination in the workplace based on an employee’s style of hair commonly associated with race.

Call an Employment Lawyer at Kilgore & Kilgore

Racial hair discrimination is more than the corrosive collection of petty slights, hostility, and micro-aggressions that black people face every day at work and in school. It can have long-lasting negative effects on mental health and economic well-being. As of September 1, it will be against the law in Texas.

If you experience racial hair discrimination or unequal treatment based on race (including a natural hair style), sex, pregnancy, disability, age, national origin or religion, reach out to us. Click on this link Contact Kilgore & Kilgore. Fill out and submit the form on our website. Or call us at (214) 949-9099. Let us help you set your situation right.

Black Women and Girls are Prime Targets of Racial Hair Discrimination

The statistics are shocking. More than 80 percent of black women report that they had to change their hairstyles just to fit into a workplace. Black women are 1.5 times more likely to be sent home from work because of their hair. And 100 percent of black elementary school girls in majority-white schools have experienced racial hair discrimination by the age of ten.

Young men and boys are not immune from natural hair discrimination either, although statistics are harder to find. We have all heard stories of young black Texans being banned from sports or events like high school graduation unless they cut their hair.

How the CROWN Act Will Work

This remains to be seen. It is important to keep two things in mind right now.

First, the CROWN Act amends three existing laws — the Education, Labor, and Property Codes — to add the legal definition of a protective hairstyle to include braids, locks, and twists. The good news is that the amendments will also expand the definition of discrimination because of race or on the basis of race to include discrimination because of or on the basis of an employee’s hair texture or protective hairstyle commonly or historically associated with race.

The bad news is that amendments to existing laws presumably roll forward any existing caveats, limits, and ambiguities. It is not a blank slate. For example, courts ordinarily give considerable deference to an employer’s safety regulations limiting hair length for those working with dangerous machinery. Employers can also impose dress codes about things like jackets, shoes, or uniform shirts. These rules have run afoul of Constitutional protections, however, when it comes to retail clothing salespeople expected to model a certain look policy that might exclude certain hair styles, or religiously-mandated head coverings. It remains to be seen how natural hair acceptance will fit into these policies.

Schools have traditionally been given quite a lot of latitude when it comes to maintaining a learning atmosphere. This has historically had First Amendment limits. Black arm bands to protest a war were protected. A banner proclaiming Bong Hits for Jesus was not. Will Texas courts treat natural hairstyles as protected speech in a similar conflict between individual rights and the school’s role in protecting students?

Second, the language of the amendments seems narrowly tailored to protect certain traditional black hairstyles, such as braids, locks, knots, and twists. Will these new amendments also protect the employment rights of a black woman who chooses to deal with a medical condition known as alopecia by shaving her head? What about a Pacific Islander football player or a student who identifies as a member of the Cree or Mohave nation who chooses to rock traditional waist-long dreads?

The Proxy War Regarding Racial Hair

The CROWN Act leaves a lot of legal territory to be explored. Natural hair acceptance is about identity. As the United States continues to grow into its multi-racial and multi-ethnic identity, hair is a proxy war. We are not really arguing about braids. We are talking about who we are.

A federal version of the CROWN Act passed the House of Representatives but died in the Senate in 2022. Federal action to amend Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and other education, labor, and housing laws could add some clarity to the situation.

Our Employment Lawyers Fight Workplace Discrimination of Every Kind and Will Defend Racial Hair and Other Discrimination as Employee Rights Under Texas Law

Experience counts with a new law and untested protections from racial hair discrimination. Contact us if you believe that you have been the victim of discrimination, harassment, or other workplace problems, whether these involve natural hair or other facts. Reach out to Kilgore & Kilgore for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. We look forward to hearing from you.

Appeals Court Overturns Court Decision on Wrongful Termination Case of Tenured Female Professor

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In April, the Fifth Circuit of Appeals found that Carolyn Spears, formerly a tenured professor at Louisiana College (LC), had made out a prima facie case of age, sex, and disability discrimination and retaliation which resulted in a wrongful termination by the college. This decision reversed a lower court finding to dismiss those claims and sent the lawsuit back for further hearing. The new definitions created by this decision address an employment practice known as job fractioning. This ploy is sometimes used by employers to defeat employment discrimination claims. No more it seems, at least not in the Fifth Circuit. The facts of this case also highlight what a many-headed hydra an employment claim can be. Fortunately, however, there are increasingly effective ways to fight back.

Kilgore Law Holds Employers Accountable for Wrongful Termination

When you experience job discrimination, wrongful termination, or workplace retaliation, reach out to us. Fill out and submit the form you reach by clicking on this link Contact Kilgore & Kilgore. Or call us at (214) 949-9099. We want to hear from you. For more information on our employment law practice, click this link. Our employment lawyers are experienced with many forms of employee discrimination and retaliation.

What Is Job Fractioning?

An essential part of Spears’ age discrimination claim was evidence that she “was replaced by someone younger or treated less favorably than similarly situated younger employees.” Similarly, her sex discrimination claim required that she show that “the position sought was filled with someone outside the protected class” (i.e., a man). The problem was that her job duties were divided among several people, not all of whom met that requirement. The district court found that “such an action does not constitute replacement.” Spears’ retaliation and disability claims met a similar fate. On appeal, the Fifth Circuit concluded that “spreading out an employee’s job duties amongst other employees may still constitute a replacement of that person for purposes of the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and Title VII of the Civil Rights Act of 1964. (Title VII).”

Wrongful Termination Suits Can Be Complicated

The fact that Spears brought such a variety of claims, involving so many federal statutes (and a collection of Louisiana state laws) indicates what a layered and complicated phenomenon employment discrimination is for those who find themselves on the receiving end. Her story is, by any measure, an employment nightmare.

Spears Lawsuit Background

Carolyn Spears, born in 1941, joined LC’s faculty in the Department of Health and Physical Education in 1977. She was tenured in 1984. In 2007, she executed a Retirement Plan Options agreement, under which she chose to retire by July 31, at least in part to avoid future premium increases. Nonetheless, she continued to teach as a Senior Professor under yearly contracts.

In 2012, Spears with diagnosed with cancer and underwent treatment. The cancer returned in 2014 and she underwent treatment again. She applied for and received long-term and sick leave from LC. The facts are in dispute about whether she notified the human resources department that she did not intend to return.

Separately, she had filed a whistleblower complaint with the EEOC. The college seems to have discovered this complaint by stealth and with the assistance of a private investigator. A colleague who joined in this complaint was fired. There were also religious discrimination claims. LC had recently re-defined its religious mission as Calvinist teaching.

Spears argued that the dispute about her intention to return was a form of retaliation. LC reorganized the department within which Spears had been teaching, demoted her from her previous position as Chair, and reduced her salary. It then declined to renew her teaching contract. Spears was notified that the college was moving in a different direction. She sued. This is not unusual in employment disputes. Often, breakups from long-term jobs look like a nasty divorce.

Be Alert – Notice the Telltale Signs of an Impending Wrongful Termination

Even without overtly racist, sexist, ageist, or religiously bigoted behavior or comments, there are actions about which workers should be alert. In your own job, If you notice any of the actions listed below, it may be time to seek legal advice:

  • Sweetening an early retirement plan option to urge long-time employees out the door is not necessarily despicable, depending on the sweetener.
  • Before you leave the job, while you still have access to your employment records, prepare an analysis of employer actions that affected you or your position. Termination of a long-term worker’s employment, contract or otherwise, should be carefully documented through multiple periodic reviews – conducted at the time, not after the fact. If these records are missing, call a lawyer.
  • A reduction-in-force (RIF) program that targets high-earning individuals, many of whom with long service records, may or may not violate age discrimination statutes. This situation is very fact dependent. These are, not coincidentally, the folks whose health insurance costs may be increasing.
  • Especially when a RIF is a surprise, the option to work on contract may come as a relief, but beware. The hourly rate may be lower than salary, and there are no employee benefits. This also raises the legal question of whether employees are being misclassified as contractors.
  • A constructive discharge may be afoot when an employee’s working conditions are changed in a way that makes performance impossible. Having your office moved far away from co-workers, perhaps to the basement next to the furnace, is a classic example.
  • The moving in a different direction message is generally the kiss of death. The same is true of not a good fit with the team. However, this may be a disguise for prohibited age, gender, disability, race, national origin or religious discrimination, notwithstanding the wide latitude employers get under the employment at-will doctrine. The term looking for a digital native may be a version of age discrimination. The term digital native describes a person who has grown up in the information age.

Many Legal Options for Wrongful Termination Victims

Every situation is different. In Texas, employees have many ways to defend their jobs. Texas and federal statutes, such as Texas Labor Code Chapter 21 and the ADEA, protect against employment discrimination for those over 40. The ADA focuses on the rights of people with disabilities to work with reasonable accommodation. Title VII prohibits a wide variety of forms of employment discrimination, including disparate treatment based on sex, race, ethnicity, and religion, as well as retaliation.

We Have Answers to Your Employment Questions

Our Texas employment lawyers have an impressive depth of experience with employment claims. Contact us if you believe that you are the victim of discrimination, retaliation, wrongful termination, or other workplace problems. Reach out to Kilgore Law for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you to determine whether we can assist with your claims.

New Federal Regulations: Pregnant Workers Fairness Act and PUMP Act Expand Employment Protections for Women

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President Biden recently signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP). Both laws significantly expand federal protections for pregnant and nursing workers. The PWFA will go into effect on June 27, 2023. The PUMP Act took effect on December 29, 2022, but expanded coverage and enforcement mechanisms went into effect only on April 28, 2023. Human resource professionals take note.

Long gone are the days when expectant mothers vanished from their jobs when they started to show. Today, women make up about half of the workforce. More are continuing to work while they are pregnant, and the great majority return to work after pregnancy. Women’s talents can be vital to the success of a company, and their financial contributions are important to their family’s economic security. Human resource professionals should ensure that women’s skills and experience are not lost by their companies through old policies that ignore current laws, attitudes, and the significant contributions women make to the businesses who employ them.

Our Texas Employment Law Attorneys Can Help Everyone Get This Right

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These New Laws Protect Mothers in the Workplace

Both the PWFA and the PUMP Act are built on an existing legal framework of employment protections. The PWFA is modeled after the Americans with Disabilities Act (ADA), but it expands the protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable, temporary accommodations for medical conditions related to pregnancy and childbirth. Additional covered situations might include conditions like pre-eclampsia, severe dehydration, or gestational diabetes.

Employment Law – Reasonable Accommodation Under the PWFA

The process of obtaining a reasonable accommodation begins with a worker’s or applicant’s request for assistance. As with the ADA, the PWFA requires the employer to engage in an interactive process with the employee to find a reasonable accommodation that does not impose an undue hardship on the employer. Reasonable accommodations might include work that does not involve heavy lifting, allowing more frequent bathroom breaks, parking spots that are close to an entrance, and permitting a worker whose job involves standing to sit.

To pursue a claim of violation of the PWFA, an employee must file a charge with the Equal Employment Opportunity Commission (EEOC), which has also been charged with developing further guidance. An employer may not require an employee covered by the PWFA to take paid or unpaid leave if a reasonable accommodation is available. The law also protects covered employees from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation.

Charges may be filed with the EEOC on or after June 27, 2023, about incidents that occur on or after that date, relief is prospective only. After then, relief for private-sector employees may include reinstatement, back pay, front pay, compensatory damages, punitive damages, and the right to recover reasonable attorney fees and costs.

Until then, it is important to realize that pregnant workers can fall between the legal cracks. The ADA does not recognize pregnancy as a disability, although some pregnant workers may have conditions that can prompt negotiations about reasonable accommodations.

The existing federal Pregnancy Discrimination Act protects workers only from adverse employment decisions because of pregnancy. It does not reach the issue of accommodation. Provisions of the Texas Labor Code similarly protect pregnant workers from bias but do not require reasonable accommodations for pregnancy-related medical conditions.

The PUMP Act – Breast Milk for Baby

Baby has now arrived, and mama is back at work juggling conflicting demands. The work that parents do clearly brings benefits to their communities, employers, and families. But not all benefits can be immediately measured in dollars. Some of it is measured in health, even long-term health. According to the Centers for Disease Control:

  • Breast milk is the best source of nutrition for most babies.
  • Breast milk shares antibodies from the mother with her baby.
  • Breastfeeding can reduce the mother’s risk of breast and ovarian cancer,
    type 2 diabetes, and high blood pressure.
  • Breastfeeding can help protect babies against some short- and long-term illnesses
    and diseases including asthma, obesity, type one diabetes, and sudden infant death
    syndrome (SIDS).

The PUMP Act amends the Fair Labor Standards Act (FLSA) to require that employers provide reasonable break times for workers to express breast milk for a full year after the child’s birth. The PUMP Act does not apply to employers with fewer than 50 employees if certain requirements under the law would cause an undue hardship to the employer. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion where a working mother can pump. The pumping time is considered hours worked if the worker is not completely relieved of duty during the entire break. The law extends these protections regardless of whether the worker is exempt from the wage and hour provisions of the FLSA.

Workers may file complaints of violation with the PUMP Act with the U.S. Dept of Labor’s Wage and Hour Division. It is illegal to fire or discriminate against a worker for filing such a complaint. An example of illegal retaliation might include transfer to a lower-paying job because a supervisor complains that the employee’s breast milk pump sessions interfere with a work schedule. A worker may also file a private lawsuit. Remedies may include re-employment, reinstatement, promotion, payment of wages lost, as well as liquidated, compensatory, consequential, and punitive damages.

Check Your Company Policies to Ensure They Conform to the New Laws

Human resource professionals and company managers should review their policies and procedures to ensure they are updated with these new federal laws and make any necessary changes. Managers and supervisors should be informed and trained on how to handle pregnancy accommodation requests and requests to express breast milk in the workplace. This is even more important now that expanded coverage and remedies are in effect.

Our Employment Law Attorneys Have Answers to Your Questions About Protections for Pregnant and Nursing Workers

We understand how difficult it can be to deal with a workplace culture that is slow to adapt to the economic realities of changing employment laws. Both workers and employers have a vested interest in making their relationships work for the success of the organization. To quote the late Paul Wellstone, “We all do better when we all do better.” Reach out to us about new laws that affect the workplace. We know how to take a worker’s legal rights to an employer and settle disputes that arise. Click here to get the conversation started contact Kilgore & Kilgore.

Lawyers Appealing an ADA Disability Discrimination Case Overturn Lower Court Decision

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A discrimination lawyer, in the case of Gosby v. Apache Industrial Services Inc., convinced the Fifth Circuit Court of Appeals to reverse and remand a decision of a lower court, the Eastern District Court of Texas, that had awarded summary judgment to an employer in a lawsuit under the Americans with Disabilities Act (ADA). The District Court had found that the employee failed to establish that her inclusion in a reduction-in-force (RIF) was the result of prohibited discrimination based on disability. The Fifth Circuit’s decision in this case revisits the difficult question of what evidence is enough to show causation. Is the fact that her employment was terminated just days after an incident that highlighted her diabetic condition sufficient to make a prima facie case of discrimination under the ADA?

This is an issue that has troubled Circuit Courts (and those who allege discrimination) since the U.S. Supreme Court’s 2000 decision in Clark County School District v. Breeden. Perhaps the takeaway from Gosby is that there is still no bright line. The constellation of facts in each situation still makes all the difference in a discrimination argument involving an unjust termination.

Our Employment Lawyers Will Help You Understand Discrimination Laws

If you have suffered from discrimination at work, whether based on disability, race, age, sex, or any other protected characteristic, reach out to us. Click on this link Employment Lawyer to learn about our employment discrimination practice. Use this link Contact Kilgore Law to get the conversation started. We offer a free evaluation of your situation to see if we can help.

Facts Matter. Facts May Be Complicated in a Discrimination Case

A discrimination case is rarely clear cut because small and large workplaces are complex societies with lots of crackling and conflicting crosscurrents. The motives for any given employment action may be very mixed. In the Gosby case, Arlicia Gosby had taken a temporary position that was not expected to last beyond six months. Her job involved assembling and disassembling scaffolding. She has diabetes, which is covered as a potentially disabling condition under the ADA. The employer knew about her condition because it was disclosed during a pre-employment exam. The examiner recommended that she not do tasks that involved climbing. It is not clear whether this limitation was ever implemented.

At one point, when Gosby jammed a finger, a co-worker warned her not to visit the worksite medical tent because she would be laid off as a risk. The co-worker was not, however, involved in the decision to terminate her employment. Thereafter, she had a medical incident related to her diabetes. She visited the medical tent and was sent home for the day. She was medically cleared to return to work the next workday, which she did. That day, however, the crew was sent home early for lack of work.

Two workdays later, her employment was terminated as part of a pre-planned RIF. It was far short of the anticipated six-month limit to her job. Although the workers who were laid off were evaluated according to a multi-factor scale, the workers who were retained were not. Gosby sued the company under the ADA, alleging that her inclusion in the RIF was an adverse employment action based on her disability. But for her visit to the medical tent, she asserted, it would not have happened.

Disability Discrimination Law is Complicated

The ADA and Chapter 21 of the Texas Labor Code prohibit employers from discriminating against applicants or employees with disabilities in job application, procedures, conditions, and privileges of employment. Disability discrimination may occur when an employee is terminated, suspended, denied training, denied promotion, or anything else that negatively affects the terms and conditions of employment because the employee is disabled or needs a reasonable accommodation. The process that workers must go through to pursue a disability discrimination claim is set out in the 1973 Supreme Court decision in a case known as McDonnell Douglass v. Green. It has three basic steps.

Step One of a Disability Discrimination Case

First, the plaintiff must make a prima facie case (based on first impression, presumed to be true unless proven otherwise) of prohibited discrimination. This first step involves three issues. The employee must show that he or she:

  • is disabled within the meaning of the ADA;
  • can perform the essential functions of the job with or without reasonable accommodation; and
  • suffered an adverse employment action as a result of discrimination based on the disability.

Returning to the disability case at hand, the first two requirements above were easy to meet. Yes, Gosby had diabetes, which is a condition covered by the ADA, and her employer knew about it. There was no evidence to indicate that she could not perform the essential functions of the job. Yes, the termination of her employment was an adverse employment action. The causation element is thorny though, as is often in an ADA case.

Typically, if an employee cannot satisfy all three elements, the lawsuit is tossed out of court on a summary judgment motion. That is what the Eastern District Court of Texas did, finding the claimant had failed to show that the reason for her termination was her disability. The short timeframe between her diabetic incident and the termination of her job did not, by itself, demonstrate causation.

Step Two of a Disability Discrimination Case

If and only if the lawsuit survives step one, step two offers the employer the opportunity to show that there was a nondiscriminatory reason for the adverse employment action. It might be lack of work, poor performance, preplanned reduction, etc. At-will employment is the rule of thumb in Texas, as it is throughout much of the country. That means that workers can be fired for good, bad, or no reason. This basic rule applies unless the reason runs afoul of contract protections or certain limited federal or state law protections against discrimination. These protections include those outlined in the ADA. We must realize that this may be less a matter for the court system and more for the legislative branch of government which establishes the legal guidelines of new laws.

Step Three of a Disability Discrimination Case

The employee will have the opportunity to demonstrate that the employer’s explanation is a mere pretext. It might be a convenient lie to cover up the real reason. It might be semi-true, but unequally applied. In this case, the Fifth Circuit Court focused particularly on the fact that the criteria for evaluating which workers should be laid off and which should be retained did not seem to have been universally applied. The checklist appeared to have been used only to evaluate whether dismissed workers should be dismissed.

What the Lawyers Did in this Case

Although an intellectual examination of these three steps of showing how employment discrimination looks good on paper, this is not always the way people and courts make decisions. The Fifth Circuit court clearly thought that both the employer’s argument about a pre-planned RIF and the employee’s evidence of her co-worker’s warning about visiting the medical tent, as well as the timing, deserved more exploration.

Reach out to our Discrimination Lawyers

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NLRB Nixes Confidentiality and Disparagement Clauses in Employment Agreements as a Result of a Recent Court Decision

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On February 21, 2023, the National Labor Relations Board (NLRB) held that employers may no longer offer severance agreements with broad confidentiality and non-disparagement clauses to union and non-union employees who are covered by the National Labor Relations Act (NLRA). This recent decision reverses two previous NLRB decisions in 2020 concerning confidentiality and non-disparagement provisions in employment agreements. The decision takes place against a background of increasing legal scrutiny of employment contracts and severance agreements, including non-compete and other restrictive clauses. This leaves employers and employees searching for guidance about what is permitted and enforceable under state and federal law.

Our Employment Lawyers Help Employers and Employees Navigate the Shifting Currents of Employment Law

The Texas employment lawyers at Kilgore Law will help you navigate this evolving legal landscape. Click here to learn more about our legal work employment lawyers. We have been following developments at the NLRB for years, as you can read here NLRB. To get the conversation started about your situation, click on this link to submit your contact information Contact Kilgore & Kilgore.

Covid-19 Layoffs at McLaren Macomb Hospital in Michigan and Related Employment Agreements

Local 40 RN Staff Council, Office of Professional Employees International Union, was the exclusive bargaining representative of roughly 350 employees at McLaren Macomb Hospital in Mt. Clemens, Michigan. In 2020, the hospital permanently furloughed 11 bargaining unit employees in response to the Covid-19 emergency, which forced it to terminate outpatient services. The hospital presented each of the 11 employees with a Severance Agreement, Waiver and Release that offered to pay differing severance amounts to each furloughed employee if they signed it.

Employee Rights Were Restricted by Confidentiality and Non-Disparagement Clauses

The severance agreement in this case included substantial monetary and behavior-restricting sanctions against the employees in the event the non-disparagement and confidentiality clauses were breached. It required these employees to release the hospital from any claims arising out of their employment or termination of employment. It also required these employees to not:

  • disclose the terms of the agreement (with certain limited exceptions); and
  • make statements that might “disparage or harm the image of Employer, its parent and
    affiliated entities and their officers, directors, employees, agents and representatives.”

NLRA Violations

Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.” Together, the two sections protect employees who engage in communications with a wide range of third parties in circumstances where the communication is related to a labor dispute and when the communication is not disloyal, reckless, or maliciously untrue.

The McClaren Macomb Hospital Severance Agreement

The NLRB found that these severance agreements violated Section 8(a)(1) of the NLRA because they required employees to forfeit rights guaranteed and protected under Section 7. It further found that the terms of the agreement and potential financial sanctions were onerous and coercive. The mere offer of the severance agreement violated the law as an attempt to deter employees from exercising their statutory rights. The finding of coercion is central to the decision.

Advice of an Experienced Employment Lawyer

This latest decision of the NLRB explicitly overrules two of its previous decisions in 2020, involving Baylor University Medical Center and IGT dba International Game Technology. In those cases, the NLRB held that merely offering severance agreements did not violate the law because the action was not “coercive.” Those two rulings, according to the NLRB, “abandoned prior precedent in finding that offering similar severance agreements to employees was not unlawful, by itself.” This latest decision, McLaren Macomb, is likely to be challenged in further litigation. Now, however, employers should seek further guidance from employment lawyers. Workers who believe that they were effectively forced into giving up legally guaranteed rights may want to re-open old severance agreements and confidentiality agreements. One striking feature of McLaren Macomb is that it applies to both union and non-union employees.

Time to Review Your Severance Agreements, Confidentiality Agreements, and Employment Agreements

With these new developments, employers and employees should review non-disparagement and confidentiality provisions in severance agreements to ensure that they are narrowly tailored. For employers, it would be good to review the population of employees to whom such agreements are offered in your company. Are these prohibitions necessary or effective to protect an essential business interest? Do they apply only to employees who are not subject to the NLRA? Are they limited in time or geographical areas, as non-compete agreements frequently are? Can any perceived flaws in existing agreements be remedied with disclaimer language that specifically refers to the NLRA? The advice of an experienced employment attorney can be very valuable.

Kilgore Employment Lawyers Can Review Your Employment Agreements

Employers who offer, and employees who are subject to, restrictive provisions in severance agreements would be well-advised to seek advice concerning their enforceability and any potential liability that might arise from overly broad restrictions. Employees should also review their agreements given this recent NLRB ruling. For an evaluation of your situation, reach out to our employment lawyers by clicking on this link and submitting your contact information Contact Kilgore & Kilgore.

FTC Apparently Reaches Its Threshold of Tolerance on Noncompete Restrictions and Introduces New Federal Law

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On January 5, 2023, the Federal Trade Commission (FTC) issued a proposed new rule which could fundamentally upend existing Texas law concerning noncompete clauses in employment agreements. The FTC stated that this action is necessary because noncompete clauses can stifle competition and lower worker wages. The big question is whether this proposed action will achieve the intended outcomes.

The implications of this new rule for executive compensation agreements could be profound. At a virtual forum hosted by the FTC on February 16, 2023, trade groups representing human resources professionals, retailers, health care businesses, asset managers, insurance brokers, and other types of business organizations argued that the FTC proposal is too broad. But the proposal is supported by unions and workers including doctors, nurses, veterinarians, home care workers, and teachers. The ban, they argue, would boost wages and increase competition, thus stimulating the economy. The comment period will remain open until March 20, 2023.

The Supreme Court’s Threshold for Nationwide Rules Proposed by Federal Agencies

Some speculate that, if this rule is adopted by the FTC as proposed, it is nearly certain to face a Supreme Court challenge. In a 2022 case involving the EPA, the Supreme Court handed down a decision that sharply limited the reach of a federal regulatory agency under what the Court termed “the Major Questions Doctrine.”

Separately, in February 2023, a bipartisan group of Senators re-introduced a bill called the Workforce Mobility Act of 2023. This legislation would largely ban the use of noncompete clauses in employment agreements nationwide as a matter of federal law. Does this initiative anticipate a Supreme Court move to strike down the proposed rule if it becomes final?

Contact Our Employment Lawyers for Your Noncompete Questions

To see an article about employment contracts click here Employment Contracts in Texas. To see another article about noncomplete enforceability in Texas click here Noncompete Enforceability in Texas. Prevent legal exposure. Click here to reach out to our employment lawyers contact Kilgore & Kilgore. Now is the time to review your existing noncompete and employment agreements to ensure they are aligned with prevailing law.

Current Texas Noncompete Law

Questions about the enforceability of noncompete clauses in employment agreements have typically been a matter of state law. In Texas, for example, these agreements must comply with the Covenant Not to Compete Act contained in Chapter 15 of the Texas Business and Commerce Code. This law provides that a noncompete agreement is enforceable if it is:

  • part of an otherwise enforceable agreement,
  • supported by adequate consideration,
  • no more restrictive than necessary to achieve legitimate business goal, and
  • sufficiently limited regarding geographic area, time, and scope of activity.

Noncompete agreements are also subject to the Texas Antitrust Act of 1983, which imposes similar requirements. Texas is far less restrictive of noncompete clauses than several states that have banned them completely and others that set income thresholds below which they may not be imposed. As proposed, any new federal rule will supersede all state laws that are inconsistent with its terms, essentially federalizing noncompete law.

Will the Proposed Rule Rescind All Active Noncompete Clauses?

If adopted, the proposed rule will require all employers that use agreements with a noncompete clause to rescind that clause. The ban would also extend to “de facto” noncompete clauses that have the effect of prohibiting workers from seeking or accepting employment or operating a business after their current employment. This may extend to restrictions affecting the disclosure of confidential information and customer non-solicitation restrictions. In the “de facto” category, limits may also include:

  • prohibiting a former employee from doing business with former clients or customers of the employer,
  • prohibiting a former employee from hiring or recruiting a former employer’s worker, and
  • requiring the former employee to pay the former employer a sum of money if s/he engages in certain conduct spelled out in the non-competition clause.

Any provision offered in exchange for the prohibited agreement, (such as severance pay) would, however, remain intact. Employers would be required to communicate individually with current and former employees subject to the banned clause. The proposed rule would not affect:

  • banks, savings and loans, and federal credit unions,
  • common carriers and air carriers, and
  • members of the livestock, meat, and poultry industries who are otherwise
    subject to the Packers and Stockyards Act of 1921.

The proposed rule also contains a sale-of-business exception for individuals with at least a 25 percent ownership stake in the business. It is not yet clear how the proposed rule would affect employee benefit plans or consulting agreements that contain claw back clauses requiring repayment of previously paid compensation in the event of a non-compete breach.

Our Employment Lawyers Can Help With Noncompete Clauses and Employment Agreements

The proposed rule is likely to be modified before either becomes final and, even then, will not take effect until 180 days after publication. It is always wise to position your company to be nimble and anticipate changes imposed by new laws. Human resource professionals, business owners and executives should review their employment agreements and consulting agreements. Our employment lawyers can help you assess your situation and craft the best options for you going forward. Click this link to learn more about our Executive Compensation law practice. Use this link to get the conversation started Contact Kilgore & Kilgore.

Defamation on FINRA Forms U-5 of Financial Advisors in the Securities Industry can be Expunged

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An industry standard known as the FINRA Form U-5 is the personnel report used in the securities business to explain the reason for termination of a FINRA-registered financial advisor or broker-dealer by an employer. The securities industry is regulated by FINRA, the Financial Regulatory Industry Authority, an independent, nongovernmental organization that writes and enforces the rules governing financial advisors, broker-dealers, and securities companies in the U.S.

Under FINRA rules, companies selling securities who employ brokers-dealers and financial advisors must file a FINRA Form U-5 within thirty days of the termination of a registered broker-dealer or financial advisor. If the termination was the result of anything other than the individual’s death or voluntary decision to leave, the reason for the termination by the employer must be explained to FINRA. Such a report is called a FINRA Form U-5. The information on the FINRA Form U-5 is publicly available. Future employers can easily obtain them to learn about potential new hires.

This is where the predicament takes on a more serious consequence for the financial advisor or broker-dealer. Beyond the fact of the termination, negative information about the fired employee’s performance on a FINRA Form U-5 can be career-ending. A negative performance review follows a financial advisor or broker-dealer, particularly in a personal service industry, and may hamper this employee’s ability to find new clients or a new job in the securities industry.

If the reason for a termination is reported by the employer in a false, retaliatory, or an inappropriate manner, it reflects negatively on the reputation of the financial advisor or broker-dealer because it goes to the issue of honesty. Many supervisors take a casual view of the information they report on a FINRA Form U-5, thinking it is a mere nuisance, part of the job, and do not realize the damaging effect of that report. Such a report may render the employee unemployable in the securities industry.

Kilgore’s FINRA Lawyers Can Help Protect the Career of a Financial Advisor or Broker-Dealer

If you have questions about a FINRA Form U-5, how to properly fill one out, or how to correct or expunge defamatory or irrelevant statements on a FINRA Form U-5, we are here to help. Click this link to learn more about our FINRA Law Practice. Click here FINRA Testimonials to read what some clients who we assisted in expunging derogatory FINRA claims said about us. If you wish to proceed with a legal conversion or action of your own, click here, fill out, and send in, this Contact Us form.

False and Defamatory Statements on FINRA Forms U-5 Regarding the Performance of Financial Advisors and Broker-Dealers Have Harmed Their Careers

Several years ago, at the height of the Wells Fargo Bank fake account scandal, that bank fired thousands of retail bank employees for allegedly creating fake applications and bank accounts. Approximately 200 of the fired employees, who were registered with FINRA, claimed that they were fired or pushed to resign after resisting pressure to sell unwanted products to customers and for reporting unethical practices.

Wells Fargo Bank, they claimed, retaliated against them with false and defamatory information on their FINRA Forms U-5. Left unchallenged, those statements could have ended their careers. The U.S. Senate held hearings, FINRA investigated, and the Consumer Financial Protection Bureau (CFPB) ultimately fined Wells Fargo Bank $185 million. Apart from the federal action, this story brings into sharp focus the role that state law plays in Form U-5 defamation lawsuits.

In Texas, defamation occurs when a party makes false statements of fact about a person, product, or business. To win a defamation lawsuit in Texas, an injured person must show that:

  • The defendant made a false statement about the person, business, etc.
  • The defendant communicated that statement to a third party.
  • The employer’s statement caused reputational or material harm.
  • The defendant acted either negligently or purposefully.

Private citizens need not show actual malice, only that the statements under review were negligent. In other words, a defendant like a broker-dealer must take “reasonable care” to find out if the statements made were the reasons for termination of employment were true or false. It is important to keep in mind, though, that defamation laws in each state have developed under slightly different precedents, so it is wise to work with someone specifically versed in Texas law when pursuing a Texas defamation case.

The Rumor Mill and the FINRA Form U-5

Consider the case of Mel Schonhurst. He was a managing director, financial advisor, and successful bond executive with RBC Capital Markets. Unsubstantiated allegations appear to have cost him his job and reputation. RBC terminated his employment after an industry publication, The Bond Buyer, named him in connection with a federal investigation at RBC.

His FINRA Form U-5 report noted that RBC was informed by an FBI agent that Mr. Schonhurst was the subject of an investigation. This report created the impression that the FBI had evidence linking him to a public corruption and bribery scandal in the bond market in El Paso. He was never charged, and the investigation was closed. Thereafter, he was unsuccessful in gaining new employment in the bond industry. More than seven years after his wrongful termination became a matter of public record, Mr. Schonhurst obtained a FINRA arbitration award that ordered RBC to amend its FINRA Form U-5 filing on him to correct the information by adding a statement indicating that no charges arose from his employment with RBC.

FINRA Arbitration Rules and Processes

As an independent industry organization, FINRA provides an arbitration forum and code of procedure for dispute resolution and brings disciplinary actions for violations of its rules. FINRA normally prefers arbitration over litigation. Consequently, most FINRA Form U-5 defamation claims are resolved through arbitration before a specialized, private forum of typically three individuals.

Potential claimants should be aware that the processes and procedures of arbitration are different from what most people know about litigation. It is a very specialized area. Among the disadvantages of this approach is that the decisions of the arbitrator panel generally do not create legal precedent. They may be kept secret. They do not apply to collective or class actions. They are difficult to appeal – which is even more incentive to get it right at the beginning.

On the other hand, the panel of arbitrators is fully familiar with FINRA rules and processes. The arbitration forum may also order expungement of disparaging information and correction of the record of a financial advisor or broker-dealer. This can revive a damaged career. The payment of compensatory damages to repair the financial harm wrecked by the defamation can help set this person up for future success. Still, these remedies cannot give back to the financial advisor or broker-dealer who was harmed the success s/he experienced before.

Reach out to our FINRA Lawyers for FINRA Form U-5 Defamation Assistance

If you believe that the information your previous employer submitted on your FINRA Form U-5 is false and defamatory under Texas law, call us to discuss your situation. We understand the economic impact of defamation can be devastating to careers in securities. We have helped many broker-dealers and financial advisors turn their lives around. Although every situation is different, expungement, correction of the record, and compensatory damages are possible. We offer a free evaluation of the facts of your case. Use this link Reach Out to Us to get the conversation started.

Justice for Car, Truck, Motorcycle, Bicycle, Pedestrian Accidents and Personal Injury Victims in Texas

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A personal injury lawyer can help people who have been harmed by the negligence of others in all kinds of situations – car, truck, motorcycle, bicycle accidents, etc. Such cases may include construction accidents, falls, wrongful death, work injury, just to name a few. Many people may not have thought about how to make the most of a personal, professional relationship with a lawyer. But it becomes necessary when hiring a lawyer.

As of the end of 2022, there will have been roughly 7,000 vehicle accidents in Texas, the most in the country. This is nothing to brag about. But even this staggering number barely captures the grief, physical harm, and financial toll of car, truck, motorcycle, bicycle, and pedestrian accidents.

If you or a loved one has been involved in a serious accident, your first concern should be your health, and we hope, your recovery. But the bills can pile up quickly, life may never go back to what it was before, and evidence can be lost. Reaching out to an experienced personal injury lawyer can help you concentrate on healing, as you should. When hiring a lawyer, it is important to do some homework so that you have information about the lawyer and law firm with which you will be working. It is often important to act quickly before crucial evidence is lost or the time limit on filing a lawsuit expires. Depending on the kind of injury you or a loved one has suffered, the time limit can be very short.

Call Our Texas Personal Injury Lawyers

If you have been injured in any kind of accident, reach out to us as soon as you can. An initial evaluation of your case to see if we can help will cost you nothing. Just click on this link to get the conversation started contact Kilgore & Kilgore. To learn more about out our personal injury practice, click this link Car and Truck Accidents. We focus on the big picture of helping you and your family find your way through a tough time.

Get Medical Care Right Away So You Have a Concurrent Medical Treatment Record

Even if you do not think you are hurt, go the hospital to get checked over. You might be saving yourself from further harm. Some injuries, like those sustained in a car, truck, motorcycle, and bicycle accidents, may not be immediately obvious. Furthermore, linking medical expenses to your accident may be difficult without concurrent medical records.

What to Do Right After an Accident

You have probably known most of these tips since your first driver’s education course. But these things are important, so that they bear repeating. Stay at the scene of the accident, but out of traffic. Call the police. Call 911 if anyone is injured. Collect the names and contact information of all the drivers affected. If you are able, take photos or videos of the accident scene, injuries, debris, skid marks, road signs. Stay away from social media.

When you are injured in an accident from which you hope for reimbursement of medical care bills or money, you should carefully assemble and organize as much evidence as possible. Get receipts for payments you made in connection with the accident. All types of information are important, including medical treatment records, witness contact information, insurance policies, and insurance coverage documents.

Get the Right Legal Help for Your Personal Injury

Avoid spinning your wheels and get on track early by interviewing and hiring a personal injury lawyer as soon as possible after the accident. Reputation and expertise matter. If you know someone who has been injured in a similar situation, ask for a recommendation. A solo practitioner or a newly minted lawyer might not have the depth of experience or resources of an attorney who practices with other lawyers in a law firm. As Abraham Lincoln allegedly said, “A man who represents himself has a fool for a client.” If, for example, you are suing the driver from a large interstate truck company, you should assume that they have a big, sophisticated law firm at the ready. You or your cousin Vinnie could find yourselves seriously outgunned.

Talk About the Money Upfront

Many law firms do not bill for an initial consultation. Some charge a fee, however, so be sure to ask. Personal injury lawyers commonly charge on a contingency basis. If you recover nothing, you will owe them nothing except possibly the cost of certain out-of-pocket expenses. If you do recover something, your lawyer will be entitled to a portion of it.

The Legal Process

If the lawyer you hired is unable to resolve your claim upfront, a lawsuit is the next step. A lawsuit begins with the filing of a complaint with the court. The complaint will set out your injuries, both physical and financial, how else you may have been harmed, and why you believe the other party is at fault.

Thereafter, both sides will begin to collect evidence to support their side of the argument. This stage is known as “discovery” and may involve conducting depositions (interviews conducted under oath), gathering evidence including medical care records, reports of expert accident investigators, financial records, and so on.

When discovery is complete, settlement negotiations may begin in earnest. Such negotiations often involve insurance companies. Keep in mind that settlement involves compromise, and the sign of a good compromise is that neither party is completely happy. Many personal injury lawsuits end with a settlement.

For those that do not, the next step is a trial. After the trial, either party may file an appeal and, depending on what issues are involved, the court’s decision on appeal may also be appealed.

Contact Us Regarding Your Accident and the Final Resolution

Reach out to Kilgore Law for a free review of the facts of your case. Click here to get the conversation about your situation started contact Kilgore & Kilgore.

New Federal Law Helps Victims of Unjust Termination, Workplace Harassment, and Sexual Assault

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Previously, many workers who have suffered from unjust termination, sexual harassment, and sexual assault were limited in court with their employee lawsuits by pre-dispute non-disclosure and non-disparagement contract clauses in employment contracts. A new federal law called the Speak Out Act has been passed by Congress and was recently signed into law by President Biden. This law prohibits the use of non-disclosure and non-disparagement agreements (collectively NDAs) to silence employees who have suffered from sexual harassment or violence in the workplace. This new law adds to the protections already afforded employees under federal and Texas law, but it has limits, which workers should understand.

The Speak Out Act Prevents Courts from Enforcing NDAs in Employee Lawsuits

This new law focuses on disputes where a worker alleges assault or sexual harassment. The law also applies to non-disparagement clauses in sexual assault or harassment cases, which includes any agreement that requires a worker to refrain from negative statements about the employer. Importantly, however, this new law stops only the enforcement of those NDAs signed before a dispute arises – not afterwards. If, for example, an employee was pressured into a secrecy agreement after a sexual assault, the Speak Out Act would not apply.

Many employee lawsuits that allege sexual harassment or assault settle before trial, which is understandable from the point of view of either an employer or an employee who wants to avoid negative publicity. But an employee’s agreement to remain silent about the alleged mistreatment is often part of the deal that is ultimately negotiated. The Speak Out Act permits confidentiality agreements that prevent one or both parties from revealing information about the claim or the settlement.

There are pros and cons to this exception. Settlement generally benefits both parties. But secrecy may leave other employees vulnerable. To be frank, employees need to know what the dangers are to protect themselves.

The law does not affect NDAs that are intended to protect trade secrets and proprietary information. Texas law is generally protective of an employer’s right to protect this information. The Speak Out Act does not apply to proprietary information.

It is also not entirely clear whether the law applies to former employees, prospective employees, and outside contractors. It also speaks of disputes without defining the term. Critics have suggested that this new federal law simply codifies existing legal rules that protect a victim’s right to report a violation of criminal law.

Other Employment Lawsuits Ignored by the Speak Out Act

Others suggest that the new law creates a specially privileged set of rights that leaves out victims of other kinds of discrimination, harassment, and assault. Consider the plight of those whose work lives are made miserable because of racial, national origin, or disability harassment. “Why not me?” is a legitimate question in the face of these kinds of harassment.

It is also true that sexual harassment may be only a part of a pattern of behavior that includes other forms of discrimination, retaliation, and breach of contract. The precise contours of the new law have yet to be fully defined. In fact, though, those contours may matter less than immediately meets the eye because of other employment discrimination protections that already exist.

The Full Picture of Worker Rights Produces Safety and Security

The collection of expanded legal protections for employees may seem piecemeal. When they are taken as a whole, however, they add to the safety and security of Texas workers and the remedies they may have available. The Speak Out Act is only the most recent addition to a collection of existing laws that protect worker rights. Both Title VII of the federal Civil Rights Act of 1964 and Chapter 21 of the Texas Labor Code protect Texas employees from employment discrimination based on sex or sexual harassment.

In March 2022, Congress enacted a law which prevents employers from enforcing pre-dispute arbitration agreements without the employee’s consent in cases involving sexual harassment and sexual assault. For a variety of reasons, arbitration often does not produce satisfactory results for employees. Since then, employers have not been permitted to require employees to arbitrate claims of sexual harassment or sexual assault. Employment lawsuits that are not strictly sexually based may still have to be arbitrated.

Effective September 2021, Texas employees who work for businesses with fewer than 15 employees have remedies for sexual harassment under Section 21.141 of the Texas Labor Code. Prior to that date, Texas employees who worked for very small companies had more limited protections.

Employment Lawsuit Definitions Redefined in Texas

In 2021, the Texas legislature also expanded the definition of employer. In this context, the term also includes a person who acts directly in the interests of an employer in relation to an employee. The law may cover harassment if it is done by an outside contractor or a fellow employee. Now supervisors, managers, HR professionals, other employees and third parties may be named individually as defendants in an employee’s sexual harassment complaint and be held personally liable for damages if they failed to respond to complaints or to deter illegal behavior in the workplace.

Our Employment Lawyers Will Help You With Workplace Sexual Harassment or Assault Problem

Our employment lawyers understand how difficult it is to deal with job-related harassment, discrimination, violence, or any number of other unfair and illegal situations at work. Contact us when workplace difficulties arise to learn if you have a legal case. Click here to get the conversation started contact Kilgore & Kilgore. Or call us at (214) 949-9099. We are here for you.

Here is More Information on Sexual Harassment and the Law

To learn more about recent changes in sexual harassment cases, click here Forced Arbitration. To read about sexual harassment cases in Texas, click here Texas law. For a general overview of Kilgore Law’s employment practice click this link Protect Your Dignity or Employment Law.