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

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

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

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

Employee Classification May Stymie Overtime Protection

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

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

Understanding Employee Rights With Kilgore & Kilgore

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

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

The FLSA (Fair Labor Standards Act) and Overtime Wages

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

Who is an Exempt Employee Without Overtime Protections?

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

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

Department of Labor History

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

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

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

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

Preparing for DOL Wage Changes and Overtime Protections

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

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

Reach out to Kilgore & Kilgore Employment Lawyers for Legal Help

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

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

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

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

Discriminatory Scheduling Policies Based on Sex

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

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

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

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

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

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

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

The Fifth Circuit Changes Its Mind on Title VII Discrimination

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

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

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

Gender Bias in the Workplace

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

Objective Harm in the Workplace

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

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

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

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

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

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

Groff Decision on Religious Accommodation

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

Employment Rights Versus Employer Responsibilities

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

Our Employment Lawyers Have Answers About Religious Accommodation and Employment Rights

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

In Groff, the Religious Accommodation Request Was Denied

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

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

A Look at Undue Hardship and “de Minimus”

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

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

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

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

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

What Can HR Management Do?

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

Step one: Assess the Situation

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

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

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

Step two: Document and Quantify

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

Contact Our Employment Lawyers Regarding Workplace Discrimination

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

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

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

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

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

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

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

Age Discrimination on the Field of Dreams

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

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

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

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

Age Discrimination and Workplace Discrimination Violates Texas and Federal Law

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

Texas Is Employment-at-Will, with Exceptions

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

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

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

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

What Happens When You Lose your Fastball?

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

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

We Have Answers to Your Questions About Employee Rights

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

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

The human touch defines how we work. Our commercial, business, personal injury, and employment litigation lawyers use sophisticated technology tempered by human intelligence. Yes, we use leading-edge AI tools. Yes, our legal staff of real people is ready to talk with you. At Kilgore, you can rely on quality legal representation in Texas. We are humans serving humans. Call us at (214) 969-9099. You can also reach out to us with this link Contact Kilgore Law to use an online form to submit through our website to get the conservation started.

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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Our Texas litigators will help you assess your legal situation and advise you on how best to tackle your legal issue. We are a technically sophisticated firm with a human touch and human intelligence. To learn more about us, click this link Personal Injury. We offer a free evaluation of the facts of your case. To get this process started, call us at (214) 949-9099 and speak with a real person. You may wish to contact us through our website using this link Contact Us to get the conversation started.

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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

Reach out to our experienced employment lawyers to ensure that your employment status is protected and/or for compliance advice to companies. Click here, fill out and submit the form you see to Contact Kilgore & Kilgore. Or call us at (214) 949-9099. To learn about our employment law practice, click this link Employment Law.

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

Our employment lawyers have years of experience with a wide range of employment disputes in Texas. If you have a complaint against an employer, we can help you get justice. Use this link to reach us Contact Us with your questions and concerns.

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.