Texas Employee Rights
By Danny Wash
Two areas have been in the news relating to overtime pay for employees.
The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked.
The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). Here and here are postings by a law firm blog discussing in more detail and criticism of certain court rulings concerning the FWE.
The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.
October 28th, 2013 Comments Off
By Danny Wash
The Health Insurance Portability and Accountability Act (HIPAA) does not contain any express language conferring rights to sue upon a person or employee if the privacy regulations are violated. The Fifth Circuit in Acara v. Banks, 470 F.3d 569 (5th Cir., 2006) held that HIPAA does not provide a private cause of action to an individual for privacy violations but that Congress left the enforcement of the law to the Secretary of Health and Human Services. Therefore, an individual or employee who believes their privacy rights under HIPAA have been violated would need to file a complaint with said agency. Here is where you may find information on filing a complaint.
An individual may still have a common law suit for invasion of privacy for the unauthorized revelation of medical information; however, this would be separate and not involve any HIPAA protections or violations.
September 18th, 2013 Comments Off
By Danny Wash
Many people confuse the term “right to work” with “employment at will”. I hear a lot of people say that Texas is a “right to work” state and what they mean to say is that Texas is a state in which you can be fired at will. The term “right to work” state actually means that a person has the right to work at a company that has a union without having to be a member of the union. Without a the right to work law, a so-called “union shop” company could refuse to hire or be forced to hire only union employees. The right to work law does not prevent a company from having a union or union employees, it just simply means that a non-union person can still work at the company, if the company wants to otherwise hire that person.
August 8th, 2013 Comments Off
By Danny Wash
The Family Medical Leave Act (FMLA) is a great benefit for employees who are eligible and comply with the rules of the law. However, some people have the erroneous impression that they can’t be fired when they are under “doctors care”. This is absolutely wrong and believing this urban legend can get you fired. While the FMLA helps an employee out with some beneficial rules, it has a rule called “medical certification” that if ignored by the employee will cause you to lose your FMLA protection for your leave. Even if the doctor and you notify the employer that you are off with an illness that you and he believe are covered by the FMLA, if the employer sends the doctor a “medical certification” allowed by 25 CFR 825.313 (b), the doctor still must comply with the request. The doctor must fill out the medical certification and return it to the employer within 15 days. Now, here is the big catch- It is your duty as the employee to see that the medical certification is filled out properly and returned timely! Even if it is the doctor’s fault, the mailman’s fault, or the dog ate your medical certification; it is still your fault that it did not get back to the employer on time and you lose your FMLA leave protection thereby letting the employer off the hook and free them up to fire you (there is an exception is it was not “practicable due to extenuating circumstances” to return it within 15 days but this is living dangerously to depend on this exception). So, be persistent and forceful with the doctor and his staff to get the certification done and then you make sure its either timely mailed or you deliver it yourself (or someone on your behalf). I know this doesn’t seem fair but sometimes life isn’t fair and we have to accept it and follow the rules.
July 23rd, 2013 Comments Off
By Danny Wash
Vance v. Ball State University, U.S. Supreme Court, No. 11-556, Decided 6/24/13
University of Texas Southwest v. Nassar, U.S. Supreme Court, No. 12-484, Decided 6/24/13
EEOC v. Houston Funding II, LLC, 2013 U.S. App. LEXIS 10933; May 30, 2013
El Paso County Juvenile Board v. Aguilar, 387 S.W.3d 795 (Tex.App.-El Paso 2012)
El Paso County v. Kelley, 390 S.W.3d 426 (Tex.App.- El Paso 2012)
Armendariz v. Redcats USA, L.P., 390 S.W.3d 463 (Tex.App.-El Paso 2012)
Lotito v. Knife River Corporation-South, 391 S.W.3d 226 (Tex.App.- Waco 2012)
Echostar Satellite LLC v. Aguilar, 394 S.W3d 276 (Tex.App.-El Paso 2012)
July 10th, 2013 Comments Off
By Danny Wash
The Fifth Circuit Court of Appeals has ruled in EEOC v. Houston Funding II, Ltd. that the plaintiff should receive a jury trial on whether the company violated the Pregnancy Discrimination Act (PDA) and Title VII, when she requested the right to use a breast milk express pump at work and was fired. The plaintiff was an employee who gave birth and was on leave for the birth. She was breast-feeding the baby at home and, in order to continue the feeding and return to work, she needed to use a breast pump at work. The company was reluctant to oblige and when she pushed the issue they fired her allegedly for other reasons. She sued in federal court and the company convinced the judge to dismiss her case. She appealed to the Fifth Circuit, which has the reputation of being hostile to employees. However, in this case, the panel came down on the side of the employee holding that she should get a jury trial on the issue. The Fifth Circuit stated that “The PDA provides that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions[.]” 42 U.S.C. § 2000e-(k). The court went on to use the dictionary definition of “medical condition” and state that “given that this definition includes any physiological condition, it is difficult to see how it could not encompass lactation.” The court stated that lactation is a normal aspect of female physiology that is initiated by pregnancy and concludes sometime thereafter. Therefore, the court held that lactation is an aspect of female physiology that is affected by pregnancy and seems readily to fit into a reasonable definition of “pregnancy, childbirth, or related medical conditions.” The court further held that “because discriminating against a woman who is lactating or expressing breast milk violates Title VII and the PDA, we find that the EEOC has stated a prima facie case of sex discrimination with a showing that Houston Funding fired [plaintiff] because she was lactating and wanted to express milk at work.”
June 6th, 2013 Comments Off
By Danny Wash
The Texas Supreme Court is once again “tinkering” with the proof necessary to recover mental anguish damages. Although the case involved defamation, in Hancock v. Variyam, the court revisted the necessary amount of proof to support damages for mental anguish. This is important to employment cases because they frequently involve an attempt to recover mental anguish damages and frequently fail for insufficient proof. The court has in the past set forth the requirement that in order to recover mental anguish a plaintiff must show evidence of a substantial disruption in daily routine or a high degree of mental pain and distress. Also, the plaintiff must additionally show the nature, duration, and severity of the mental anguish. The court had laid down these requirements in earlier cases. However, in the Hancock case the court showed in a negative manner how the plaintiff had not provided enough evidence of mental anguish. If you are a lawyer representing plaintiffs you should put a copy of the case in your notebook in order to review all of the necessary requirements with your client to determine if the mental anguish claimed will pass the rather high standard of the court. Also, you should talk with your client about the level of necessary proof so that the appropriate level of proof and words may be presented at deposition and trial, if the proof and words are true. Many times the appropriate emotions and interference with the plaintiff’s life is present but is not effectively presented because of insufficient preparation or just the inability of the client to express the level of mental anguish. It may be that others (such as a spouse or friend) can express the necessary evidence better than the client. The problem with the Supreme Court’s insistence on the high level of “magic words” and testimony necessary to clear the high hurdle the court has erected is that it ignores the problem of people who are not very expressive or have difficulty talking about their emotions. The court seems to ignore the role of a jury in assessing the demeanor of the plaintiff regarding the mental anguish and penalizes the ones who are not able to express themselves orally very well. In that event, it makes it even more important to some how convey the level of suffering by other means, either spouse, friends, or a counselor.
May 17th, 2013 Comments Off
By Danny Wash
As a consumer or employee, I wanted you to know about this so I have reproduced the following article by Jim Hightower of AlterNet.org.:
Being wronged by a corporation is painful enough, but just try getting your day in court. Most Americans don’t realize it, but our Seventh Amendment right to a fair jury trial against corporate wrongdoers has quietly been stripped from us. Instead, we are now shunted into a stacked-deck game called “Binding Mandatory Arbitration.” Proponents of the process hail it as superior to the courts — “faster, cheaper and more efficient!” they exclaim.
But does it deliver justice? It could, for the original concept of voluntary, face-to-face resolution of conflict by a neutral third party makes sense in many cases. But remember what Mae West said of her own virtue: “I used to be Snow White, then I drifted.” Today’s practice of arbitration has drifted far away from the purity of the concept.
All you really need to know about today’s process is that it’s the product of years of conceptual monkey-wrenching by corporate lobbyists, Congress, the Supreme Court and hired-gun lobbying firms looking to milk the system for steady profits. First and foremost, these fixers have turned a voluntary process into the exact opposite: mandatory. Let’s look at this mess.
— Unlike courts, arbitration is not a public system, but a private business.
— Far from being neutral, “the third-party” arbitration firms are — get this! — usually hand-picked by the corporation involved in the case, chosen specifically because they have proven records of favoring the corporation.
— The corporation also gets to choose the city or town where the case is heard, allowing it to make the case inconvenient, expensive and unfair to individuals bringing a complaint.
— Arbitrators are not required to know the law relevant to the cases they judge or follow legal precedents.
— Normal procedural rules for gathering and sharing evidence and safeguarding fairness to both parties do not apply in arbitration cases.
— Arbitration proceedings are closed to the media and the public.
— Arbitrators need not reveal the reasons for their decisions, so they are not legally accountable for errors, and the decisions set no legal precedents for guiding future corporate conduct.
— Even if an arbitrator’s decision is legally incorrect, it still is enforceable, carrying the full weight of the law.
— There is virtually no right to appeal an arbitrator’s ruling.
That adds up to a kangaroo court! Who would choose such a rigged system? No one. Which is why corporate America has resorted to brute force and skullduggery to drag you into their arbitration wringer.
By “force,” I mean practically every business relationship you have with a corporation (customer, employee, supplier, etc.) begins with you blindly signing away your right to go to court. Written in indecipherable legalese, these sneaky provisos are usually secluded in the tiny-type of pre-printed, take-it-or-leave-it, non-negotiable contracts.
By “you,” I mean everyone one of us who: takes a job, gets a credit card, subscribes to cable TV, buys an insurance policy, rents an apartment, purchases nearly any new product (from cellphone to house), has a home remodeled or car repaired, enters a nursing home, becomes a franchisee or corporate supplier or signs up with a landscaping service.
If you seek justice because you’ve been gouged by your bank, discriminated against, sexually harassed, unfairly fired, cheated on wages, sold a shoddy product, denied health care coverage or otherwise harmed by a corporation, you’ll most likely find that you’re barred from the courthouse door. That document you unwittingly signed has shackled you to the corporation’s own privatized court.
Since binding mandatory arbitration “agreements” are written by corporate lawyers, it’s no surprise that they stack the deck in favor of corporations. But — wow! — the percentage of rigged wins is disgusting.
For example, Public Citizen found that one giant firm, the National Arbitration Forum, heard over 34,000 consumer-versus-bank cases in California. It sided with financial giants 95 percent of the time. Even more astonishing, the city of San Francisco found that of the 18,045 cases brought by banks and other powers against overmatched California consumers, NAF’s private judges sided with the corporations 100 percent of the time.
March 29th, 2013 Comments Off
By Danny Wash
Americans with Disabilities Act Disability (as amended by ADAAA) means-
A Physical or Mental Impairment that Substantially Limits one or more of the
Major Life Activities (MLA) or being
Regarded As having such an impairment or
A Record Of such an impairment.
Definitions/explanations of the above terms:
Physical or Mental Impairment means a physiological or mental disorder, cosmetic disfigurement, or anatomical loss affecting a body system or mental disorder or disability, emotional/mental illness, & specific learning disabilities.
Substantially Limits to be construed broadly in favor of coverage and is measured against ability of an individual to perform as compared to most people in the general population.
Major Life Activities are activities such as caring for oneself, manual tasks, numerous bodily operations, and working. Also, operation of a major bodily function or an individual organ. “Major” shall not be interpreted strictly.
Determination of whether impairment substantially limits a MLA shall be made without regard to effects of mitigating measures. An impairment that is episodic or in remission is a disability if it qualifies when active.
The following impairments will almost always result in coverage: deafness substantially limits hearing; blindness limits seeing; intellectual disability limits brain function; autism limits brain function; cancer limits normal cell growth; diabetes limits endocrine function; multiple sclerosis limits neurological function; depression, PTSD, obsessive compulsive disorder limits brain function.
Considering the manner, condition, or duration of performing the MLA, as opposed to general population, should be done to determine a disability. The focus is on how a MLA is substantially limited and not on what outcomes a person can achieve. For example, someone with a learning disability may achieve a high level of academic success, but may be substantially limited because of the additional time and effort involved compared to general population.
Regarded As (RA)- A person is RA if the person is subjected to a prohibited action because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits, or is perceived to substantially limit a MLA. A person is RA any time an employer takes a prohibited action against the person because of an actual or perceived impairment, even if the employer asserts, or may or does establish a defense to such action.
Record Of (RO)- A person needs a written record of an impairment to qualify.
(This is a brief explanation and for a more expansive explanation please consult the EEOC website for further clarification)
February 27th, 2013 Comments Off
By Danny Wash
The Department of Labor released a new interpretation and clarification of the definition of “son or daughter” under Section 101(12) of the Family and Medical Leave Act (FMLA) as it applies to an individual 18 years or older and incapable of self-care because of a mental or physical disability. The FMLA entitles an eligible employee to take up to 12 workweeks of unpaid, job-protected leave during a 12-month period to care for a son or daughter with a serious health condition. The FMLA defines a “son or daughter” as a “biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—(A) under 18 years of age; or (B) 18 years of age or older and incapable of self-care because of a mental or physical disability.” However, in order to meet the FMLA’s definition of a “son or daughter,” an adult child (i.e., one who is 18 years of age or older) must have a mental or physical disability and be incapable of self-care because of that disability. The FMLA regulations adopt the ADA’s definition of “disability” as a physical or mental impairment that substantially limits a major life activity (as interpreted by the EEOC) to define “physical or mental disability.”
A parent will be entitled to take FMLA leave to care for a son or daughter 18 years of age or older, if the adult son or daughter:
It is only when all four requirements are met that an eligible employee is entitled to FMLA-protected leave to care for his or her adult son or daughter.
Based on the purpose of the FMLA, the legislative history of the definition of “son or daughter,” and WHD’s enforcement experience, as well as the example in the preamble to the 2008 FMLA Final Rule, it is the Administrator’s interpretation that the age of onset of a disability is irrelevant in determining whether an individual is a “son or daughter” under the FMLA. An employee is entitled to take FMLA leave to care for a son or daughter with a serious health condition who is 18 years of age or older and incapable of self-care because of a disability regardless of when the disability commenced.
Therefore, for a parent to take FMLA leave for an adult child, the son or daughter must not only be incapable of self-care due to a disability but must also need care due to a condition that qualifies as a serious health condition under the FMLA regulations. While the adult son or daughter’s serious health condition need not be directly related to his or her disability, the same condition may satisfy both the ADA definition of disability and the FMLA definition of serious health condition.
The interpretation by the Department of Labor gives two helpful examples in order to understand these rules:
Example 1: An employee’s 37-year old daughter suffers a shattered pelvis in a car accident which substantially limits her in a number of major life activities (i.e., walking standing, sitting, etc.). As a result of this injury, the daughter is hospitalized for two weeks and under the ongoing care of a health care provider. Although she is expected to recover, she will be substantially limited in walking for six months. If she needs assistance in three or more activities of daily living such as bathing, dressing, and maintaining a residence, she will qualify as an adult “daughter” under the FMLA as she is incapable of self-care because of a disability. The daughter’s shattered pelvis would also be a serious health condition under the FMLA and her parent would be entitled to take FMLA-protected leave to provide care for her immediately and throughout the time that she continues to be incapable of self-care because of the disability.
Example 2: An employee’s 25-year old son has diabetes but lives independently and does not need assistance with any ADLs or IADLs. Although the young man’s diabetes qualifies as a disability under the ADA because it substantially limits a major life activity (i.e., endocrine function), he will not be considered an adult “son” for purposes of the FMLA because he is capable of providing daily self-care without assistance or supervision. Therefore, if the son is admitted to a hospital overnight for observation due to a skiing accident that does not render him disabled, his parent will not be entitled to take FMLA leave to care for him because he is over the age of 18 and not incapable of self-care due to a mental or physical disability.
If the son later becomes unable to walk and is also unable to care for his own hygiene, dress himself, and bathe due to complications of his diabetes, he will be considered an adult “son” as he is incapable of self-care due to a disability. The son’s diabetes will be both a disability under the ADA and a chronic serious health condition under the FMLA because his condition requires continuing treatment by a doctor (e.g., regular kidney dialysis appointments). If his parent is needed to care for him, his parent may therefore take FMLA-protected leave to do so.
January 16th, 2013 Comments Off