kaplan-law

Take Control of Your Career: How Kaplan Law Can Help When Work Goes Wrong

Wed, 01 Jan 2025 16:30:21 GMT

Sometimes, when companies mistreat their employees, it goes beyond just legal violations—it becomes personal. They make you feel like you're bad at your job, and it gets in your head. It can really take an emotional toll, leaving people upset and doubting themselves. This is where we step in, offering more than just legal advice—we help clients regain control over their situation.

One of the most rewarding aspects of what we do is seeing the transformation in our clients. By the end of a consultation, many say, “I feel like I’m back in the driver’s seat of my career and my life.” It’s empowering to give people clarity, even in a single hour, by breaking things down into clear categories.

We’re there to help them make informed decisions and move past a bad situation toward something better. It’s about getting unstuck and reclaiming control. Helping clients in this way is truly an honor—it feels amazing to collaborate and make a real difference in their lives.

When things start going wrong at work, it can feel overwhelming. There’s often a mix of problems—some that look bad but aren’t actionable and others that may involve real legal violations. That’s where we come in. We help cut through the fog, sorting out the issues into clear categories:

What’s unfair but not illegal.
What is illegal and actionable.
What steps you can take, potential outcomes, and damages you might expect.

Our goal is to guide clients to the next step as efficiently as possible, ideally with more clarity, confidence, and money in their pockets.

We’re not career coaches, but we do offer strategic planning for people who feel stuck. It’s important to understand that if your company is taking advantage of you, they likely have lawyers advising them on how to do it. You don’t want to be caught flat-footed. That’s why having your own lawyer, even for just an hour-long consultation, is invaluable.

We make this process easy. You can book online and often get an appointment as soon as the next day. During the consultation, we’ll assess your situation, explain your rights, and provide actionable next steps. Sometimes, clients find out that what’s happening isn’t illegal, but we still offer practical advice to put them in the best possible position.

And let’s be honest—most people have a story about a time they wish they had consulted a lawyer. Even I was misclassified and underpaid before law school and didn’t realize it. I signed documents without understanding my rights, and I missed out. That experience inspired us to create a system where anyone can access a lawyer quickly, affordably, and with peace of mind.

Not every consultation leads to a legal claim, but the information and strategy you gain are always valuable. Even if the issue isn’t illegal, knowing your options can help you move forward with confidence.

So, if everything at work is great, you probably don’t need us. But if things are going wrong, and you’re relying on advice from non-lawyers, random people on the internet, or just your gut, you might be missing something critical. Our service is unique—we’ve built it specifically to help current employees navigate these challenges and take back control of their careers.

That’s how we approach these situations. It’s not just about the immediate fix—it’s about bringing years of expertise to the table so our clients can move forward with confidence and success.

A Guide for Sales Employees Facing Unfair Treatment

Sun, 15 Dec 2024 14:58:59 GMT

Almost every salesperson knows the drill: if your commission isn’t paid, you email, call, or escalate the issue to HR or your manager. You make a fuss and try to get the money you’re owed. Unfortunately, in states like Texas, there’s little protection if you’re fired for speaking up. Shockingly, it’s not illegal in many cases.

Most people try to handle it themselves, which is understandable. But if that approach doesn’t work, and there’s a significant amount of money at stake, it’s time to consult an attorney. A lawyer can review your situation and help determine if your rights have been violated. For example, if your commission was withheld under a discretionary commission plan, there may not be a strong case. However, there could be other legal violations—like unpaid overtime—that you’re unaware of. In fact, we often uncover additional issues during our consultations, making it worthwhile to check in with a lawyer.

One common mistake we see is people relying on advice from unqualified sources. Sales workers often turn to LinkedIn or other platforms for guidance, listening to "talking heads" offering free advice. The problem? Most of these individuals aren’t attorneys, and their advice is often incomplete or outright incorrect. This misinformation can lead to missed opportunities for salespeople to recover what they’re owed.

Even at Kaplan Law, we don’t offer cookie-cutter advice. Each case requires a detailed analysis to understand how the law applies to your specific circumstances. That’s why taking the time to consult with a qualified attorney is critical.

To put it in sales terms: there’s a lot of money on the table, and sales professionals are leaving it there by not seeking proper legal guidance when something feels off. If you suspect a problem with your pay or treatment, consulting with an experienced lawyer can make all the difference in getting what you deserve.

If you’re a salesperson who feels mistreated or underpaid, here are the steps you should take:

Understand Your Pay Structure: Review your employment contract, commission plan, and any policies regarding overtime or bonuses.
Track Your Hours: If you’re inside sales, document the hours you work, especially overtime, to identify potential violations.
Keep Records of Communication: Save emails, texts, and other documentation related to commission disputes, quotas, or workplace grievances.
Know Your Rights: Learn about your protections under the FLSA and local labor laws.
Consult an Attorney: Reach out to a law firm experienced in employment rights. We can help assess your case and guide you through your legal options.

Why It Matters

Sales employees deserve to be compensated fairly for their hard work. Companies that exploit their sales teams not only violate the law but also undermine the value of their workforce. In Austin, where tech companies frequently relocate for cost savings, ensuring fair treatment for sales employees is more important than ever.

If you’re a sales professional facing unfair pay or workplace mistreatment, know that you don’t have to face it alone. We’re here to fight for your rights and help you get the compensation and respect you deserve.

Fighting for Fair Pay: Advocating for Sales Employees' Rights

Mon, 02 Dec 2024 18:07:44 GMT

Sales employees play a critical role in generating revenue for their companies. Yet, far too often, they are undervalued, overworked, and unfairly compensated. At our firm, we’ve seen countless cases where salespeople are promised fair pay—only to face broken promises, discrimination, or outright exploitation.

Sales teams face unique challenges, from unrealistic quotas to retaliatory treatment when they stand up for their rights. In our work, we’ve had significant success in helping sales employees who’ve been wronged. Whether it’s recovering unpaid commissions, addressing overtime violations, or challenging discrimination, we’re here to ensure salespeople are treated fairly under the law.

The Challenges Sales Employees Face

Breach of Commission Contracts or Incentive Plans:

We've noticed as a team that one major problem that is occurring for sales employees is companies are breaching their commission contracts or incentive plans. Many sales roles include a base salary plus commission. However, when it comes time for companies to honor their incentive plans, the promised commissions often vanish into "fine print." Companies frequently make earning commissions unnecessarily difficult, leaving salespeople shortchanged for the revenue they helped generate. We believe this is where we can truly make a difference for people. At Kaplan Law, we know the law and have many tactics in our toolkit to resolve these issues without litigation whenever possible. However, when litigation becomes necessary, we’ve had significant success, securing favorable outcomes for our clients.

Overtime Violations:

Shockingly, many salespeople don’t realize they’re legally owed overtime pay if their base salary outweighs their commissions. Many companies have adjusted their job descriptions to clearly classify employees as hourly roles with overtime, aiming to avoid the additional costs associated with overtime pay that commission-based employees are often entitled to. At Kaplan Law, we have brought numerous cases against various tech companies, including TikTok. When the sales force operates on a base-plus-commission structure, but w base salary exceeds the commission for inside sales roles, it violates labor laws. This practice is not allowed, and we’re committed to holding companies accountable.

There seems to be a significant misconception about employment laws among both workers and management in the sales industry. Unfortunately, management often takes advantage of this misunderstanding. They might offer a high base salary with commission but then make earning that commission exceedingly difficult. While employees are led to believe meeting their targets will be straightforward, the reality is far more complicated. Companies often shift the burden onto employees, expecting them to work long hours—nights, weekends, early mornings—sacrificing personal time and family moments like attending their kids' games, all to close sales. Yet, despite the grueling hours, employees don't receive additional pay for their efforts.

This creates a frustrating situation. While sales employees may earn decent pay, it’s often not proportional to the time and energy they invest. Oddly enough, we’ve noticed that employees struggling to meet their numbers often end up working the longest hours, trying desperately to catch up. And companies? They’re fine with it, as it costs them nothing extra. If this were a clerk or hourly employee, the law would mandate overtime pay for those additional hours. Under the Fair Labor Standards Act (FLSA), employees are entitled to overtime, yet many companies in the sales industry fail to comply.

At Kaplan Law, we’re one of the leading firms tackling these issues. One particular area we focus on is what’s known as the 7(i) exemption under the FLSA, which governs how sales employees are compensated. Many salespeople don’t even realize their rights are being violated. That’s why we ask crucial questions when they reach out: How are you paid? How many hours do you work? Does your base salary exceed your commission? Are you predominantly working inside sales?

In today’s world, most sales work is done remotely—via Zoom, WebEx, phone calls, or emails—whether from home, an office, or another location. Face-to-face sales interactions, such as meetings with customers at bars or restaurants, have become increasingly rare. This shift to inside sales has led to countless violations of labor laws, but few workers are aware of the problem.

At Kaplan Law, we take pride in educating and supporting our sales clients. We understand the challenges they face—the relentless pressure to perform, the "what have you done for me lately?" mindset of many companies, and the lack of recognition for their efforts. Salespeople can bring in millions for their employers one quarter, only to face unreasonable demands the next.

We’re here to help sales employees fight back, protect their rights, and ensure they are paid what they’re owed under the law.

Discrimination and Retaliation:

Sales employees are often subjected to unfair treatment, such as being penalized for taking medical or parental leave or being discriminated against based on pregnancy, age, or other protected statuses.

Burnout and Underappreciation:

Sales is a high-pressure field with demanding hours, yet companies often fail to recognize the toll this takes. Many salespeople work weekends, late nights, and holidays, only to face relentless pressure for results without fair compensation for their efforts.

Our Commitment to Sales Employees

At our firm, we specialize in protecting the rights of sales professionals. We’ve successfully resolved cases where companies failed to pay commissions, misclassified inside sales roles to avoid paying overtime, and mistreated employees who stood up for their rights.

We understand the unique challenges of the sales profession. The pressure to deliver, combined with a lack of job security, can leave even the best salespeople vulnerable. We’re here to level the playing field, holding companies accountable and ensuring fair treatment for hardworking sales teams.

Fighting for Fairness: Austin Kaplan’s Commitment to Workplace Justice

Thu, 21 Nov 2024 16:18:11 GMT

Growing up, I always had the idea that I would become a civil rights lawyer. But as I dove deeper into the field, I realized that the role of a civil rights lawyer is not always clear-cut. I found myself asking, “What exactly is a civil rights lawyer?”—and discovered that it’s an open-ended question with many layers. It turns out that one of the most significant areas of civil rights law is employment law, and it’s rooted in Title VII of the Civil Rights Act of 1964, a landmark piece of legislation signed by President Lyndon Johnson. This law has shaped civil rights litigation across the country and remains a vital tool for ensuring workplace protection, where its impact is most prominently felt.

To make a meaningful impact on civil rights, you often work through employment law to safeguard those rights. Many times, this involves individual cases where a person’s rights have been violated—whether they’ve been sexually harassed, wrongfully terminated after taking medical leave, or discriminated against due to pregnancy. Each case is important, with its own significant impact on civil rights, helping to ensure that laws are upheld, and people’s rights are protected. At Kaplan Law, we are proud to represent individuals whose rights have been unjustly infringed upon.

However, we don’t just represent individuals. When the right case arises, we advocate on behalf of groups of workers who have been collectively wronged. Whether it's a company laying off older employees in waves or denying overtime pay to its entire workforce, we take on these cases with the goal of securing fair treatment for all those affected. Civil rights law, particularly in the workplace, is a powerful tool to ensure fairness and justice for workers, and we're here to help make that happen.

At our law firm, we’re committed to fighting for the rights of individuals, especially those who are mistreated at work or have their civil rights violated. As a civil rights firm, we believe in the power of working people and are dedicated to championing the underdog. Our mission is simple: to make a meaningful difference in the lives of those who have been taken advantage of by corporations, companies that break the rules, or those who fail to treat their employees fairly.

Our team of attorneys shares a common vision to empower people in their fight against unethical practices, whether it’s not paying workers properly, ripping off taxpayers, or violating the law. In a perfect world, this wouldn't be necessary, but we’re here to make sure those who have been wronged get the justice they deserve.

Worker Adjustment and Retraining Notification Act (WARN)

Mon, 01 Jul 2024 19:31:10 GMT

The WARN Act plays a vital role in safeguarding the rights of workers. It ensures that employers cannot carry out significant workforce reductions without providing at least 60 days’ advance notice and appropriate compensation.

But far too frequently, companies fail to provide the required notice before plant closures and mass layoffs, leaving workers not only unemployed but feeling betrayed and exploited.

However, in the face of an unforeseen plant closure or mass layoff, affected employees have recourse to protect their rights. They have the option to pursue legal action, such as filing a lawsuit, in order to recover the rightful back pay they are owed. This avenue empowers employees to defend themselves against the negative consequences of such sudden and disruptive employment events.

What is the WARN Act?

In the event of an impending closure or mass layoff, the WARN Act provides employees the opportunity to search for alternative employment while still receiving compensation.

The WARN Act, passed in 1988, safeguards workers and their families by mandating that companies with 100 or more employees give 60 days’ notice before any closures or mass layoffs.

Additionally, WARN stipulates that employers must notify the state-dislocated worker unit, the chief elected official in the area, as well as the employee’s representatives (e.g., a labor union) of any closures or mass layoffs. In addition, employers who fail to send notice of layoffs or plant closures to a division of local government can incur a $500 civil fine per day of noncompliance.

What types of layoffs fall under the jurisdiction of the WARN Act?

Plant closures
Mass layoffs (e.g., a large-scale RIF or layoff)

What’s considered a plant closure under the WARN Act?

The WARN Act defines a plant closure as an employer closing a location or operations unit at a certain employment site, resulting in at least 50 full-time employees being laid off or terminated.

What’s considered a mass layoff under the WARN Act?

Under the WARN Act, a mass layoff occurs when an employer terminates 50-500 full-time employees within a 30-day period of time. The number of laid-off employees must reflect at least one-third of the total number of full-time employees at a particular employment site.

A mass layoff also arises automatically when a business lays off 500 or more full-time workers at a given location within 30 days, regardless of workforce size.

What are the exceptions to the WARN Act?

The WARN Act contains three major exceptions. The 60-day notice requirement may be waived for employers who can establish that layoffs or plant closures are the results of a “faltering company, unforeseen business circumstances, or natural disasters.”

Faltering company. This applies to plant closures and covers situations where a company aims to find new capital and/or business in an effort to stay open but believes giving advance notice of closure would undermine that effort.

Unforeseeable business circumstances. This applies to closures and mass layoffs caused by unforeseeable business problems that occurred at the time notice would otherwise have been due.

Natural disaster. This applies in circumstances where a business closure or mass layoff takes place as an immediate result of a natural disaster, such as a hurricane, earthquake, drought, etc.

In such cases, the WARN Act mandates companies to offer their employees as much warning as feasible. The notices must provide a brief justification for the reduced notice period when they are issued, and the notice must be in writing.

Who is protected under the WARN Act?

Those protected under the WARN Act include:

Full-time employees who work 20 or more hours a week and have been with said company for a minimum of 6 months,
Hourly and salaried employees, and
Managerial and supervisory employees.

WARN applies to private, for-profit, and nonprofit workplaces, as well as quasi-public organizations. However, federal, state, or local governmental organizations that provide public services do not have protection under WARN.

Are remote workers covered under WARN?

Remote workers are eligible to WARN Act protections as long as they fulfill the requirements of those protected under the Act (see section above).

Are temporary workers covered under WARN?

Employees contracted with the awareness that their position would be temporary are not covered under the WARN Act. Therefore, temporary employees are often unprotected.

What states are protected under the WARN Act?

All 50 states are protected under the federal WARN Act.

Many states, however, have their own state-specific WARN Act laws that oftentimes offer employees more protections than the federal WARN Act.

These states include:

California
Illinois
Maryland
New Jersey
New York
Tennessee

While the states listed above have their own versions of the WARN Act, Texas does not offer its own state-specific statutes.

What type of notice is an acceptable form of notice?

WARN stipulates that “any reasonable method of delivery… designed to ensure receipt of notice” is an appropriate form of notice.

Examples of the appropriate forms of notice include:

Email
First-class mail
Hand delivery or in-person delivery

What type of notice is not an acceptable form of notice?

Through workplace gossip
Private work chats (slack, messenger, etc.)

What if I was on vacation during the official notice?

If you were out sick, on vacation, or not on-site during the official notice of layoffs, you are owed the same warning as every other employee.

What about my benefits?

Companies who violate WARN may be held accountable for back pay and benefits, such as the cost of health insurance, to each affected employee for up to 60 days.

Should I sign a severance agreement?

In situations that involve plant closures or mass layoffs, companies may provide their employees with alternative severance agreements. Since these severance agreements are not required by law, employers can and do trick employees into waiving their WARN rights for payments of less than the 60 days they are owed.

We recommend that all employees stay actively aware of what they are signing and consult with legal experts, such as those here at Kaplan Law, prior to signing a severance agreement.

Who is responsible for notice in the event of a sale of business?

When a business is being sold in whole or in part, the following conditions must be satisfied under WARN.

If the sale of business results in plant closures or mass layoffs those protected under the WARN Act (see section above titled “Who is protected under the WARN Act?”) must be given a minimum of 60 days’ notice by the seller.
If the sale does not lead to a covered plant closing or a mass layoff, no notice is necessary.
Any plant closures or mass layoffs that take place after the date/time of the sale must be disclosed by the buyer.

Amazon Warehouse Workers Fight Back

Mon, 01 Jul 2024 15:34:15 GMT

Warehouse and logistics providers including Amazon and XPO have been on the receiving end of lawsuits recently.

The claims alleged include unpaid overtime, wrongful termination, disability discrimination, and even wrongful death . In October, eBay filed a lawsuit against Amazon alleging Amazon has a scheme to steal its top sellers. While this particular lawsuit features two billion-dollar juggernauts going head-to-head, these other lawsuits are by former Amazon employees.

The most recent incident involving Amazon regards an issue of religious discrimination. As reported by Gizmodo , a protest arose in the small town of Shakopee, Minnesota after allegations that Amazon was restricting the religious freedom of its workers in that warehouse, many of whom are Muslim. As previously mentioned, Amazon’s strict productivity rules often restrict people from even going to the restroom, let alone making time for prayer. The protest aimed to pressure Amazon to improve working conditions and allow for religious expression for their workers in the warehouses. Another goal of the protest was to push Amazon to create a fund that addresses racial disparities in the community and implement an independent review body for HR complaints.

Rumors are swirling regarding Amazon distribution factories and their conditions. Senator Bernie Sanders took direct aim at the Jeff Bezos-owned company over these workplace conditions. Sanders pointed out bad working conditions and low wages and introduced a bill to force companies like Amazon to pay their workers higher wages. One in three Amazon workers is allegedly on food stamps, and the company employs over half a million people, many in low wage positions.

After these allegations about workplace conditions began, writer James Bloodworth went undercover to work at a distribution facility. In his article for The Guardian, Bloodworth, who had worked at a warehouse prior, stated that this warehouse was different: “this was a workplace environment in which decency, respect, and dignity were absent.”

Bloodworth goes on to discuss the policies in place at Amazon that lead many workers to avoid going to the restroom and using a bottle instead. Employees are scared to take bathroom breaks for fear of not meeting productivity goals.

Another rumor circling about Amazon is its poor treatment of employees injured on the job that need to take leave or take time off. Bloodworth discusses Amazon’s point system, which allegedly gives disciplinary points to a worker every time they miss productivity targets or clock in late. He states that even talking to co-workers could result in receiving a point. Six points results in termination. On one occasion, Bloodworth was sick and notified the job that he would not be in that day due to illness. He was given a point despite giving prior notification and despite what could have been a valid justification.

In another article by The Guardian, injuries are the main focus. The article alleges that employees who are hurt on the job are often left without pay and often, without jobs. Amazon made the National Council for Occupational Safety and Health’s “dirty dozen” list of the most dangerous places to work in the United States. The company made the list due to its alleged reputation of unsafe working conditions and its alleged emphasis on productivity over safety. The company has simply responded to these allegations by stating that they are “proud” of their safety record.

In Texas, state and federal law generally prohibit treating employers from taking adverse employment actions against employees because of their disabilities , because they are regarded as disabled, or because they filed a worker’s compensation claims for injuries sustained in the workplace. Disabled or injured employees have the right to be safe and secure in their work. When employers do not follow the law, legal recourse may be appropriate.

What is USERRA?

Sat, 15 Jun 2024 19:23:46 GMT

The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits discrimination in the workplace based on a person’s intention to join the uniformed services, current service in the armed forces, or former service in the uniformed services.

Retaliation by an employer against an employee who attempts to uphold their own or others’ rights under the Act is also forbidden. USERRA grants reemployment rights with the employer after service-related leave. In general, the armed services employee has the right to be rehired with the same seniority, status, and wage as if they had been working continuously throughout the time. Unfortunately, USERRA does not mandate that employees receive compensation for their time off for military service. In other words, USERRA provides job protection for service members to take leave, but by default that leave is unpaid. There is one exception: courts have determined that USERRA mandates that employers pay workers for military leave if the leave closely matches other types of leave for which workers are compensated. If, for example, your company provides unlimited PTO for all leaves of absence except military service leave, you may be entitled to recover pay for your military service leave under USERRA. This is because USERRA prohibits treating service members less favorably than other employees.

What are my rights under USERRA?

You and your civilian employer both have responsibilities to address upon your return to work. If your military obligation is the reason you are absent from civilian employment, you should be eligible for reemployment if:

You gave your employer at least 30 days notice prior to your military service;
You are not away from work for more than 5 years with certain exceptions; and
You were not separated from the military with less than honorable conditions.

When you return to work you should be treated as though you had not been away for military service. In this sense, USERRA leave functions similarly to FMLA leave.

What qualifies as a USERRA violation?

You likely have a USERRA claim when you face any form of employment discrimination on the basis of military service. USERRA prohibits employment discrimination on the basis of military service or obligation. It also serves to protect uniformed service members’ reemployment rights when returning from a period of service. USERRA is partially administered through the U.S. Department of Labor (DOL) Veterans’ Employment and Training Service (VETS), but private attorneys can and do assist servicemembers and veterans with filing claims when their employers violate their USERRA rights.

What happens if your boss violates your USERRA rights?

If you feel like your rights have been violated under USERRA, you should contact legal counsel. We understand that returning to civilian work after deployment or mobilization can be a stressful process. The USERRA attorneys at Kaplan Law Firm are ready to help.

What Military Leave does USERRA cover?

USERRA applies to both voluntary and involuntary service, across both peacetime and times of war, and covers almost all civilian employers, including the federal government, state and local governments, and private employers of all sizes. In other words, unlike Title VII and many other employment discrimination statutes, USERRA applies to employers with less than 15 employees. Your civilian employer must grant your service leave and return you from it as though you never left the job. Upon your return from deployment or mobilization, you are entitled to the same benefits, seniority, status, and pay as other coworkers who did not take leave.

What does USERRA discrimination look like?

Common types of USERRA employment discrimination include: not being fairly considered for a job because you may have military obligation, your military duties conflict with the job’s working hours, or because you may be deployed for extended periods of time. For example, some Texas employers talk up hiring veterans but dock veterans’ pay, cut their rates, and re-assign their best commission-earning clients when the time comes for deployment. Some Texas employers will fire or layoff veterans simply to avoid the scheduling and backfilling required to cover for leave. These are some examples of likely USERRA violations.

I returned from deployment, what next?

When the time comes to return to your civilian job, make sure you know your reemployment rights. Under USERRA, your employment rights are generally protected while performing military service. This statute helps service members retain their employment and benefits as they come back from deployment, and it ensures that service members are not discriminated against or otherwise disadvantaged on the basis of their military service. You are eligible for USERRA if your reasons for leaving civilian employment are related to service in the uniformed services, whether it was voluntary or involuntary.

How do I submit an application for reemployment?

For service under 31 days: The service member must return at the beginning of the next regularly scheduled work period on the first full day after being discharged from the service. Your civilian employer must take into account safe travel home plus an eight-hour rest period.

For service greater than 30 days but less than 181 days: the service member must submit an application for reemployment within two weeks of release from service. If you were gone for more than 180 days then your application for reemployment should be submitted within 90 days.

Although this application for reemployment does not need to be in any particular format, the Department of Defense (DOD) recommends that it be in writing to best protect all parties involved should a dispute arise or if your civilian employer requests verification (§ 1002.85). Your application should indicate the following:

You are returning from military duty.
You are seeking reemployment.

Additionally, your civilian employer must promptly reemploy you upon your return from a period of service, assuming that you meet USERRA’s eligibility requirements. Under most circumstances, reemployment should occur within two weeks of your application for reemployment.

Med Spas in Texas

Sat, 01 Jun 2024 19:17:56 GMT

The Shady Practices That Make Shady Med Spas

Med spas have become increasingly popular in Texas as more and more people seek cosmetic treatments without undergoing invasive procedures. While many med spas operate with integrity, some, unfortunately, take shortcuts that violate Texas laws, putting their customers and employees at risk.

What is a Med Spa?

A Med Spa combines a conventional day spa and a medical clinic. While day spas are limited to relaxation including massages, facials, and body therapies, med spas involve non-surgical and non-invasive treatments such as micro-needling, laser skin resurfacing, and hair removal.

Who Can Own a Med Spa?

In Texas, because med spas are medical practices they must adhere to state laws governing professional entities. These laws dictate that only physicians can be the rightful owners of medical practices, with certain exceptions granted to podiatrists, chiropractors, optometrists, and in some cases, physician assistants. Consequently, nurse practitioners and unlicensed individuals are prohibited from entering into partnerships with physicians for med spa ownership.

Furthermore, med spas can only be legally structured as professional limited liability companies (PLLC) or professional associations (PA), precluding them from adopting the forms of corporations or regular limited liability companies (LLC).

Who regulates Med Spas in Texas?

External regulation: Medical spas in Texas are subject to strict oversight by regulatory bodies such as the Texas Medical Board, the Texas Department of License and Regulation, the Texas Department of State Health Services, and federal agencies. These regulators actively crack down on non-compliant med spas.

Internal regulation: Since a licensed physician must supervise Nurse practitioners and physician assistants (“midlevel practitioners”). The physicians are given the title of Medical Director who, just as in a hospital, is responsible for all medical protocols and policies.

How do med spas violate Texas Laws?

One way that med spas in Texas violate the law is by employing unlicensed practitioners to perform medical procedures such as Botox injections and laser treatments. A valid medical practitioner’s license is required for these procedures as it ensures that practitioners have met the state’s standards of competency through proper education and training. Licensing helps protect patient safety by ensuring adherence to professional standards and ethics. Adhering to the legal requirement of employing licensed practitioners demonstrates a med spa’s commitment to quality care and most importantly, patient safety.

In Texas, only licensed physicians can order or perform medical procedures without supervision. Nurse practitioners and midlevel practitioners must be supervised by a licensed physician as required by the Texas Medical Practice Act and the rules of the Texas Medical Board.

In a notable case, a supervising physician for a med spa discovered that the clinic had employed a registered nurse (RN) to “order” and administer Botox injections without the necessary supervision. Upon learning of this violation, the physician promptly resigned from the clinic and reported the incident to the Texas Medical Board. As a result, the Texas Medical Board took action and imposed civil penalties against the clinic.

Moreover, Med spas can violate regulations by offering unauthorized procedures that are beyond the scope of their licensing. While they may provide non-surgical treatments like facial rejuvenation and non-invasive body contouring, surgical procedures such as liposuction, breast augmentation, and facelift surgeries require specialized training and qualifications.

Consequences

Growing at the rate that they are, it is concerning if med spas are not complying with legal and ethical standards. They must comply with a range of laws and regulations related to medical procedures. Failure to meet these requirements can result in significant consequences for all parties involved.

Consequences for Employers:

Employers who neglect their legal responsibilities in med spas may face legal actions and potential lawsuits from employees, customers, or regulatory authorities. These repercussions can include fines, penalties, loss of reputation, and even the possibility of closure or loss of business licenses.

Consequences for Employees:

When employers fail to ensure proper training and licensing for employees, it puts the employees themselves at risk. Unqualified employees may face disciplinary action, legal consequences, and damage to their professional reputation. In some cases, they may also face personal liability for any harm caused to customers due to their lack of competence or negligence.

Consequences for Customers:

Customers who seek treatments or procedures in med spas that do not comply with legal responsibilities face significant risks. They may experience physical injuries, infections, or other adverse effects due to the negligence or incompetence of improperly trained or unlicensed practitioners. In such cases, customers have the right to pursue legal action against the med spa for compensation, and the spa may be held liable for the damages caused.

While med spas can provide valuable services to customers, some med spas in Texas take shortcuts. Med spas that violate guidelines can face serious consequences. Customers and employees alike should be vigilant in choosing med spas that operate with integrity and comply with all Texas laws and regulations related to medical procedures.

Have a possible case?

Reach out to an employment attorney in your state or contact us here at Kaplan Law Firm for a free online case evaluation to help figure out the best course of action for your case.

Silence For Severance No More

Wed, 15 May 2024 19:13:55 GMT

The National Labor Relations Board recently ruled that employers may not provide employees with severance agreements that would require them to broadly renounce their rights under labor laws.

What is the NLRB?

The National Labor Relations Board was founded via the National Labor Relations Act of 1935, which was created to encourage collective bargaining by protecting workers’ freedom to unionize and to prevent and correct unfair labor practices that are carried out by unions and employers within the private sector.

The independent federal agency’s main objective is enforcing the National Labor Relations Act which safeguards workplace democracy by giving most private sector employees the freedom to demand better working conditions and choice of representation without the worry of reprisal.

Previous Law

Until Tuesday, February 21st, 2023, most severance and employment settlement agreement proposals contained standard confidentiality and non-disparagement restrictions, which generally prohibited employees from both discussing what caused the separation and speaking negatively of their former employers. According to two previous NLRB decisions, offering severance agreements to employees with these terms was lawful in and of itself.

New Law

That changed on Tuesday when the NLRB issued a decision in McLaren Macomb holding that employers may not offer employees severance agreements that require employees to broadly waive their rights under the NLRA. Specifically, the decision notes that simply offering severance agreements with broad confidentiality and non-disparagement terms to employees constitutes an attempt to deter employees from exercising their statutory rights under Section 7 of the NLRA . In the growing age of social media, it is important to note that Section 7 not only protects employees’ rights to communicate with coworkers but also outside communications to the media, social media, the legislature, etc. that are intended to improve working conditions.

In a statement on the NLRB’s website , the current chair of the NLRB Lauren McFerran said “It’s long been understood by the Board and the courts that employers cannot ask individual employees to choose between receiving benefits and exercising their rights under the National Labor Relations Act.” Due to this understanding, the Board reexamined these two Trump-era decisions and concluded that they unlawfully restricted and violated workers’ labor rights by giving employees the impression they had no other choice but to accept severance agreement offers that included confidentiality and non-disparagement restrictions.

What’s Next?

This change in understanding of the NLRA’s worker protections will likely give workers grounds to push back on severance agreements that contain any non-disparagement provision and perhaps even some confidentiality provisions (except for the limited employers not covered by the NLRA such as government, agricultural, and airline employers).

2022 Twitter Layoffs

Wed, 01 May 2024 19:09:23 GMT

What if all the minority and female employees on my team got laid off, and they kept only my white male coworkers?

This may constitute illegal race discrimination, even in the context of a layoff. Multiple federal and state laws prohibit this, including Title VII of the Civil Rights Act of 1964, The California Fair Employment and Housing Act (FEHA), and Section 1981 of the U.S. Code, which prohibits discrimination on the basis of race and provides for individual personal liability for decision-makers who do so.

The same bias that unfortunately makes women and minorities more vulnerable to layoffs to begin with often plays out in whether they secure counsel to represent them in these matters. The truth is the barriers to finding an attorney are low: employment attorneys can often handle matters like this on contingency, meaning laid off workers don’t pay out of pocket to have a lawyer in pocket.

What if there are no criteria in selecting who was and was not laid off?

It is an absolute best practice to lay out and stick to predetermined criteria in selecting who will and won’t be cut. Companies that fail to do this, as it appears Twitter may have, are more likely to see illegal bias and prejudice corrupt the layoff selection process.

NEW UPDATE:

Early reports suggest women and minority workers may have been disproportionately impacted by layoffs at Twitter. Sadly, this is not surprising and nothing new in large layoffs, but the law prohibits using gender, race, national origin, and other protected categories as motivating factors for inclusion in reductions in force. In other words, if the purchasers of Twitter were motivated to include more women and minorities in this layoff because of who they are not what they do, they may have violated state and federal law. A reminder here that signing any standard severance agreement will waive rights to hold companies accountable for violating laws against race and gender discrimination. Accepting pay in lieu of notice for purposes of WARN compliance, however, will not waive those rights. Under Title VII of the Civil Rights Act of 1964, employees who were discriminatorily placed in a layoff have up to 300 days to file a claim with an administrative agency like the EEOC, and such claims can be brought on a class-wide basis if the facts support it.

UNEMPLOYMENT UPDATE:

For Texas Twitter employees, we expect unemployment will work as follows: you would first be qualified for benefits as of your last day of employment, January 4, 2023. That is because the WARN payments would constitute wages in lieu of noticed under Section 207.049 of the Texas Unemployment Compensation Act. If you sign the waiver in exchange for an additional severance payment, you should still be entitled to unemployment benefits for January, because of a little-know TWC regulation that states payments in exchange for a waiver of civil rights claims do not offset against unemployment benefits. The analysis can be complicated, so we suggest consulting with a lawyer for legal advice on these issues.

UPDATE:

Apparently 50% of the workforce is included in the layoff.

Twitter has also apparently delivered WARN notices to affected employees dated 11.4.2022, and will be providing full pay and benefits during the required 60 day notice period, meaning the official separation date for employees will be January 4, 2023. The company is calling this a “non-working notice period” and affected employees will not have access to company systems, but will be required to comply with all policies, handbook (at Twitter, the Playbook), and code of conduct.

Severance

The company in its FAQ states it intends to provide proposed severance agreements within one week that will provide for an additional single month of base pay (or OTE for commission based employees) in exchange for release of all claims. The FAQ does not state the company will, as it has said in the past and reconfirmed in the merger agreement, honor its commitment to allow affected employees to vest in February – a significant transfer of wealth from affected families to the purchasing entity. We expect this will be the battlefield between Twitter and the 50% of its workforce that is now departing.

ORIGINAL POST:

On Friday November 4, 2022, Twitter began what we expect to be one of the largest layoffs in the history of the tech industry. Thousands of high-performing employees and their families will be affected. In layoffs like this, it is critical that each and every affected employee knows their rights before they sign any severance paperwork.

There is a lot everyone does not yet know about this fast-moving situation. Most of the key public information is summarized here: https://www.nytimes.com/2022/11/03/technology/twitter-layoffs-elon-musk.html

Just after midnight eastern time, it appeared from information publicly available that certain Twitter employees were already locked out of their user accounts from remote. Others expect to be frozen out in the morning, and those affected expect to be notified by email to their personal email on Friday.

WARN Act

Mass layoffs where more than a third of a large company is laid off at once are covered by the federal WARN act. That law requires employers to provide either 60 days of notice before layoffs are effective, or to pay 60 days of pay and benefits in lieu of notice. No waiver or signature is required of the employee, this is simply what the law requires the employer to do.

Severance Package Rights

Aside from the WARN requirements, it is standard practice for companies to offer severance packages to laid off employees. Those packages are usually standardized, and involve a formula for calculating severance pay based on length of service (e.g., four weeks for every year of service). The reason for offering severance packages to laid off employees is twofold: for the employee it provides a valuable bridge of pay and benefits while you search for your next job, and for the employer it provides both legal cover in the form of a waiver of claims from all employees who sign, and sends a signal to any prospective hires that they care about employees including those who, by no fault of their own, are separated.

Is a severance required by law? Generally no. However, when a company promises a severance, or institutes a plan providing for a severance, or makes an agreement to provide a severance, it may be bound to provide it. From the publicly available documents, it appears that Twitter and its purchasers agreed in the merger agreement, in Section 6.9, to pay severance benefits no less favorable than those applicable immediately prior to the merger.

What were the severance benefits applicable immediately prior to the merger? The New York Times reports “Twitter workers are typically paid at least two months’ salary and the cash value of equity they were scheduled to receive within three months of a layoff date.”

How much are employees owed if Twitter’s pre-existing severance plan is used?

If Twitter’s plan is enforceable, employees would be entitled under it to the cash value of equity they were scheduled to receive through February, not just the equity vested in November (and presumably paid out on Friday to all without having to sign any further agreements).

What severance packages will the purchasers offer the thousands of Tweeps affected?

We don’t know yet as of late Thursday night. WARN requires a minimum payout of 60 days compensation and benefits, but that is already required by law and does not require employees to sign a waiver of rights that a standard severance would include. Will Twitter follow its own stated policies and provide at least the cash value of equity due to vest within three months of November 4?

How long will we have to consider the severance package offer?

We don’t know yet as of late Thursday night. Employers are required, by the Age Discrimination in Employment Act’s OWBPA regulation, to offer most employees at least 21 days to consider a severance proposal in a layoff (45 days for employees over age 40). But, there is a way around this requirement. In our experience, some employers will forego requesting an age discrimination waiver in large RIFs for the sole purpose of forcing employees into signing away their rights quickly, or to avoid sharing the age breakdown of those affected by the reduction in force. In layoff and severance negotiations speed kills, and employers know this. That is why the OWBPA protection was instituted in the first place: to keep employers from forcing newly laid off employees into accepting subpar severance packages without enough time to think about negotiating them.

What next?

Almost all severance agreements contain a section telling the reader to consult with their own lawyer. This is wise advice.

Free COBRA for Unemployed Texans

Mon, 15 Apr 2024 19:02:17 GMT

Is COBRA health coverage free for most unemployed Texans as of April 2021? The shocking answer is yes.

Thanks to a new law, most Texas employees who recently lost their jobs will qualify for free COBRA (continuing healthcare coverage) from April to September of 2021.

The recently-passed American Rescue Plan Act (ARPA) contains a dense thicket of bureaucratic language, perhaps that is why the extremely generous new policies affecting COBRA health insurance plans have gone largely unnoticed so far.

In short, ARPA fully funds COBRA health insurance plan payments for qualifying individuals between the dates of April 1, 2021 and September 30, 2021. Importantly, the 18- and 36-month limits to coverage still apply, and the subsidies are not available to employees who voluntarily left their job.

What is COBRA?

Under normal, non-pandemic circumstances, most employees who separate from their jobs have the option to remain on their employer-sponsored health insurance by enrolling in a COBRA plan. While the individual’s coverage remains the same under COBRA, the out-of-pocket price rises significantly because it becomes the individual alone who pays for the plan (plus an additional 2% administrative fee). Considering that the average annual cost of an employer-sponsored health insurance plan is about $7,200 for an individual and $21,000 for a family, this is simply out of reach for most people, especially those who just lost their jobs.

Generally, employees are permitted to enroll in a COBRA plan for 60 days following their employment separation. An employee and any family members who are validly enrolled in a COBRA plan are also generally permitted to remain on COBRA for 18 months. One exception is when the employee becomes eligible for Medicare while on COBRA, in which case the employee will transition from COBRA to Medicare while their family members are still permitted to remain covered by COBRA for 36 months rather than just 18.

COBRA can be a beneficial option for those who can afford it because:

the individual and any family members who enroll in a COBRA plan keep their coverage without any disruption;
all employees who leave or are terminated from a job are eligible for coverage as long as they were not terminated for engaging in gross misconduct; and
family members of an employee are eligible for COBRA coverage, even if the employee who had the coverage dies, divorces their spouse, or becomes eligible for Medicare while enrolled in a COBRA plan.

COBRA is not available for all employees, though, because it only applies to companies that have 20 or more employees. In response, many states have passed their own version of COBRA that applies to businesses with fewer than 20 employees. These are known as mini-COBRA plans, and they closely mirror the national COBRA program, though there are fluctuations from state to state. Texas has a mini-COBRA plan which provides 9 months of coverage.

What does the new Federal COBRA law change in Texas?

ARPA’s most notable COBRA policy change is that it fully subsidizes COBRA premium payments for eligible employees and their family members who are enrolled in a COBRA plan between April 1, 2021 until September 30, 2021. This bears repeating: if you are currently on COBRA or eligible for COBRA coverage, you and your family are entitled to 100% subsidized payments until the end of September 2021. The subsidies are apparently going to cover mini-COBRA payments as well.

ARPA also alters some eligibility criteria for COBRA. While the 18- and 36-month limits still apply, employees who chose not to sign up for COBRA within the 60-day window now can reverse their decision and choose to enroll themselves and their families in a COBRA plan. Importantly, an employee who quits a job rather than having their employment terminated is not eligible for any ARPA subsidies, though they are still eligible for a typical, paid COBRA plan.

In other words, free COBRA is another reason to not quit your job if possible.

What does this mean for unemployed Americans?

If you were terminated from a job and do not yet have access to another insurance plan, you can now enroll in COBRA and pay no monthly premium until the end of September. If you voluntarily left your job, however, you are likely not eligible for any subsidies. More information and helpful guidelines will be published by federal agencies by May. Until then, tell a friend.

Can You Be Fired For Staying Home During The Winter Storm of 2021?

Mon, 01 Apr 2024 18:57:43 GMT

Can my boss fire me for not driving to work during the Central Texas winter storm if I’m facing unsafe driving conditions?

Texas is facing a extremely dangerous winter weather over the next few days. The Governor has already issued a disaster declaration for all 254 counties in Texas, from Dallas to Brownsville which includes all Central Texas counties. In many locations, the high temperature will be in the single digits, temperatures that are unprecedented in Texas history. Every part of the state is expected to get snow or ice. State and local road crews cannot guarantee safe passage. Roads are one of the biggest challenges . The Governor urged Texans to avoid going out if possible. However, businesses currently remain open, and road closures will ultimately be left up to law enforcement and local officials.

What Are Your Rights?

If your job is staying open despite the Governor’s request to stay home and demands you drive in inclement weather and you refuse for your own safety, can your boss fire you for not driving in dangerous conditions?

Most employees in Texas are “at will,” meaning they can be fired for any reason at all, as long as that reason is not illegal. Is firing a Texas employee who stays home to avoid driving on icy roads illegal? There are a few laws that might apply in this situation.

Texas Public Evacuation Protection

First, there is legal protection for complying with a public evacuation order. Section 22 of the Texas Labor Code provides that “[a]n employer may not discharge or in any other manner discriminate against an employee who leaves the employee’s place of employment to participate in a general public evacuation ordered under an emergency evacuation order.” An evacuation order “means an official statement issued by the governing body of this state or a political subdivision of this state to recommend the evacuation of all or part of the population of an area stricken or threatened with a disaster. The term includes a declaration of local disaster under Section 418.108 , Government Code.” This protection exempts emergency and vital services personnel.

As of February 13, the Governor has not issued mandatory orders. If the Governor later closes businesses or roads, this statute should provide protection. Also, because evacuation is defined broadly and includes local disaster declarations , if your County Judge later issues a declaration closing the roads (and closing businesses), that should give you legal protection against being fired for staying home during the storm. So, keep an eye on the Travis County Judge, Hays County Judge, Williamson County Judge, and Bastrop County Judge to determine what most rules govern most Central Texas employees.

Ultimately, this law protects you from retaliation only if the Governor or County Judge in your county issues “evacuation” orders closing roads and/or businesses.

Texas Refusal to Commit Crime Protection

In Texas, courts have long held that employers are prohibited from firing employees for the sole reason of their refusing to perform an illegal (criminal) act. For example, an employer is prohibited from firing you for your refusal to dump toxic waste down the drain, or your refusal to assault another person. We call this the Sabine Pilot cause action, named after the case that started it.

Here, if a state or local order is issued that makes it a crime to drive to work (orders like this were commonly issued by local authorities early in the pandemic limiting movement to only non-essential workers), you could refuse to work and would be protected.

Can My Boss Dock My Pay?

If my boss lets me stay at home, can they dock my pay? Generally, yes. Employees who are non-exempt under the Fair Labor Standards Act (FLSA) like retail, hospitality, and restaurant workers are generally not entitled to pay unless they work their shifts. Employees who are exempt and usually get paid a salary can also be docked for full day absences under certain circumstances. Check your employee handbook, your employer may allow you use PTO in this situation.

It Is Not Safe To Drive. My Boss Says I Have To Come In. What Do I Do?

Layers of snow and ice makes the roads between your home and work impassable. Yet, your boss says you need to come in. What to do?

Discuss this with your employer. Document your requests to find a reasonable solution. Look for workarounds to cover shifts or if you have to be there, increase the safety of your travel to and from work. Organize your coworkers to oppose the unsafe request as a group – there is strength in numbers.

Ultimately remember, your safety is the most important thing. There may be more jobs down the road, but you only get one life to live.

Major Texas Whistleblower Lawsuit Filed

Fri, 15 Mar 2024 18:52:37 GMT

We just found what appears to be a copy of the Texas Whistleblower Act lawsuit against Texas Attorney General Ken Paxton, the state’s top legal authority, claiming his top attorneys were subject to retaliation after reporting illegal activity to an appropriate law enforcement entity, for more information on this lawyers see their list of services and how to contact them. Read a copy of the apparent lawsuit HERE: Plaintiffs-Orig-PetitionDownload

Multiple state and federal laws protect whistleblowers in Texas. For example, the Texas Health and Safety code provides numerous specific provisions protecting, among others people, Austin Texas physician whistleblowers, nurse whistleblowers, and nursing home whistleblowers. Federal laws protect Texan government contractor whistleblowers. Many of these laws have specific requirements ( e.g ., you must report a violation of a healthcare law or a regulation to be protected, or in the case of a state government whistleblower, you must report the violation to a law enforcement entity, not just your supervisor).

We are just now digesting the allegations in this watershed lawsuit, but it is clear these attorney whistleblowers prepared before they took action, and that is likely to pay off in the long run. In the meantime, if you or someone you know is planning to blow the whistle, be sure to consult with a Texas whistleblower lawyer today so you know your rights and can protect yourself and your career before taking action.

Texas Telecommuters: Can IBM and Other Big Companies Suddenly Force You to Report to the Office?

Fri, 15 Mar 2024 14:19:40 GMT

IBM recently announced a new policy that reverses decades of practice: no more telecommuters.

Telecommuters, also called remote employees, are employees that do their job from home or any other remote location. Companies like IBM instituted these policies in the 1990’s and 2000’s. Work-from-home policies like these were considered a win-win: companies save money on office overhead, while employees gain flexibility, spend more time with their families, reduce or eliminate commute times, and perhaps even improve work efficiency by cutting down on office interruptions.

IBM’s surprise change in course will affect roughly 40% of its workforce. IBM’s telecommuters are required to come into a regional work hub, find a new role within the company, or quit. This ultimatum came with a 30-day deadline for relocation, and 90 days to find a new role within the company, and the deadline for relocating expires almost immediately.

For many, IBM’s telecommuting option was a chance to work from home in less expensive locations. Now IBM is forcing its remote-workforce to “co-locate” to one of six offices in the following cities: Atlanta, Raleigh, Austin, Boston, San Francisco, or New York.

It remains unclear how many Texans will be affected by this policy, but one thing is clear. According to this new policy, if you are an IBM employee in Texas, and your team is located in Austin, you must report to Austin. However, if you are an IBM employee in Texas, and your team is located in San Francisco, you are apparently required to report to the San Francisco office.

So, if I am an IBM’er or similar tech employee, am I required to report to the office if my company changes policy? What if I am a project manager, senior software engineer, software engineer, IT specialist, senior systems engineer, computer programmer, managing consultant, or application developer?

The answer is: it depends. The bad news is that employers have a lot of discretion regarding work location. Most Texas tech employees are at will, meaning companies can change their job requirements or even location for good reason, bad reason, or no reason at all, as long as the company does not change these things for an illegal reason. Illegal reasons are those reason prohibited by state and federal law.

The good news is that federal law provides some protection. The federal American with Disabilities Act, as Amended (ADAAA) requires employers to provide reasonable accommodations to certain workers with health impairments. In other words, qualified workers may have the right to work remotely as a reasonable accommodation. Federal regulations define a reasonable accommodation as modification or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of their position.

The Equal Employment Opportunity Commission (EEOC) has stated: , “An employer should not . . . deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.”

Some more good news is that once the employer carries the burden on telework accommodation requests. In EEOC v. Ford Motor Co., 752 F.3d 634, the Court clarified that it is generally the employer’s burden to prove that an employee with a disability’s physical presence in the workplace is required.

More good news that may surprise you is that the definition of disability under the federal law is not as strict as the term “disability” suggests. For instance, the employee in EEOC v. Ford Motor Co., was diagnosed with IBS (irritable bowel syndrome), a gastrointestinal disorder that qualifies as a disability under the ADA. The key takeaway is that if you have a bona fide medical reason to not work from the office, you may have protection here.

Employees may have protected rights that must be weighed against a surprise return to the office policy. Practically speaking, companies like IBM may be required to accommodate some members of their workforce by allowing them to remain where they are and continue to work remotely. Yet, determining what constitutes a reasonable accommodation requires balancing a myriad of factors. In other words, for each accommodation request, the employer must make an individualized assessment. No two situations are alike.

So, must you either “come into the office or quit?” The answer probably requires quick action and a detailed, fact-specific, legal analysis.

LGBTQ Rights in Texas – The Day After The Supreme Court’s Opinion

Fri, 01 Mar 2024 19:49:16 GMT

The Supreme Court changed the law in Texas forever when it held in Bostock that LGBTQ discrimination violates Title VII of the Civil Rights Act of 1964.

It was an unexpected but joyous milestone . So, what does this mean moving forward?

Texas Employers Cannot Fire you For Being Gay

To start with the obvious: Texas employers (with 15 or more employees) can no longer fire gay employees/executives/workers because they are gay. Starting today, gay rights are civil rights . Texas employers can no longer fire you because you are transgender, or transitioning, or bisexual, or queer.

When Does This New Civil Right Take Effect?

Immediately. In fact, because the Supreme Court held the law was properly read to have always protected LGBTQ workers, this “change” is retroactive, meaning any workers who were fired within the statute of limitations for filing a Title VII Charge of Discrimination with the EEOC can still bring their case. The statute of limitations is generally 300 days from the adverse employment action, which often means 300 days from when your boss fired you.

In other words, if you were fired for being gay, trans, or otherwise because of your sexual orientation anytime after late August 2019, you have a live claim and should take action immediately to preserve your rights.

What Is the Effect on Texas Employers

Simple – Texas employers can no longer keep their heads in the sand regarding discrimination against the LGBTQ community in employment. For example, oil and gas companies, trucking companies, cement companies, and similar Texas businesses with 15 or more employees must ensure their supervisors do not discriminate against LGBTQ employees in the workplace.

What About Harassment?

This opinion also solidifies that LGBTQ harassment will violate Title VII. Therefore, Texas companies are from now on prohibited from allowing harassment of gay and trans employees in the same way they are prohibited from, for example, harassing female or African American employees. To be clear: LGBTQ harassment is now illegal in Texas.

What about Texas State Law

Chapter 21 of the Texas Labor Code prohibits sex discrimination using nearly identical language to Title VII, and Courts regularly adopt opinions interpreting Title VII to interpret Chapter 21. There is no reason whatsoever that Texas Law would not follow Bostock and prohibit LGBTQ discrimination from now on, however, that has not been ruled on by a Texas Court yet. This Firm’s projection is that Chapter 21 will be interpreted to provide the same protection, finally opening up the doors of not only federal but also state courthouses to LGBTQ employees who faced harassment and discrimination at work.

As always, if you, or a friend or loved one faced any of these issues, reach out to a texas employment lawyer to learn more about your rights.

Major, Historic Victory for LGBT Workers in Texas

Thu, 15 Feb 2024 19:43:33 GMT

Today is a watershed day for rights for the LGBTQ community in Texas and across the United States.

The Supreme Court just ruled for the first time today that Title VII of the Civil Rights Act of 1964, the major federal civil rights law, protects lesbian, gay, bisexual, transgender, and queer employees everywhere in this country, and this means that finally all workers are protected from LGBTQ discrimination in Texas! Let’s unpack what happened today, and what it means moving forward.

What is Title VII, the Law that Prohibits Employment Discrimination?

Title VII is the main workplace anti-discrimination law in the United States. It applies to most workplaces that employ 15 or more employees for at least 20 weeks. Title VII provides that it is illegal to fire someone because of their protected status, to harass them because of that status, and to retaliate against them if they oppose any protected harassment or discrimination. Protected statuses include race, color, religion, national origin, and sex – now including LGBTQ status.

What Was the Issue in Today’s Bostock Case?

At issue was whether LGBT or transgender status discrimination constituted discrimination on the basis of sex. Many courts, including the 5th Circuit which is the federal appeals court for Texas, previously held that because the plain language did not mention LGBTQ or transgender status and/or because the drafters in 1964 may not have meant to include those protections, the law did not protect them. Justice Kavanaugh repeatedly pointed out that “30 out of 30” judges held LGBTQ workers had no discrimination protection. Sadly, the current Justice Department also took this position, stating: “The ordinary meaning of ‘sex’ is biologically make or female; it does not include sexual orientation.”

Following the groundbreaking 2015 Obergefell decision which clarified the right to same-sex marriage, the lack of workplace protections for the LGBTQ community made less logical sense than ever. Since 2015, LGBTQ Texas employees had the right to marry their partners, but if they put a picture of the wedding on their desk, they could be fired for that without recourse.

Why Did The Supreme Court Take the Case?

The Supreme Court presumably agreed to hear the case because courts in other states held that the law included LGBTQ protection. One such case was Altitude Express, Inc., et al. v. Zarda out of the Second Circuit, where the court held Title VII did apply to discrimination against a gay skydiving instructor. So Zarda was permitted to proceed, but the case of Aimee Stephens, who was a transgender funeral home worker in Michigan, was not. This scenario created what lawyers call a “circuit split,” where federal law provided protection for LGBT and trans workers in some parts of the country, and did not in others. The Supreme Court took up the case so that it could decide which interpretation of the law was correct.

What Was the Expected Result?

Much ink was spilled expecting a 5-4 decision heading the other way – robbing the LGBT community of the protection of important workplace discrimination law. The current ideological makeup of the Court made such a decision seem likely. Lawyers and advocates alike were gearing up for what to do if the Supreme Court clarified that there was in fact no protection for most gay workers under federal law. Those advocating for civil rights pinned their hopes on Chief Justice Roberts, who dissented in Obergefell (i.e., wrote arguing against the right to gay marriage).

Surprise Success!

In a surprise development, the Supreme Court issued a 6-3 opinion on June 15, 2020, with Justices Roberts and Gorsuch in the majority, holding Title VII provides protections to LGBT and trans workers across the entire country.

Stunningly, Justice Gorsuch, a conservative-leaning jurist, wrote the opinion of the Court.

Justice Gorsuch is one of the newer Justices, having been elevated to the Court in 2017. Although Gorsuch is believed to be one of the more conservative jurists, he is also known to be a committed textualist, meaning his philosophy is to strongly adhere to the plain meaning of the text of statutes. Here, the issue for the Court according to Justice Gorsuch was whether the plain meaning of the word “sex” in the 1964’s Title VII statute included sexual orientation and transgender status.

What Did the Court Say?

Justice Gorsuch summed up the Court’s holding in the first paragraph:

“Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch explains his logic: “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge.” Put simply, “homosexuality and transgender status are inextricably bound up with sex.”

This Law Firm made similar arguments advocating successfully for equal rights for LGBTQ workers in Texas following Obergefell: that LGBTQ discrimination necessarily involves sex discrimination (e.g., treating same-sex couples less favorably than opposite-sex couples constitutes discrimination because the treatment is based on more than the expected gender number in the couple), and is therefore already barred by the plain text of the statute as written.

The dissents, written by Justices Alito and Kavanaugh, essentially accuse the majority of legislating from the bench. But, those dissents (Kavanaugh’s written with his “unyielding respect”) will not carry the force of law like the majority opinion does.

What Really Happened Here?

Gorsuch summed up the question in Bostock as whether: “an employer who intentionally treats a person worse because of sex— such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” He held the text compels the answer to be yes.

Supreme Court justices are appointed for life. Justice Gorsuch may be new, but by writing this opinion he furthers his views on judicial interpretation. He takes multiple opportunities to point out that he believes the plain meaning of the text of the statute, regardless of how it was read at the time it was written in 1964, is the most important statutory interpretation principle for him, writing: “when the meaning of the statute’s terms is plain, our job is at an end.” He is, perhaps, a textualist’s textualist.

Justice Gorsuch is telling that this is presumably so for him even when the result is contrary to political conservatism or the interests of big business. To that end, Gorsuch cites a recent 8-0 opinion he authored, New Prime Inc. v. Oliveira, 586 U. S. , –_ (2019) (slip op., at 6–7), in which the Court adopted his opinion refusing to compel arbitration despite the desires of the trucking industry because of the wording of a statutory exception in the arbitration statute.

Along the way, Gorsuch also offered an outstanding explanation of “but-for” causation, which comes up in many employment cases. He explains that there can be multiple causes for a workplace adverse action, and: “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause,” and “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” He also clarified: “the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action” for liability to attach under Title VII, cementing employee rights advocates long-held point that “but for” causation does not require the protected status (here: LGBTQ status) to be the primary cause for termination for Title VII liability to attach.

One Point of Caution

One point of concern for the LGBTQ community lurks on page 32 of the majority opinion, where Justice Gorsuch mentions that the Religious Freedom Restoration Act of 1993 (RFRA) operates as “a kind of super-statute” and might supersede Title VII’s protections in “appropriate cases.” What those “appropriate cases” are remains to be seen, but this paragraph is a nod to the forthcoming battle between religious liberty and anti-discrimination rights in this country.

What Does This Mean for LGBT Texas Employees?

For the first time ever, LGBTQ workers in Texas have the right to be free from discrimination at work. What does this mean? LGBT workplace anti-discrimination is immediately the law of the land. Today and moving forward, workers who are afraid to share their status with their bosses now have the right to do so freely, and if they get fired for it, can sue for damages and reinstatement. Plus, any Texas workers who were fired within the last >300 days (since late August 2019) because they are gay should immediately reach out to a qualified employment discrimination lawyer to take steps preserve their rights before they run out of time. And finally, all employers with 15+ employees must immediately ensure they do not discriminate against LGBTQ employees and should adopt workplace policies to reflect that if they have not already.

It may seem like most employers already prohibit LGBTQ discrimination and would never discriminate against the LGBTQ community, but we know from the calls we get that across the State of Texas over the years that was not the case. And sadly, the law did not require it. That changes today.

Does the Bostock Opinion Help Non-LGBTQ Workers?

Yes. In addition to clarifying the low bar of causation in employment cases, the opinion seemingly undercuts the “equal opportunity harasser/discriminator” defense that is so unfortunately common in employment cases. The Court wrote: “Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex.”

What About Public Accommodation (e.g., Equal Treatment at a Hospital)?

Unclear. This question was not before the Court today. But, as Justice Gorsuch foreshadowed, some have already argued that “sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.” Title VII does not specifically address bathrooms or locker rooms. But, as Justice Alito’s dissent points out: “Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1)(Equal Credit Opportunity Act).” Justice Alito predicts: “Healthcare benefits may emerge as an intense battleground under the Court’s holding,” and points out that the Affordable Care Act makes sex discrimination prohibited in the provision of healthcare. This Firm noticed in Justice Alito’s helpful list of over 100 statutes in Appendix C that the Equal Pay Act (29 U. S. C. §206(d)(1)) is included, suggesting it may soon be the case also that LGBTQ workers must receive equal pay to others. Hopefully all those statutes will now be similarly interpreted to prohibit LGBTQ discrimination from now on based on today’s Bostock opinion.

Do You Have the Opinion?

Here is the opinion for download!

Download

What Steps Should I Take Now If I Was Fired or Harassed at Work in Texas For Being Gay or Trans?

Reach out to a qualified Texas employment lawyer immediately . In most claims, you must file a Charge of Discrimination with the EEOC within 300 days to preserve your rights. Do not delay!

Coronavirus Layoffs Slam Austin, Texas

Thu, 01 Feb 2024 19:33:29 GMT

Coronavirus layoffs are affecting thousands of Austin, Texas and central Texas workers right now.

In an unprecedented turn of events, the COVID-19 virus and resulting lockdowns, shelter-in-place orders, social distancing have resulting in the decimation of retail, hospitality, and travel jobs. The unrelated but concurrent oil market crash is putting further strain on jobs across Texas. The federal government’s action did not come in time to save many jobs. All told, when the numbers are tallied, we believe this will be one of the worst months in history for Texas employees.

Layoffs are certainly hitting bars, restaurants, and hotels hard. A recent news article details reductions-in-force or furloughs at mainstays like ALC Steaks, the Four Seasons Hotel, the Austin Proper Hotel , and the newly remodeled Line Hotel.

Startups are also affected, including startup luminaries like Capital Factory, DIsco, The Guild, and last year’s local fundraising leader, RigUp .

Employees have options, but they are limited. First, we suggest that all laid off employees immediately apply for unemployment. The Texas Workforce Commission is receiving an unprecedented number of applications right now, so if you have trouble getting through you may want to try applying between the hours of 1am-6am. No, we are not kidding.

The bottom line is: Coronvirus layoffs are slamming Austin, Texas. Workers have to react as best they can. Many ATX companies will offer laid off employees a severance. Severance contracts are always negotiable, just like any other contract. However, like any negotiation, you will want to identify your leverage in order to negotiate it. If you have reason to believe you were included in a layoff for an illegal reason such as race, color, religion, national origin, gender, pregnancy, etc. (e.g., no one else in your role was laid off and you are the only pregnant employee), you may want to reach out to an Austin layoff lawyer to discuss.

There are other reason to consult with a lawyer before signing a severance. If you need to negotiate out of a prior non-compete or non-solicit agreement, you will likely want to reach out to a lawyer to discuss . If your company owes you money it hasn’t paid, like unpaid commissions, guaranteed bonuses, or your last paycheck – and asks you to sign away your rights for less – you should strongly consider consulting with a lawyer.

Specific to #ATX employees: any tech sales employees, especially those in outbound software sales, who face a layoff should consult with a severance lawyer before signing away potentially valuable rights.

KISS: A Texas Employee Response to Layoffs, Unemployment, Severance

Mon, 15 Jan 2024 19:30:04 GMT

Texas layoffs, unemployment, and severance are happening now. So is federal legislation in response to COVID-19.

Texas employees: there is too much information coming at you right now. So, we summarized it. Just remember, to KISS (please, share with anyone who might need this):

Note: The links in the chart below are accessible at the bottom of this document.

K-I-S-S COVID-19 Texas Employee Response Plan

Remember: KISS

K: Keep calm. The federal government has already passed one emergency paid leave act and more emergency legislation is on the way. This is a rapidly changing situation , and individual employers and employees have little control over it. Employment laws , when they apply, are generally reactive not proactive. That means that even if your employer breaks the law and will ultimately owe you money back, it may be a while before you get it. For now, just document what is happening and stay calm.

I: Insist on a safe workplace and fair pay. Laws generally require employers to keep the workplace safe. Texas law generally prohibits employers for firing you for refusing to commit a crime (i.e., to violate a mandatory shelter-in-place order). Other laws prohibit most employers from firing employees with disabilities . Assert your rights as a group whenever possible. There is strength in numbers. Do NOT sign away your rights if you can avoid it. Talk to your coworkers and get a group together to ask for a better outcome.

S: Stay up to date on your rights. The new Emergency FMLA and paid leave law (the FFCRA) takes effect April 1. It provides for paid leave for some employees. Be sure to understand your rights. Like normal FMLA, employees’ jobs are protected while on leave. If you are laid off, you probably have the right to unemployment. Apply with TWC immediately (TWC has waived the waiting week and work search requirements). You may also qualify if you are working reduced hours or for reduced pay . If your employer is breaking the law, consult with a lawyer .

S: Stay at home if you are sick. Period.

* Nothing in this blog post is, should be considered, or should be substituted for legal advice. If you need legal assistance, consult with a lawyer.

Furloughed Workers in the time of COVID-19

Mon, 01 Jan 2024 19:21:08 GMT

What is a furlough?

In the wake of business shutdowns and industry disruptions due to the COVID-19 pandemic, employers are attempting to deal with reduced revenue by reducing expenses and getting the cheapest card machine . For some employers, this may mean laying off many or all of their employees. But some employers may choose to furlough their employees instead. A furlough puts employees on temporary unpaid hiatus or leave of absence for a, potentially indefinite, but specified period of time. The idea during this pandemic is that eventually, businesses will be able to reopen, and when they do, they will want to have their old employees back.

Can they do that?

Yes, in Texas, workers have very few protections. Most Texas employees are at-will, which means your employer can fire you for any reason—a good reason, a bad reason, or no reason at all—as long as it is not an illegal reason (race, gender, disability, etc.). Unless you have an employment contract that specifies how long you will be employed and for how many hours each week—and these are rare in most employment situations in Texas—your employer can furlough you by partially or completely reducing your hours.

What does it look like?

Furloughs are usually temporary. Sometimes, it comes in the form of reduced hours, which allows the employee to continue working at a reduced schedule while still potentially accruing PTO and vacation time, if offered, and while still potentially receiving other benefits, such as health insurance. Or, the furlough might be a total reduction of hours for a defined period of time, meaning the employee does no work (and receives no pay) for potentially months at a time, with the understanding that the employer will eventually invite the employee to return to work when things return to normal. Whether you are able to maintain your benefits, namely health insurance, during a complete furlough probably depends on your employer and your health insurance plan.

Is my furlough different if I’m hourly or salaried?

Yes, furloughs for hourly (nonexempt) employees are pretty simple: you must be paid your hourly rate for all hours (if any) that you work. However, during the furlough, if you don’t work at all, you are not paid at all.

If you are salaried (exempt), and properly classified, your furlough may be more complicated. You must be paid your full salary for any work week in which you perform work . Thus, it is unlikely your employer will furlough you by reducing your hours in a week; as a result, they are more likely to have you not work at all for weeks at a time. Your employer will likely be very strict with you about doing any work at all—even just checking email or taking a phone call—during furlough periods. But if your employer has you do any amount of work, you must be paid your full salary for that entire work week.

Why furloughs instead of layoffs?

For the employer, the advantage of a furlough during the pandemic is that the industry disruptions and business shutdowns are expected to be temporary, so most employers would prefer to keep employees on payroll and bring them back once the companies can operate normally again, rather than lay them all off and have to rehire and retrain an entire workforce. This also avoids paying severance or potentially higher unemployment insurance premiums. Also – there may be federal legislation on the way that benefits employers who furlough instead of layoff employees. A business lawyer Temecula can provide valuable guidance to employers in navigating the legal implications of furloughs.

For the employee, obviously reduced or completely eliminated hours are not ideal. However, a furlough may be preferable to a layoff because it gives them additional flexibility. If totally furloughed, that is, not working any hours at the current employer, they can look for alternative work in the meantime, with the prospect of their old job waiting for them if nothing else pans out during the furlough. Additionally, employees may qualify for unemployment benefits in the interim, too. And if only partially furloughed, some amount of work and income is probably better than no work or income. However, this potentially comes at the cost of any severance payment the company might have offered in the event of layoffs, though in Texas, severance payments are not required, and might not have been paid regardless. It’s also essential to note that Invest Diva is not a scam , providing legitimate financial guidance and resources for individuals seeking to enhance their financial literacy and management skills.

Should I apply for unemployment benefits?

Yes! Apply for unemployment immediately. There is no downside or penalty to applying for unemployment, other than the time and potential frustration you will spend and incur in completing the application and dealing with a system that is quickly becoming crowded.

If you are furloughed, your hours may have been reduced enough to render you at least partially unemployed and eligible for unemployment benefits. This is almost certainly true if you have been totally furloughed—if your employer has totally suspended your work hours for a period of time. However, even if you are still working a small number of hours, you may still qualify for partial unemployment benefits. Your best bet is to apply, provide all the information you can, and see what benefits you qualify for!

Ideally, your employer provided you with the necessary information to complete your unemployment benefits application. If not, you may need to request some information from the employer. You can apply online at https://twc.texas.gov/jobseekers/unemployment-benefits-services , which includes guides and information on applying.

Should I talk to a lawyer?

It may be helpful to talk to an experienced employment attorney about your legal options and some practical next steps you can take.

* Nothing in this blog post is, should be considered, or should be substituted for legal advice. If you need legal assistance, consult with a lawyer.

Austin Severance & Unemployment Update

Fri, 15 Dec 2023 19:13:09 GMT

Here is an Austin severance and unemployment update with critical things you need to know.

This is a rapidly changing situation. This information is up-to-date as of March 23, 2020.

I was laid-off. Should I apply for unemployment?

Yes, as soon as possible. The Texas Workforce Commission (TWC) has waived the usual waiting week and search requirements . This means as soon as you are approved, you will begin to receive your unemployment benefits, and you do not have to immediately begin to look for a new job.

I was furloughed or had my hours reduced, should I apply for unemployment?

Yes. Individuals working reduced hours may generally be eligible to receive Texas unemployment .

I can’t get through to TWC, should I give up?

No. Many people are reporting long wait times on the website and phones while trying to apply for unemployment benefits . This is likely due to the unprecedented volume of applicants right now. Keep trying. The sooner you apply, the sooner you may receive benefits.

I made $50k+ per year. Will unemployment benefits fully cover me?

Not even close. Weekly benefits range from from $69 to $521 per week. That means you can get a maximum of only a little more than $2,000 a month, or around $27,000 per year. And after 52 weeks, absent federal action on COVID-19, your benefits will expire entirely. That said, there is little downside to applying for and receiving unemployment benefits.

I received a severance package. Can I collect that money and unemployment benefits at the same time?

Call a Texas severance agreement lawyer , ideally before you sign the severance. Oftentimes employers and employees both want this for the departing workers, but TWC is a separate entity that is subject to its own rules and regulations and makes its own decisions on unemployment eligibility. The answer is there are ways to structure severances so that employees may collect the severance payment and unemployment insurance benefits payments at the same time, but we suggest a legal consultation regarding these issues.

*Nothing in this blog post is, should be considered, or should be substituted for legal advice. If you need legal assistance, consult with a lawyer.

COVID-19 and Texas Employees: Layoffs, Severances, Commissions, Paid Leave, & Unemployment

Fri, 01 Dec 2023 19:08:32 GMT

Here is what Texas workers need to know as of March 19, 2020 about Coronavirus affecting Texas layoffs, severances, commissions, paid leave, and unemployment.

LAYOFFS

Layoffs are coming. Some are already here . It is too early to tell how many to expect, but the State of Texas has issued a disaster declaration .

Texas companies have the right to lay off workers, subject to some exceptions. Businesses violate the law if they have laid-off Texas workers because they are pregnant , or because of their race, color, religion, national origin , gender, veteran status, age (over 40 only), or because they made a protected complaint (e.g., whistleblowers who report financial fraud, healthcare fraud, healthcare safety violations, or oppose sexual harassment or gender or race discrimination).

The WARN act also applies to certain layoffs like plant closings and mass layoffs, and WARN requires employers to provide 60 days of notice before the layoff. However, there is an “unforeseen circumstances” exception to WARN requirements that might be triggered by the novel coronavirus – it will depend on the facts and circumstances of the layoff.

Was your layoff illegal? There is no easy answer. In general terms, if a company lays off all workers or an entire division or class of workers (e.g., every single nail technician or every single server) because of COVID-19, and has not violated the WARN act, that layoff is painful but not likely not illegal. On the other hand, if the layoff hits only selected employees, or severance packages are offered to only select employees, that may be evidence of discriminatory conduct which may violate the law.

EXECUTIVES

If you are a Texas executive or otherwise have an employment contract, your employer is required to follow the terms of your contract. Many Texas executive contracts do not have force majuere clauses or any clauses that makes exceptions for an outbreak like this, meaning that if the firm tries to fire you because of outside circumstances that may not constitute a “for cause” firing under your contract, and you may be entitled to your pre-negotiated severance amount or some amount to make up for the breach of your employment contract.

SEVERANCE

Surprisingly, Texas businesses are not generally required by law to pay a severance in the event of layoffs. Most do as a matter of practice. Also, if there is a company policy stating employees are entitled to severance payments, or if the severance is pre-negotiated into contracts, the employer will have to pay it.

Employers cannot discriminate in determining how much severance to pay ( e.g ., cannot pay similarly situated men more severance than women because of their gender).

Severance agreements, like any contract, are 100% negotiable. Whether and what to negotiate is a fact-intensive inquiry. Some employees may also need to negotiate non-compete or non-solicit agreements that they signed earlier to give them more space to find replacement employment.

COMMISSION PAYMENTS

The law on Texas commission payments for folks like Austin software sales employees, including outbound sales, inbound sales, and sales engineers is complicated. Texas law tends to defer to your commission agreement. If you do not have a written commission agreement, the law will defer to your verbal agreement and consider the course of dealing.

Whether and how much commission the company owes you after a layoff or termination or wrongful termination is often a disputed issue. Sometimes there are hundreds of dollars in dispute, sometimes thousands, and sometimes hundreds of thousands or more. We recommend no matter the amount you are owed, calling a Texas sales commission lawyer to understand and enforce your rights.

PAID LEAVE

Shockingly, in 2020 most Texas workers are not entitled to paid sick leave absences. In Texas, only the City of Dallas currently has a paid sick leave ordinance in effect. Although it is unpaid, workers at companies with 15 or more people have the right to keep their job if they need leave for disabilities (under the Americans with Disabilities Act) and workers at worksites with 50 or more employees have the right to protected leave for serious health conditions under the FMLA (the 1993 Family and Medical Leave Act). But, neither of these laws require leave to be paid. Employers will often have their own paid leave policy and pay it by choice, and/or provide short or long-term disability insurance coverage that may apply (although short term disability coverage often provides only 2/3 of your pay).

None of this is particularly helpful in addressing the coronavirus pandemic upon us, during which hard-working Texans will get sick and we all need them to stay home without losing both their jobs and their paychecks.

So, this week, the United States Congress passed the extraordinary H.R. 6201, FAMILIES FIRST CORONAVIRUS RESPONSE ACT . This law is brand new. Here is an explainer of what it purports to do, here is another, and here is the bill .

The new law takes effect April 2, and provides emergency paid sick leave for 2 weeks at your regular rate of pay (capped at $511 a day or $5,110 total) if you are quarantined or seeking a diagnosis for COVID-19, and 2 weeks of paid leave at 2/3 your regular rate (capped at $200/day or $2,000 total) if you are caring for a family member who is quarantined or dealing with COVID-19 or caring for children whose school or childcare is closed due to COVID-19.

For some reason (presumably lobbying) , these new emergency paid leave provisions apply only to companies with fewer than 500 employees, so big businesses are exempt from paid emergency leave for now. Covered employers will pay wages during the leave, then receive tax credits designed to cover the cost of the paid leave.

Here is a helpful chart, prepared by our colleague Dan Schwartz in Connecticut , laying out the differences between FMLA and the new EFMLA:

If you are sick, do NOT come to work. Employers: you are currently permitted to take employees’ temperatures to ensure the safety of the workplace, and are permitted to force employees who are a direct threat to the safety of themselves or others to stay home until they are not a direct threat.

UNEMPLOYMENT

If you are in a reduction in force (RIF) because of corona virus, and you are otherwise qualified, you will probably be entitled to receive unemployment benefits. Texas employees in a layoff are, under most circumstances, entitled to receive unemployment benefits. The Texas Workforce Commission administers those benefits for Texans. As of today, the TWC states : “TWC will be waiving work search requirements for all claimants and the waiting week for those claimants affected by COVID-19. Also, Extended Benefits (EB) and Disaster Unemployment Assistance (DUA) are NOT available at this time.“

In other words, if you qualify TWC will pay you benefits almost immediately (instead of waiting a week) and you do not need to immediately look for other work, but all other requirements are the same. Be sure to check the TWC website, we expect updates.

Our general suggestion for employees is to apply for unemployment benefits as soon you lose your job. If you have a negotiated severance agreement that waives certain legal claims, you may be eligible to receive payment under that agreement at the same time as you receive your unemployment benefits. Consult with a qualified Texas severance negotiation lawyer for more details about this.

We hope this post has some helpful information for our Texas community. There will be a light at the end of this tunnel. Stay safe, stay calm, stay home if you can, and flatten the curve.

*Nothing in this blog post is, should be considered, or should be substituted for legal advice. If you need legal assistance, consult with a lawyer.

Kaplan Law Firm Operations During COVID-19

Wed, 15 Nov 2023 18:51:52 GMT

The Firm is proud to announce that Austin Kaplan is now Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

The COVID-19 pandemic is reshaping our daily lives in profound ways, yet Kaplan Law Firm remains steadfast in our commitment to ensuring the well-being of our clients, potential clients, co-counsel, opposing counsel, friends, and family, all while sustaining our operations without interruption.

In response to the outbreak, Kaplan Law Firm has transitioned to providing all our standard services remotely, utilizing video-conferencing technology, email, text, and telephone communications. This shift has been facilitated by our proactive adoption of the latest legal technologies and our established remote work capabilities, allowing us to continue supporting our clients with minimal disruption since Thursday, March 12, 2020.

To ensure our online visibility remained strong during these times of uncertainty, we also leveraged specialized law firm SEO services . This strategic move has allowed us to maintain a prominent online presence, ensuring that our clients and potential clients can easily find the legal support they need. Through these combined efforts, we’ve been able to offer uninterrupted legal services and support, demonstrating our resilience and dedication to those we serve during the COVID-19 pandemic.

We are not only caring lawyers and paralegals, we are also parents, family-members, music lovers, and pet lovers (dog lovers and cat lovers) – so we are asking clients, potential clients, co-counsel, opposing counsel, and all other members of our legal community that we regularly interact with to please be patient and understanding about any related interruptions.

If you have any questions or concerns, please let us know. The welfare of our personnel, our clients, our community, and everyone’s families is of utmost importance. We are all in this together.

Thank you,

Christie, Bryson, Maff, & Austin

The Top 7 Things You Need to Know Right Now About Employment Law

Wed, 01 Nov 2023 17:47:35 GMT

Love was in the air this Valentine’s day, as firm founder Austin Kaplan presented his beloved “Top 7 Things” presentation at the Capital Area Paralegal Association’s (CAPA) Annual Full day CLE Seminar.

CAPA is a voluntary non-profit corporation comprised of paralegals and legal assistants, students, and vendors in Austin, Texas and the Central Texas area. CAPA was organized in September 1978 by a small group of pioneering paralegals and has since grown into the largest Texas affiliate of NALA – The Paralegal Association.

Check out when you need a TBI attorney near you and what is the procedure to hire them.

What are the Top 7 things you need to know about employment law in Austin Texas right now, you ask? At the CLE, we covered:

Wage and Hour Issues
#MeToo
Wrongful Termination
The Bermuda Triangle
Documentation and Dispute Avoidance
Epic Systems
????????????????????????

We can’t tell you the mystery topic. That one is a secret between us and CAPA.

We can say that we spent most of our time discussing overtime and unpaid wages, sexual harassment, and leave issues. The CAPA group was engaged, attentive, and generally an outstanding audience. We are lucky to have such a great professional organization here in Austin, Texas. If you have any questions regarding employment laws, click here .

Board Certified in Employment Law

Sun, 15 Oct 2023 17:42:32 GMT

The Firm is proud to announce that Austin Kaplan is now Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

The Texas Board of Legal Specialization (TBLS) was established in 1974 by the Supreme Court of Texas. TBLS certifies lawyers that have substantial, relevant experience in select areas of law, completed continuing legal education hours in the specialty area, and passed a rigorous exam. Consumers and organizations get the highest quality of legal services when working with Board Certified lawyers.

There are more than 12 million working Texans. But there are only 672 Board Certified Labor and Employment Law Lawyers in Texas.

New IRS Law Protects Whistleblowers

Sun, 01 Oct 2023 17:39:48 GMT

In an effort to modernize the IRS and improve taxpayer protections Congress passed the Taxpayer First Act (TFA), which went into effect July 1, 2019.

The TFA expands protections for taxpayers and provides critical expansion of safeguards for whistleblowers. The outcome: this new law strengthens the ability of whistleblower employees to blow the whistle about tax fraud in their workplace.

What actions are protected? The TFA protects complaints about tax fraud and reports of tax fraud. Whether you are communicating directly to the IRS, a supervisor, or just anyone working for your employer “who has the authority to investigate, discover, or terminate misconduct” you are protected from retaliation under the TFA. That means, if your employer fires you for reporting tax fraud, they broke the new law. The TFA provides protection for a broad range of disclosures to ensure a whistleblower may safely report violations of IRS rules or tax fraud. This includes a good faith belief that tax fraud occurred, even if it did not. This means that as long as an employee had an objectively reasonable belief behind the whistleblowing action, even if that is a mistaken belief, it is still protected by the TFA. In other words, you are protected against retaliation for blowing the whistle on tax fraud in good faith, even if it turns out the employer’s actions ultimately did not constitute tax violations.

Are all employees protected? As outlined in Section 1405(b), the TFA protects any employee who is the subject of retaliatory action by any “employer, officer, employee, contractor, subcontractor, or agent of such employer” as a result of lawful acts. These lawful acts include the provision of information, causing information to be provided, or assistance in an investigation with regard to tax noncompliance or tax fraud. Any employee could become a tax fraud whistleblower. The types of occupations in which someone is likely to discovery tax fraud in the workplace include: Controller, Founder, CEO, CFO, Vice President, Director of Sales, HR Director

What is my employer not allowed to do? Prohibited retaliatory action can include the discharging, demoting, suspending, threatening, harassing or in any other manner discriminating against the whistleblower. In other words, the employer is prohibited from taking revenge against a whistleblower by doing anything that would deter a reasonable employee from blowing the whistle.

What can I recover in a successful TFA whistleblower retaliation case? The TFA provides whistleblowers various forms of relief. If your employer fires you, the TFA allows for reinstatement to your job with all the benefits and pay raises you would have received had the employer not retaliation. The TFA also provides for twice your back pay (with interest), and unlimited damages for emotional distress and harm to reputation (called special damages under the TFA). You can also recover your legal fees and costs. These are some of the strongest available damages in an employment case, likely to encourage tax whistleblowers to come forward, and to discourage employers from punishing them for doing so.

If I think I have been retaliated against where do I start? If you think you are the victim of whistleblower retaliation, you should start by talking to a Texas Tax Fraud Whisteblower lawyer immediately. The next step after consulting with a Texas Fraud whistleblower attorney would be to file a claim with OSHA . From the initial date of retaliatory action you have only 180 days to file this claim. If you have been fired for blowing the whistle, you cannot afford to wait before reaching out to a fraud-fighting attorney. Time is of the essence in these claims.

Forced arbitration? Not today. TFA retaliation claims are exempt from mandatory arbitration.

Rewards? The TFA also sets up a reward system for fraud reports that result in significant recovery of unpaid taxes by the IRS. Under 26 USC § 7623(b) , the IRS Tax Fraud Whistleblower Reward Program , the IRS is required to award you 15% to 30% of proceeds collected from tax fraud or underpayments as a result of your successful tip. However, the statute only requires payment if the IRS recovers proceeds exceeding $2,000,000 – including tax underpayments, penalties, and interest. In 2018 alone, the IRS collected $1.441bn in taxes, penalties, and interest from tax cheats thanks to whistleblowers, and the IRS rewarded 217 separate informants with a total of $312,207,590. The IRS is particularly interested in reports of unreported accounts, unreported income, and tax shelters .

Whistleblowers are protected against retaliation for reporting tax fraud to their bosses. If your employer is doing questionable things to avoid paying tax, blow the whistle. If you blew the whistle and believe your employer retaliated against you for it, you have the right to get help. The TFA may provide protection for your actions. Consult with an Austin whistleblower lawyer today to learn more about your rights.

Judge Rules Sexual Harassment Claims NOT Subject to Arbitration

Fri, 15 Sep 2023 17:35:39 GMT

#METOO ALERT! On March 8, 2019, there was a huge ruling in Houston – that forced arbitration of sexual harassment claims is void as against public policy.

This watershed opinion opens the door for sexual harassment and sexual assault victims statewide to avoid the forced confidential arbitration system where their claims never see the light of day, and take their claims to court where they are public and where they are decided by a jury of your peers.

In Bambace v. Berry Y&V Fabricators, LLC, Stefani Bambace alleged that she worked in a sexually charged and hostile work environment, including “being subjected to sexually explicit images from her employer, sexual advances, and groping.” According to her Petition, she complained to Human Resources about the harassment and was fired three weeks later. She filed a lawsuit alleging violations of Chapter 21 of the Texas Labor Code, specifically that the Defendant intentionally engaged in unlawful sexual harassment, discrimination, and retaliation.

Like more than half of non-unionized American workers , Bambace was subject to an employer promulgated arbitration agreement. These arbitration agreements are often snuck into the packet of materials employers give employees on their first day of employment to sign, along with required documents like I-9 forms. In our experience, these arbitration agreements are rarely negotiated or even discussed. And, if the employee refuses to sign them on that first day, the expectation is they will be fired on the spot. The arbitration agreement, never shown to the employee prior to day one, is a condition of keeping the job. That is why they are called forced arbitration agreements .

In a well-reasoned opinion in Bambace, the Court held that the arbitration agreement, which required the Plaintiff to litigate sexual harassment claims in confidential and binding arbitration, violated public policy, injured the public good, and was therefore void and unenforceable. Critically, the Court further rejected Defendant’s argument that the arbitrator, not the Court, should determine whether the sexual harassment claims were subject to arbitration. The Court held that the judge, not the arbitrator, gets to decide whether the terms of the arbitration agreement are contrary to public policy. #endforcedarbitration #timesup #metoo

Employment Law Meets Sports: UT Fires UT Hero Vince Young

Fri, 01 Sep 2023 17:31:39 GMT

On March 9th, 2019, The Associated Press broke the news that The University of Texas fired legendary quarterback Vince Young from his part-time job.

Texas apparently fired Young on March 1st, 2019 following Young’s most recent DUI on February 4th. Texas notified Young of his termination on February 15th – only 11 days after his apparent arrest. UT and Young discussed him providing a letter from a healthcare provider, presumably to apply for FMLA or ADA coverage, but the termination became official on March 1st. After stepping away from the NFL in 2014, Young began working at Texas as a development officer in the Division of Diversity and Community Engagement. The position became part-time in September 2017 to accommodate to Young’s schedule.

Young is arguably the most famous graduate of the University of Texas. Young is beloved for the famous 4th down touchdown run with 19 seconds left in the 2005 National Championship Game to win the game. The Longhorns defeated the favored USC Trojans that year, creating a legacy of football glory for both UT and Vince Young. Young is now regarded as the best or one of the best college football player to ever play the game. Young’s pro career, of course, did not go as smoothly. After an electric rookie season, issues with coaches and disagreements within the organization pushed Young out of the spotlight and into a darker place. After bouncing around team-to-team for a few years, Young finally stepped away in 2014, nine years after his heroic championship win.

But, Young was still a hero in Austin and a hero to Texas fans worldwide. He has of course faced personal issues. His DUI on February 4th was his second in three years. However, Texas apparently claimed that Young’s firing was due to his poor job performance. The University apparently claimed that Young was often absent and did not communicate with his supervisors about his absences and that he was placed on a performance improvement plan in July 2017. However, Young has since received praise for his great work, including a glowing performance review by his supervisor in March of 2018. While it is unclear what Young’s specific responsibilities were at the university, he was making $50,000 for the part-time job.

Within days of the news breaking, Young’s firing was overshadowed by another Texas controversy when news of an FBI investigation against Tennis Men’s Tennis Coach Michael Center broke March 12th. According to Sports Illustrated , federal prosecutors in Boston has charged 50 people in the nationwide college admissions cheating and recruitment scheme, including Center.

UT appears to have taken the position that Vince Young was a poor performer and violated University policy when he was arrested for DUI and so it had no choice but to fire him.

But today, when faced with Center’s arrest by the FBI for mail fraud for an alleged admissions scandal, it apparently placed him on paid administrative leave instead of firing him like it did to Young.

The FBI alleges Center accepted $100,000 worth of bribes in exchange for designating a student as a Longhorn tennis recruit even though the student was not an athlete. Center has been arrested and will appear before a federal magistrate judge .

Texas is an at-will state and employers can fire employees for good reason, bad reason, or no reason at all but not for an illegal reason . Disability and race discrimination are illegal reasons prohibited by law, as is retaliation for making protected workplace complaints. Under certain conditions, alcoholism is a protected disability under the Americans with Disabilities Act. Also, although Texas has over 14,000 employees, less than 800 are black which represents less than 6% of total employees . Similarly, Texas’ 50,000-person student body consists of less than 2,000 black students, majority of whom are athletes.

Texas’ claim that it fired Young for performance despite good performance reviews following his 2017 PIP and his apparent recruiting and fundraising success seems questionable. If Texas fired Young for being arrested for drunk driving, then it should apply that policy and fire all other employees arrested for drunk driving. If it is UT policy to fire an employee who gets arrested, UT would fire Center also, not put him on paid administrative leave. As far as we know from the facts made public, Center was put on paid leave in response to his arrest, and Young was not.

Private and public employers must ensure that all employees are treated equally , especially in disciplinary matters. Singling out employees for discipline is a recipe for disaster. All employers, when taking the ultimate employment action of termination, should act carefully, cautiously, and should ensure their actions do not result in disparate treatment of individuals.

Cavalier Behavior Leads to Lawsuit

Tue, 15 Aug 2023 15:51:22 GMT

The Cleveland Cavaliers’ poor record is not their only concern right now as former assistant coach Jim Boylan recently sued the team for age discrimination.

Boylan, who is 63, filed the lawsuit against the Cavs in November. The Cavs fired Boylan last June after the Golden State Warriors swept the Cavs in the NBA Finals. This was the beginning of the franchise cleaning house by also firing head coach Tyronn Lue in October.

The Cavs decided not to renew Boylan’s contract at the end of June. They also did not renew Phil Handy’s contract, the player development coach. They made this decision a few weeks prior to Cavs’ star LeBron James’ decision to change teams and join the Los Angeles Lakers. While James’ decision was not official until July, a majority of the league anticipated the switch. The Cavs had to enter an entire rebuilding phase with the face of their franchise on his way to sunny California.

It may seem like Boylan’s firing was simply part of a fresh start for the Cavs, but there is more to the story. Boylan was with the team since 2013 and helped guide them to four straight NBA Finals appearances. While LeBron James probably played a bigger role in this success than Jim Boylan, Boylan still has an impressive resume and a track record of success with the organization.

When the Cavs decided to not renew Boylan’s contract, they instead promoted Dan Geriot to a full time assistant and promoted Damon Jones to a “more robust coaching role.” They also promoted Mike Gerrity to director of player development. In August, the Cavs hired Terry Nooner as their new player development coach. So what’s the problem here? All of the aforementioned people are younger than Boylan – significantly younger. Geriot is 29; Jones is 42; Gerrity is 32; Nooner is 40.

Now this could simply be a coincidence, but it is no secret that youth is admired in professional sports, especially in the NBA. Rookies enter the league at 18 or 19 years old; some overseas players are even younger than that. The NBA is a league that treats youth as a presumed advantage. Has this bias bled over to coaching as well?

It seems that franchises assume younger coaches connect better with the players compared with older coaches. Luke Walton, head coach of the Lakers, is one of the most prominent coaches in the league right now at only 38 years old. Walton’s star player, LeBron James, is only four years his junior. The oldest player on the team is Tyson Chandler at 36 years old. 12 players on the team are below 30, 10 are under the age of 25, and one cannot even legally drink yet.

This trend is not specific to the Lakers. Many teams have similar demographics. And, there was.a push to get younger faces in coaching staff after the success of Erik Spoelstra in Miami, who lead the Miami Heat to back-to-back championships at the age of 39, and Brad Stevens, who has taken the league by storm after joining the Boston Celtics as a head coach at the age of 36.

It is no surprise the Cavs have decided to join in on this, but when does it become illegal? When do age related employment decisions break the law?

Age discrimination put simply is discriminating against someone in employment based on age. Only workers over the age of 40 are protected by age discrimination laws . It is illegal to fire, layoff, or demote someone based on their age or refuse to hire someone based on their age.

Now let’s revisit Boylan’s claim. He is part of this protected class because he is 63 years old. He was replaced by someone under the age of 40. But the Cavs also went on to hire someone who is 40, so is this age discrimination ?

This story gets interesting when you look at the evidence Boylan will likely present. Boylan disclosed a voicemail from the then-coach Tyronn Lue informing Boylan he would be fired. The voicemail says, “They’re not gonna pay that kind of money for three assistants on the bench. He wants to go younger in that position and, you know, find somebody who’s a grinder and younger in that position.” In this voicemail, Lue is referring to General Manager Koby Altman as “he.” Team owner Dan Gilbert and Altman are the defendants named in the case. Lue reiterated this same sentiment at the end of the voicemail, “So he just said he wanted to go younger at that position and he does not want to pick up the option.”

Given the information provided by this voicemail, Boylan likely has a decent potential discrimination case. Additionally, he is not the first NBA coach to pursue this type of case. Lakers legend Elgin Baylor filed a similar suit against the Los Angeles Clippers in 2009. Baylor claimed he was forced out of his job of 22 years as general manager because of his age. Baylor was in his 70s at the time. However, he did not win the case. The Clippers organization claimed Baylor left the team on his own and the team’s record under Baylor was the primary issue, not Baylor’s age. The Clippers’ best record under Baylor was 47-35, which is far from legendary.

As far as Boylan’s case goes, we will have to see it play out. His claim seems to hold some weight, but that is ultimately for a jury, judge, or arbitrator to decide.

Huge Southern California Sexual Harassment Settlement

Tue, 01 Aug 2023 15:46:17 GMT

The LA Times reported that last month that Cal State Los Angeles settled a sexual harassment lawsuit in the athletic department.

Former high-ranking athletic department official Sheila Hudson sued former athletic director Mike Garrett and the university in August 2016. Hudson alleged Garrett sexually harassed her. Hudson also alleged the school violated the California Fair Employment and Housing Act by failing to give her equal pay for her work.

Athletics is a male-dominated field with a history of mistreatment of female employees. America’s gender wage gap is no secret: the average woman makes $0.80 on the dollar compared to their male counterparts. In male-dominated industries and spaces like university athletics, the pay gap is even worse. Female athletes and coaches make far less than their male counterparts. Hudson’s lawsuit raises issues of sexual harassment and equal pay in college sports.

Hudson alleged claims of sexual harassment against Garrett regarding the language he used when addressing female employees. The lawsuit claimed he used the words “sweetheart,” “love,” and “babe” when talking to female employees. Hudson also alleged that Garrett “exploded” when she raised this issue to him. Garrett, a Heisman winner, was the athletic director at USC from 1993-2010 before holding the same position at Cal State LA. Garrett was the athletic director at Cal State for less than a year before retiring in mid-2016.

Hudson joined Cal State LA as an assistant track and field coach in 2002. She eventually earned the title of senior associate athletic director before leaving the position in May 2017. In the lawsuit, Hudson accused the school of retaliation after she made a report highlighting the pay gaps between men and women in the athletic department.

The settlement awarded Hudson $1.27M and her attorneys $1.47M, for a total settlement worth $2.75M. The settlement also resolved the school’s counterclaims against Hudson, in which it alleged Hudson violated California law by secretly recording conversations with four employees. As part of the settlement, Hudson had to delete any social media postings about the lawsuit. She is also barred from applying to any future jobs at any California State University.

Although this was a California case, the huge settlement is a reminder to Texas university employees that you have the right be free from sexual harassment and retaliation in academia and higher education. Know your rights, speak up, and speak out !

CBS’ $9.5M Hush Money

Sat, 15 Jul 2023 15:40:52 GMT

TA new article by The Times exposes a $9.5 million settlement between CBS and actress Eliza Dushku following her claims of sexual harassment.

Although the parties settled in January 2018, the agreement just came to light.

Dushku signed onto CBS’s jury consultant television show, “Bull,” in March of 2017 to act in a major role in three episodes. The producers of the show mentioned to Dushku that they were interested in her as a full-time cast member.

Dushku allegedly quickly became the target of inappropriate comments by the star of the show, Michael Weatherly. After making a rape joke directed at Dushku, Dushku reported Weatherly to the show’s producer, Glenn Gordon Caron.

Dushku and Caron agreed that Dushku should confront Weatherly about the inappropriate conduct and ask him to stop. She did exactly that and specified the exact things he said that offended her. Following their conversation, as a later investigation finds, Weatherly texted the president of CBS Television Studies, David Stapf, to say he wanted to talk about Dushku‘s sense of humor.

A few days later, CBS tells Dushku she is written off the show. She quickly goes from rising star to unemployed. According to Caron, he “didn’t know how to write” her into the show anymore, which contradicted his earlier plan of using her on the show long-term.

Dushku contacted a lawyer and filed a retaliation lawsuit against CBS. She then went to mediation with the company, where the case was settled privately and, until now, confidentially.

In the past year, sexual harassment allegations against prominent men at CBS have come to light with three well-known men getting fired or pushed out. CBS decided to hire a team of lawyers to investigate and report on this alleged misbehavior and sexual harassment within CBS. This report, which recently became public, included the settlement reached between the two parties and the specific details of sexual harassment including text messages and video outtakes.

The truth came to public light almost a year after the initial confidential settlement. Dushku spoke to the producer about what to do and confronted her harasser. CBS fired her only days later. But, Title VII of the Civil Rights Act (and similar Texas laws) prohibit firing employees for opposing sexual harassment in the workplace . Not only did Dushku suffer sexual harassment, the embarrassment of coming forward, and the awkwardness of confronting the harasser—she also got fired.

CBS compensated Dushku with her expected pay for the four seasons of shooting they wrongfully denied her, $9.5M, but we know the pain she suffered and the humiliation she endured cannot be repaired.

Dushku is a public figure who endured a classic example of the kind of illegal retaliation and sexual harassment that thousands of Texans experience in the workplace every year and no one should put up with. If anyone – you, your friends, family, or co-workers – face a similar situation, they should seek legal counsel as soon as possible because of very short deadlines. Speak up and speak out!

SCOTUS Issues Landmark Epic Systems Employment Opinion

Thu, 15 Jun 2023 15:26:54 GMT

BREAKING: SCOTUS issues landmark Epic Systems employment #forcedArbitration opinion. What does it all mean?

Quick explainer: at least 36 million employees are already subject to a #forcedArbitration clause. That means when something goes wrong (e.g., the company fails to pay wages or commissions, your boss sexually harasses you) you have incredibly already waived your 7th Amendment right to bring the issue before a jury of your peers, and are instead forced into a private confidential dispute resolution system with a fact-finder who is paid by your employer. The worst part is: most people aren’t even aware they’ve waived these constitutional rights.

Today, the Supreme Court held that #forcedArbitration class and collective action waivers are valid. What does that mean? Class and collective actions are ways to join many employees into one action against an employer. For example, if an employer paid men more than women for the same job, all women could join up into one class/collective action to make a stronger case against the company.

Starting today, we expect that will be impossible for employees at the majority of employers. This #EpicSystems ruling will make it much hard for victims of pay equity discrimination and unpaid overtime to recover what they deserve.

Your Age Discrimination Rights

Thu, 01 Jun 2023 15:22:08 GMT

According to multiple breaking news sources, IBM is now “ facing allegations of rampant age discrimination .”

Age discrimination in technology is rampant and unchecked. Unfortunately, few affected individuals take action within the required time frame. When they do, as was the case with this $1.5m verdict against IBM for age discrimination , it can be significant.

A recent investigative report by ProPublica, an independent nonprofit newsroom, finds that IBM almost certainly targeted individuals over 40 for layoffs, Resource Actions (RA’s), Reduction in Force (RIF’s), or firings.

These allegations may include employees in Austin, Texas, Dallas, Houston, and other parts of Texas in their 40’s, 50’s, and 60’s who were top performers.

ProPublica claims IBM stacked the deck against older workers by also allegedly encouraging worker retirements and resignations to try to avoid liability for an RA.

One reason IBM may not have faced legal scrutiny for age discrimination so far is that it allegedly did not inform older workers of their rights as required by the Age Discrimination in Employment Act .

Most disturbingly, IBM apparently replaced older US workers with younger workers in foreign countries: “ ProPublica reviewed documents that show that a substantial share of recent IBM layoffs have involved what the company calls “lift and shift,“ lifting the work of specific U.S. employees and shifting it to specific workers in countries such as India and Brazil. For example, a document . . . for 2015 lists nearly a thousand people as layoff candidates, with the jobs of almost half coded for lift and shift.” According to the report, “ many of the workers reportedly had to train their own replacements .”

IBM’s response to this breaking story so far is to issue a statement saying that they are “ proud of our company .”

You have a right not to be laid off of fired because of your age. Affected individuals may include anyone over 40 who was subject to an RA from June 2017 until today, including employees in any employer subject to practices such as “lift and shift” where they trained their younger replacements. Critically, affected individuals may include those who signed a severance package or accepted retirement if, as apparently was the case for some of IBM’s RA, the severance did not include a waiver of federal age claims .

Laid off workers must take immediate action to protect their rights, or those rights may be waived. Age discrimination claims under federal law have strict timelines. Affected employees must file claims with the EEOC within 300 days of a layoff-off or RA, a deadline that may be fast-approaching for those who were laid off around the summer of 2017. If you or a friend, colleague, or loved one was affected by age discrimination in technology employment , reach out and speak to competent counsel as soon as possible to determine the options, or risk waiving those claims forever.

Stop Sexual Harassment, Sexual Assault, and Retaliation in Central Texas

Mon, 15 May 2023 15:16:23 GMT

Sexual Assault, workplace sexual harassment, and workplace retaliation are against the law in Texas.

If you are dealing with these issues, you need to know you are not alone and that help is available. If you are in immediate harm, call the police. You can also call the SAFE Alliance , which has a 24 hour hotline: 512-267-SAFE.

Once you are out of harm’s way, you should think about whether it is appropriate to consider taking remedial action and what action to take. Here is a run-down of some potential civil claims relating to these issues, and how they might apply:

Any unwanted physical sexual contact is a likely violation of the Texas common law against civil sexual assault. This includes any conduct that forces you to join in unwanted sexual intercourse or other sexual contact. If you are a victim of sexual assault, seek help immediately. Get away, call the police, and visit a medical professional. If you can, preserve any proof of the incident (texts, calls, audio, video, etc.)
Sexual assault is equally illegal on the street , at home, or at work. It is equally illegal if done by someone you know or someone you don’t. There does not need to be a tie to the workplace to bring a claim for sexual assault. But, if you are sexually assaulted by someone at work, you have options. You can sue the individual for the assault. If the assaulter is a coworker, you may be able to sue your employer for sexual harassment. Whether it involves discrimination, wage disputes, harassment, or contractual violations, employment law attorneys such as the ones from HKM strives to protect the rights of employees and help them achieve fair and just resolutions.
If the assaulter is a supervisor, your employer may be directly liable for the assault under a vice-principal negligence theory, according to recent 2017 guidance from the Texas Supreme Court. This long-overdue update to Texas harassment law provides that employers must be responsible the acts of their agents if their agents cause sexual harm to employees.

Workplace sexual harassment is a silent career assassin . You do not need to be quiet about harassment if you are experiencing it, you need to blow the whistle. Harassment is not your fault, and it is your company’s responsibility to keep your workplace safe from harassment.

Sexual Harassment is prohibited in most Texas workplaces with 15 or more employees by both federal law (Title VII of the Civil Rights Act of 1964) and state law (Chapter 21 of the Texas Labor Code). There are important deadlines for sexual harassment claims. In Texas, you must file a Charge of Discrimination with the EEOC (or TWC, or if in Austin, the City of Austin Equal Employment & Fair Housing Office) within 180 days of the latest instance of sexual harassment in order to preserve all of your potential claims. In other words, you need to act fast. A different legal standard applies depending on whether the harasser is a supervisor (generally, someone with the power to hire and fire) or a non-supervisor. If a supervisor harasses you, your company may be directly liable. If a non-supervisor harasses you, your company can defend the case in some circumstances by saying you failed to properly report the issue, or that the company took all necessary steps to fix the harassment problem.

To be sure you meet the requirements of the different standards, it is a best practice to report every instance of harassment internally at your company. You can report it to either your supervisor, your supervisor’s supervisor, or human resources (HR). If the company has a reporting process in the handbook, you should try to follow it. It is a best practice to keep a copy of your reports in writing. If you make a report or complaint verbally, send a follow-up email or text so you have a record of opposing harassment when you did.

The laws prohibiting Sexual Harassment in Texas are unfortunately limited to the workplace — in other words, there is no general prohibition against sexual harassment on the street that has nothing do with your job. In that event, there are prohibitions against sexual assault and defamation that may apply, depending on the situation.

If you are brave enough to blow the whistle and report harassment at work, you may be wondering what protection you have. State and federal law prohibits retaliation in most Texas jobs. In other words, at most employers with 15 or more employees, you are protected by law in reporting harassment at work. And, if your employer fires you because you reported harassment, the company may have broken the law against retaliation. Retaliation is one of the most frequently filed EEOC charges. The EEOC processed more than 41,000 retaliation charges in 2017. 4,740 of those were in Texas.

If you are brave enough to consider standing up to sexual assault, sexual harassment, or retaliation, know that you are not alone, you have a right to get help, and that you may also have legal rights that may protect you .

Can We Improve Diversity and Inclusion in the Workplace?

Mon, 01 May 2023 15:09:08 GMT

In October 2017, Kaplan Law Firm Founder and Managing Partner Austin Kaplan joined other leaders in workplace diversity initiatives for a panel discussion on best practices for workplace diversity and inclusion in ATX.

This event was part of the Austin Bar Association’s Labor & Employment Section’s continuing legal education series.

Can we improve diversity and inclusion in the workplace?

The panelists delved into the crucial objective of promoting diversity and inclusion in the workplace, addressing the challenges hindering its achievement. While many businesses are eager to recruit a diverse workforce, they often find themselves navigating the delicate balance due to concerns about reverse discrimination claims, all while standing against biased actions in the workplace .

Recurring themes raised by the panelists included that companies must make a commitment to diversity, take micro-aggression and bullying seriously, and focus on a supportive and inclusive the tone at the top. Panelists criticized the frequent practice in which companies task their diverse employees to form a diversity committee, but give that committee little power while few or no non-diverse company leaders join it.

You might ask yourself:

Is your business workplace a diverse and inclusive space? What could you do to improve business workplace? Are you planning to do those things? When? Kaplan Law Firm is committed to diversity and inclusion, and to fighting against workplace discrimination and retaliation .

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#MeToo? What Rights Do You Have to Be Free of Workplace Sexual Harassment or Assault in Texas?

Sat, 15 Apr 2023 15:05:40 GMT

“Me, too"

If all the people who have been sexually harassed or assaulted wrote “Me, too” as a status, we might give everyone a sense of the magnitude of the problem.”

We have a big problem.

In response to a simple question, women all over the world took to social media this week to let the world know that they too have experienced sexual harassment or sexual assault.

YOU HAVE A RIGHT TO BE FREE FROM SEXUAL ASSAULT AND HARASSMENT AT WORK

In Texas, what are your rights, and what do you do if someone is harassing or has assaulted you?

THE LAW PROHIBITS SEXUAL HARASSMENT

Both Texas state and federal law prohibit harassment in companies that employ 15 or more employees for 20 or more weeks of the year. The applicable Texas law is Chapter 21 of the Texas Labor Code. The applicable federal law is Title VII of the Civil Rights Act of 1964. As a general rule, the individual harasser is not liable for the workplace harassment, the company is. You have a right to be free from coworker and third party harassment, but if the harasser is your supervisor, you may have an even stronger claim against the company for failing to root out harassment in the workplace and keep people like you safe while they work.

There are two kinds of sexual harassment: quid pro quo and hostile work environment.

Quid pro quo harassment is when someone offers or merely hints that they will give you something (e.g., a raise or a promotion) in return for your satisfaction of a sexual demand. An offer like that, all by itself, is illegal. You can and should consider taking action if you experience this.

Hostile work environment is when sexual harassment at work becomes so severe or pervasive that it alters the conditions of your employment and creates an abusive working environment. However, offhand comments or isolated incidents may not be enough to violate the law. So, is what you experienced illegal, or awful, painful, hurtful, and terrible, but not illegal? These are fact-specific inquiries, but after reviewing the facts, an employment lawyer would know.

THE LAW SEPARATELY PROHIBITS SEXUAL ASSAULT

Texas common law prohibits assault (sometimes called “battery,” or, an unwanted touching), whether within or outside the workplace. You can bring a claim against the person who committed the assault. You can also bring a claim, under certain circumstances, against your employer if a supervisor assaults you under new precedent from the Texas Supreme Court, the B.C. v. Steak and Shake case from 2017.

YOU HAVE PROTECTION FOR SPEAKING OUT

Texas and federal law prohibit retaliation for making a good faith complaint to human resources or a supervisor opposing sexual harassment or discrimination in the workplace. If you can, make a record of your complaint or complaints.

YOU MAY BE REWARDED FOR SPEAKING OUT

Damages in sexual harassment cases can result in compensatory and punitive damage awards of up to $300,000, as well as back wages, front wages, attorneys’ fees, and court costs. Physical assault cases, such as rape or sexual violation in the workplace, may result in significant additional damages.

HOW TO BLOW THE WHISTLE

This behavior is not your fault, and it is unfair that it is your problem. But, often the best approach is to confront it.

It takes courage to blow the whistle on this behavior. It affects you personally and professionally. As we learned on social media, many people are dissuaded and never blow the whistle. Do not fall into that trap if you can avoid it. You can do handle workplace harassment, discrimination, or assault by yourself by making an internal complaint or going to the EEOC. If you decide you would like help, an employment attorney can help walk you through the process and the expectations, and be there as your sounding board as you move forward. You do not have to go down this road alone. Some potential steps include making and documenting internal complaints, filing a charge with the EEOC, and, if negotiations fail or your rights are still being violated, filing a lawsuit. You can go it alone, but having an attorney can be invaluable in pursuing your claims and solving these problems.

YOU CAN AFFORD AN ATTORNEY

There is a myth that attorneys are out of reach for victims of workplace sexual harassment or assault. Depending on the facts of your case, hiring an attorney can be extremely affordable. Attorneys may handle cases like these on contingency (meaning you pay little or nothing, and the attorney takes a percentage of your recovery at the end from the employer or harasser), hourly (the attorney bills your for only the time they spend fighting for you to be free from harassment), or flat fee (a set rate for pre-determined work such as assistance with filing an EEOC charge). Call the attorneys and ask, most provide free initial consultations.

The most important thing, whether or not you decide to hire an attorney, is: do not delay. Sexual harassment and discrimination cases can have extremely short timelines. If you are reading this, and think you may have been the victim of harassment, take action as soon as you can.

Together, by speaking out, we can work towards a better world and better workplace, free from harassment and discrimination .

Do Bar/Restaurant Workers Have a Right to be Free from Racism and Sexual Harassment, and to be Paid Fairly?

Sat, 01 Apr 2023 15:00:22 GMT

Bar owners in Austin, Texas have recently come under scrutiny for making allegedly hostile, racist, sexist comments.

You may be wondering, can employers use racism and sexism as they please, or do employees have rights in such situations?

Allowing racist and misogynistic behaviors to enter into the workplace can quickly become a violation of employees’ state and federal rights. For example, if an owner or supervisor offers an employee job advances in exchange for sexual favors, that action may violate state and federal laws such as Title VII of the Civil Rights Act and/or Chapter 21 of the Texas Labor Code, both of which prohibit workplace sexual harassment . Sexual advances and groping in the workplace may violate the same laws. Likewise, if an employer makes racist or derogatory statements, or takes action on the basis of an employee’s race, that too may translate into a violation of the employees right to be free from racial discrimination and/or national origin discrimination. STEM mentorship can also help promote diversity and inclusion in the workplace. By connecting people from diverse backgrounds and experiences, mentors like Kamau Bobb Google help break down barriers and create opportunities for underrepresented groups in the STEM fields.

And, when it comes to bars and restaurants in particular, employees may want to be especially vigilant about their pay. Federal wage laws may be violated whenever a prohibited individual (e.g., a chef, back-of-the-house expo, dishwasher, manager) takes part in a tip pool. Also, employers generally should pay tipped employees at least the federally required wage of $2.13 per hour, plus overtime for all hours worked over 40 in a workweek. Things like tip shaving or time shaving are generally prohibited, and penalties can be severe. Nonetheless, local practitioners believe such violations are rampant in the industry . Failure to follow these rules may result in a violation of the state and federal rights of bartenders, barbacks, bouncers, waiters, servers, hostesses, and other bar/restaurant staff.

Kaplan Law Firm Secures $219,500 National Collective Action Settlement for Workers’ Unpaid Wages

Wed, 01 Mar 2023 15:10:29 GMT

Unpaid interns across the country are recovering significant settlements. The latest news of a settlement broke today . According to Reuters:

Kaplan Law Firm, PLLC and co-counsel Central Texas attorney Edmond Moreland recently settled a nationwide wage and hour collective action on behalf of 46 plaintiffs located across the country, including a plaintiff in Austin, TX. The total maximum settlement value was $219,500, with $88,000 in attorneys’ fees and expenses, and a maximum amount of $131,500 available to be claimed by plaintiffs and the settlement class.

“This settlement was the result of persistent and thoughtful negotiation. I am pleased that we reached an agreement right here in Texas that ensures that hard-working people, from Austin all the way to the East and West Coasts, will have the opportunity to receive just compensation for the hours they worked. It is an honor and a privilege to be able to do this work, and to seek out and secure justice for these workers,” Austin Kaplan said.

Kaplan Law Firm, PLLC is an employment and civil rights firm in Austin serving clients throughout Texas. Founder Austin Kaplan was recently selected as a Super Lawyer Rising Star by Thomson Reuters and is a finalist for the 2016 Austin Under 40 Awards in the legal category. An active member of the community, Kaplan is President-Elect of the Austin Young Lawyers Association and the Former Chairperson of the City of Austin’s Ethics Review Commission.

I am in a committed same-gender relationship. Am I entitled to get married, and then get benefits?

Wed, 15 Feb 2023 13:52:47 GMT

Yes.

On June 26, 2015, the U.S. Supreme Court in Obergefell v. Hodges , 576 U.S. ___, No. 14-556 (June 26, 2015), held that the Equal Protection and Due Process Clauses of the Fourteenth Amendment require marriage for same-sex couples be afforded “on the same terms as accorded to couples of the opposite sex.” Id. , slip op. at 27.

The opinion took effect immediately upon issuance.

Texas County Clerks began issuing marriage licenses shortly after the opinion was issued, on June 26, 2015 .

The state of Texas, including all public employers, began providing benefits to married same-gender couples as of July 1, 2015.

If you are in a committed same-gender relationship, are otherwise qualified to be married, and have been denied the right to marry since June 26, 2015, your rights may have been violated.

If you are married to a spouse of the same-gender, and have requested but are being denied benefits that opposite-gender married couples receive, your rights may have been violated.

To quote a lawyer who normally defends businesses: “The Supreme Court decision is very broad. This issue is done. Make the changes and move on.”

The Company Says I’m An Independent Contractor. Can I Get Overtime?

Wed, 01 Feb 2023 13:57:40 GMT

Employee misclassification costs the state of Texas millions of dollars each year. Employers who knowingly misclassify employees are also likely committing payroll and tax fraud. If you are paid “under the table” by your employer, your employer has also likely violated multiple laws.

If you are considered an “ Independent Contractor ” or a “ 1099 ” but are subject to an employer’s control ( i.e., your boss tells you how to do your job, when to show up, how much to charge, gives you tools, and disciplines you) or you are dependent on your employer for work , you may be a misclassified employee, and may have legal rights and significant claims to significant amounts of unpaid overtime. Examples of often misclassified workers include legal assistant, oil field workers, technology workers, and software programmers.

Additionally, lawsuits are pending across the country against Uber, Lyft, Instacart for misclassification. If you work for one of these companies, you should contact an employment law attorney today to find out your rights.

Texas Law provides relatively weak protections for workers who are misclassified. However, you still have rights. Private, civil lawsuits under federal law provide strong protection for workers who are misclassified, and are the primary method of holding employers who are breaking this law accountable. If you were misclassified and worked more than 40 hours in any workweek, you may have a claim for unpaid overtime.

If you have been illegally classified as an independent contractor by your employer, it is important that you file a lawsuit immediately, for two reasons:

Timelines for these lawsuits are short; and
Wage and Hour / Overtime / Misclassification / Minimum Wage lawsuits are the only way to ensure a level playing field among businesses (to avoid giving an unfair advantage to business that illegally fail to pay employees overtime and other required wages), and to avoid worker exploitation.

Similarly, if you were classified as an independent contractor and paid overtime, but are now being paid on salary and are being asked to do the same tasks and work overtime without additional pay, you may be entitled to compensation for that overtime work.

If you are an independent contractor but think you may actually be an employee or you are salaried and are no longer being paid overtime like you used to be, you may be entitled to compensation and your rights may have been violated.

Am I Bound by this Non-Compete Agreement?

Sun, 15 Jan 2023 16:20:19 GMT

Non-compete agreements (sometimes called non-competition agreements or covenants not to compete, and often including non-solicitation of employees and non-solicitation of customers) are increasingly common across all levels of employees. Historically, these agreements were reserved for key employees with highly specialized know-how or training, or employees who had “the keys to the castle” for the employer (picture the handful of people who know the formula for Coke).

Recently, employers have greatly expanded their use of non-competes. Employers in Texas have made fire inspectors, hairdressers, and fitness professionals sign non-competes. Famously, the sandwich chain Jimmy Johns makes the employees who assemble the sandwiches sign non-competes .

Some examples of employees who are often bound by such agreements include:

software developers
programmers
supervisors and managers
sales executives
sales managers
brand and content managers
engineers

There is a nationwide conversation taking place about the use of non-competes. As many commentators have recently discussed, companies gain great protection from these agreements, and there is little downside to making employees sign them.

For employees who have not yet signed a non-compete agreement , they can seek out legal advice as to the potential affect of that document, and provided they have leverage, can negotiate its terms. This up-front negotiation can be very valuable to the employee in the long run.

Unfortunately, lawyers who represent individuals usually see a non-compete for the first time as the employee is on the way out of the company or gearing up to leave and compete, either with an existing competitor or by opening up their own competing business.

The key questions in that scenario are:

Is the non-compete agreement enforceable?
What does is prohibit me from doing?
If I think I might violate it, what is my exposure, and given that exposure, how should I proceed?

Unpaid Interns

Sun, 01 Jan 2023 16:33:48 GMT

Unpaid interns across the country are recovering significant settlements. The latest news of a settlement broke today . According to Reuters:

Viacom Inc agreed to pay $7.21 million to settle a class-action lawsuit by thousands of former interns who said the owner of Comedy Central, MTV and Nickelodeon did not pay them, despite their having done work similar to paid employees.

This settlement would cover roughly 12,500 interns, and is pending approval by the court. Although these claims are increasingly common elsewhere, they seem to be just getting started in Texas.

Folks who work or have worked as unpaid interns may be able to sue for back wages, liquidated damages of twice their back wages, unpaid overtime, and the attorneys’ fees incurred exercising their right to be paid a fair wage.

But, the law has strict deadlines, and every week that goes by could mean lost claims, so do not delay in determining whether your rights have been violated.