Wash & Thomas Blog
Commentary on Employee Rights, Bankruptcy, Personal Injury, and Social Security Disability laws in Texas

Texas Employee Rights

Can An Employer Enforce An “English-Only Rule” At Work?
By Danny Wash

The question comes up frequently as to whether an employer can enforce an “English-only” rule at work. Here is what the EEOC says about it:

The EEOC has stated that rules requiring employees to speak only English in the workplace violate the law unless they are reasonable necessary to the operation of the business.
A rule requiring employees to speak only English in the workplace at all times, including breaks and lunch time, will rarely be justified.
An English-only rule should be limited to the circumstances in which it is needed for the employer to operate safely or efficiently.
Circumstances in which an English-only rule may be justified include: communications with customers or coworkers who only speak English; emergencies or other situations in which workers must speak a common language to promote safety; cooperative work assignments in which the English-only rule is needed to promote efficiency.
Even if there is a need for an English-only rule, an employer may not take disciplinary action against an employee for violating the rule unless the employer has notified workers about the rule and the consequences of violating it.

September 24th, 2014 Comments Off

Who Is the Employer? “Sue Them All and Let the Court Sort it Out”
By Danny Wash

The issue of who is the employer is a constant source of headaches for attorneys, especially in employment cases. In most employment cases involving discrimination a complaint must be first filed with the Equal Employment Opportunity Commission (EEOC) or the state agency, which here in Texas is the Texas Workforce Commission-Civil Rights Division (TWCCRD). The problem is for whom did the employee actually work?

This problem is presented almost every time I have a case. Usually, it is unclear and very murky. The employer uses a common name, such as “Universal Widget,” when the actual name of the company may be “Universal Widget, Incorporated” or “Universal Widget LLC.” This issue was discussed in the recent federal case in the Fifth Circuit, entitled “Equal Employment Opportunity Commission v. Simbaki, Ltd. dba Berryhill Baja Grill & Cantina.” The Fifth Circuit discussed the area of the difficulty in naming the true employer and the exceptions to the named-party rule that requires the exact employer be named. The trial court ruled that a person who was not represented by an attorney before the EEOC would be able to use the exceptions while a person with an attorney would not. The Fifth Circuit reversed this ruling holding that a person with an attorney could also benefit by the exceptions to the requirement to name the exact employer.

Finding the exact employer is difficult, even for an attorney. Sometimes employers use a trade name but the real employer is another corporation with a different name. Oftentimes, the paycheck to the employee is issued by a payroll service or another company that owns several companies, one of which actually employees the injured employee.

In my practice, I often have to name several companies hoping we hit the correct one until a lawsuit is filed and the true employer can surface. My motto is like the saying in the Old West regarding who is the guilty party: “shoot them all and let God sort it out” or a more precise rendition in a suit: “sue them all and let the Court sort it out.”

The Texas rules of civil procedure has a rule number 28 which states that: “Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the cout’s own motion the true name may be substituted.” However, in order for a party to take advantage of Rule 28 there must be a showing that the named entity is in fact doing business under that common name. KM-Timbercreek, LLC v Harris Cty. Appr.Dist., 312 S.W.3d 722 (Tex.App.-Houston 2013). I usually look at the sign the entity is using or the name they use in the telephone book or website. The use of this name will usually be enough to get whatever entity is behind it utilizing it in a business (at least in Texas state court). The issue of whether this would be enough in a TWCCRD or EEOC complaint has not been ruled upon. The best practice is to use the common name and then also include the other more specific company names; however, this can get expensive in a suit because each party increases the filing and service fees.

September 19th, 2014 Comments Off

By Danny Wash

Ihegword v. Harris County Hosp. Dist., 555 Fed. Appx. 372 2014 (5th Cir. 2014)

Fair Labor Standards Act (FSLA)- In this FLSA action, the district court granted summary judgment in favor of the employer because the employee failed to raise a genuine issue of material fact that the employer permitted the employee to work overtime hours for which he was not paid, as an unsubstantiated and speculative estimate of uncompensated overtime did not constitute evidence sufficient to show the amount and extent of that work as a matter of just and reasonable inference.
The FLSA mandates that no employer shall employ any of his employees for a workweek longer than forty hours unless such employee receives compensation for his employment in excess hours over forty at a rate not less than one and one-half times the regular rate at which he is employed. An employer who knows that an employee is working overtime cannot stand idly by and allow an employee to perform overtime work without proper compensation, even if the employee does not make a claim for the overtime compensation. If the employee fails to notify the employer or deliberately prevents the employer from acquiring knowledge of the overtime work, the employer’s failure to pay for the overtime hours is not a violation of 29 U.S.C.S. § 207
An employee bringing an action pursuant to the FLSA, based on unpaid overtime compensation, must first demonstrate that he has performed work for which he alleges he was not compensated. An employee has met his burden of proof if he proves that he has performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negate the reasonableness of the inference to be drawn from the employee’s evidence. If the employer fails to produce such evidence, the court may then award damages to the employee even though the result may only be approximate.

Crane v. Gore Design Completion, LTD, 2014 U.S. Dist. LEXIS 72780 (US. District Ct. Western District, San Antonio Division)

Family & Medical Leave Act (FMLA)- An employee allegedly fired in violation of the FMLA , 29 U.S.C.S. § 2601 et seq., produced sufficient evidence to present a jury question as to whether the 15-day deadline in 29 C.F.R. § 825.305(b) for health care provider certification should be tolled, given her efforts to obtain certification from her provider and her communication with her supervisor regarding her difficulties. Also, her failure to ever submit the FMLA certification was reasonable because she was fired shortly after the 15-day deadline, and the failure to provide it did not cause her leave to be unprotected. Because the employer did not offer a legitimate or nonretaliatory reason for terminating the employee, she was not required to prove pretext regarding Defendants’ stated reason for termination in order to show retaliation. Equitable tolling of the 15-day compliance period for a health care provider’s certification of leave under 29 C.F.R. § 825.305(b) of the FMLA requires that it not be practicable for an employee to return certification within 15 days. Courts focusing on practicability have looked to unique circumstances causing impracticability. Employers must be mindful that employees must rely on the cooperation of their health care providers. Therefore, employees should not be penalized for delays over which they have no control. While the Department of Labor regulations state that if an employee never produces a health care provider’s certification of leave, the leave is not FMLA leave, this regulation does not require that an employee submit certification if that employee is fired before the deadline to submit certification expires. Termination during the mandatory 15-day compliance period could itself be deemed an FMLA violation. By implication, if the deadline is expanded because of equitable tolling, termination within the expanded deadline could likewise be an FMLA violation.

Tex. Dep’t of Family & Protective Servs. v. Howard, 429 S.W.3d 782 (Tex. App. Dallas 2014)

Disability Discrimination- In a disability discrimination claim under Tex. Lab. Code Ann. § 21.051(1), the employer, the Texas Department of Family and Protective Services (the Department) filed a plea to the jurisdiction based on governmental immunity. The trial court denied the plea. In its sole issue before the court of appeals, the Department contended the trial court erred in denying its plea to the jurisdiction because the employee did not create a fact issue on her prima facie disability claim. To establish a prima facie case of disability discrimination under Tex. Lab. Code ch. 21, a plaintiff must show (1) he has a disability, (2) he is qualified for the job, and (3) he suffered an adverse employment decision because of his disability.
“Disability” is broadly construed and includes an impairment that is episodic or in remission that substantially limits a major life activity when active. Tex. Lab. Code Ann § 21.0021(a)(1), (2). In chapter 21, “major life activity” includes, but is not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. The term also includes the operation of a major bodily function, including, but not limited to, functions of the immune system, normal cell growth, and digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Tex. Lab. Code Ann § 21.002(11-a). An impairment “substantially limits” if the individual is unable to perform a major life activity that the average person in the general population can perform; or significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
The determination of whether an impairment substantially limits a major life activity is made without regard to the ameliorative effects of mitigating measures, including medication. Tex. Lab. Code Ann. § 21.0021(b)(1). Discrimination because of disability or on the basis of disability applies only to discrimination because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job. Tex. Lab. Code Ann. § 21.105
Tex. Lab. Code Ann § 21.128 provides that it is an unlawful employment practice for an employer to fail to make a reasonable workplace accommodation to a known physical or mental limitation of an otherwise qualified individual with a disability who is an employee , unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the business of the employer. The elements of a claim for an employer’s failure to accommodate a disability overlap the elements of a disability-discrimination claim. To prove failure to accommodate, the plaintiff must show (1) the plaintiff has a disability, (2) the employer had notice of the disability, (3) the plaintiff could perform the essential functions of the position with reasonable accommodations, and (4) the employer refused to make such accommodations.
The Department did not establish as a matter of law that the employee did not have a “disability” because the employee testified that she had muscle spasms that immobilized her, caused her to lie down, and prevented her from lifting anything, raising a genuine issue of material fact that she suffered a physical impairment substantially limiting the major life activities of walking, standing, lifting, and working. For purposes of the employee’s failure-to-accommodate claim under Tex. Lab. Code Ann. § 21.128, the employer conclusively disproved that the employee could perform the essential functions of the position of case aide with an accommodation allowing her to work part time doing office work because driving was 75 percent of her duties. The court of appeals concluded that the Department did not show the trial court erred by denying the Department’s plea to the jurisdiction concerning Howard’s claim for disability discrimination under section 21.051.

Rodriguez v. City of Poteet, 2014 Tex. App. LEXIS 2136 (Tex. App. San Antonio Feb. 26, 2014)

Disparate Treatment Discrimination- Rodriguez claimed that the City’s reason for terminating him was a pretext for retaliation and age discrimination because another employee violated the sexual harassment policy and received less severe disciplinary action. Rodriguez pointed to a November 2009 incident where Ramos verbally counseled Bermudez after one of Bermudez’s subordinates, William Gonzalez, complained about comments Bermudez made at the home of Gonzalez’s mother concerning Gonzalez’s wife. To establish disparate treatment, Rodriguez must demonstrate that he and Bermudez were “similarly situated” employees and that Bermudez was treated more favorably under “nearly identical circumstances.” Wheeler v. BL Dev. Corp., 415 F.3d 399, 406 (5th Cir. 2005) (quoting Mayberry v. Vought Aircraft Co., 55 F.3d 1086, 1090 (5th Cir. 1995)). Rodriguez and Bermudez must be similarly situated in “all material respects, including similar standards, supervisors, and conduct.” Ysleta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005). Rodriguez and Bermudez are not “nearly identical” if they have “different responsibilities, supervisors, capabilities, work rule violations, or disciplinary records . . . .” AutoZone, Inc. v. Reyes, 272 S.W.3d 588, 594 (Tex. 2008). Rodriguez and Bermudez are not “similarly situated” in several respects. First, Bermudez’s supervisor was Rodriguez at the time of Gonzalez’s complaint and Rodriguez’s supervisor was Matthews at the time of his termination. Additionally, different decision-makers were involved in the two incidents. The decision to only verbally counsel Bermudez and not pursue a formal investigation was made by Ramos. The decision to terminate Rodriguez was made by the city council and the decision to pursue a formal investigation was made by Matthews. Grimes v. Wal-Mart Stores Texas, L.L.C., 505 F. App’x 376, 379 (5th Cir. 2013) (plaintiff’s subordinate who was also a manager not a valid comparator); Crosby v. Computer Sci. Corp., 470 F. App’x 307, 309 (5th Cir. 2012) (plaintiff’s supervisor not a valid comparator); Amezquita v. Beneficial Texas, Inc., 264 F. App’x 379, 386 (5th Cir. 2008).
Also, the court stated that Rodriguez and Bermudez were not similarly situated because the disciplinary issues concerning the two employees were not of “comparable seriousness.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 261 (5th Cir. 2009). The complaint against Bermudez involved a single comment made by Bermudez outside of the workplace. Taking Rodriguez’s allegations as true, Rodriguez only offered evidence establishing the comment was vaguely “sexual” in nature. The court stated that the summary judgment evidence established the complaint against Rodriguez involved multiple complainants alleging a pattern of flagrant policy violations which the investigator ultimately determined to constitute a hostile work environment. The investigator recommended Rodriguez’s termination because of the legal liability his actions created for the City. Based on this record, the complaint against Rodriguez concerned conduct that was more serious than the conduct giving rise to the complaint against Bermudez.
Also, the court stated that Bermudez and Rodriguez were not similarly situated because they did not hold comparable positions. Rodriguez held the title of Director of Public Works and reported directly to the city administrator. Bermudez held the title of Wastewater Superintendent and reported directly to Rodriguez. Although, Bermudez supervised employees, his position was not a director-level position that answered directly to the city administrator. For these reasons, the record established that Rodriguez and Bermudez were not similarly situated.

Seabright Ins. Co. v. Lopez, 427 S.W.3d 442 (Tex. App. San Antonio 2014)

Worker’s Compensation Course & Scope of Employment- An employee was killed in a motor vehicle accident while traveling from employer-provided housing to his jobsite in a company truck. The trial court held that the employee suffered an injury occurring in the course and scope of his employment as a matter of law because it both originated in and furthered his employer’s business for purposes of Tex. Lab. Code Ann. § 401.011(12. The insurance company appealed.
The Texas Workers Compensation Act compensates employees who sustain a “compensable injury,” which means an injury that arises out of and in the course and scope of employment for which compensation is payable under subtitle A of the Workers’ Compensation Act. Tex. Lab. Code Ann. § 401.011(10) (2006). For an employee’s injury to be considered in the course and scope of employment, it must (1) relate to or originate in the employer’s business; and (2) occur in the furtherance of the employer’s business. Tex. Lab. Code Ann. § 401.011(12). These elements are applied liberally as the court liberally construes the provisions of the Workers’ Compensation Act to carry out the legislature’s evident purpose of compensating injured workers and their dependents. An injured employee must establish both elements to satisfy the course and scope requirement. An employee’s travel to and from work makes employment possible and thus furthers the employer’s business. However, travel to and from work does not ordinarily satisfy the first element of originating in or relating to the business of the employer as the risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers. There is no bright line rule for determining if employee travel originates in the employer’s business as each situation is dependent on the facts. No single fact is dispositive; rather, the court considers the nature of the employee’s job, the circumstances of the travel, and any other relevant facts. In sum, the court must determine whether the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer. The use of a company vehicle originates in the business of the employer only if the employee is required as a condition of employment to use the vehicle.
An employer’s provision of transportation is evidence that an employee’s trip originated in his employer’s business; however, it is insufficient in itself to establish origination. This is because only employer-provided transportation that amounts to a necessity from the employer’s perspective, and not just a gratuitous accommodation to the employee, is sufficient, without more, to prove that as a matter of law travel originated in the employer’s business. The mere gratuitous furnishing of transportation by the employer to the employee as an accommodation, and not as an integral part of the contract of employment, does not bring the employee, when injured in the course of traveling on the streets and highways, within the protection of the Texas Workmen’s Compensation Act.
The court of appeals affirmed the trial court and held that the employee was killed in the motor vehicle accident while traveling from employer-provided housing to his jobsite in a company truck thereby suffering an injury in the course and scope of his employment as a matter of law because it both originated in and furthered his employer’s business for purposes.

July 10th, 2014 Comments Off

After Vance v Ball State-the Narrow Path to Vicarious Liability in Sexual Harassment Cases
By Danny Wash

Is there any hope left for victims of sexual harassment after Vance v Ball State University’s limitation of the vicarious liability standard for employers to those actions taken against victims by supervisors who have been empowered by the employer to take ultimate actions against the employee?

And the answer is: “maybe.” The path to vicarious liability of an employer has been narrowed but it may be found if you look for it carefully.

Recall that in the Faragher and Ellerth U. S. Supreme Court cases, it was held that if a supervisor exercises his/her power to bring about an ultimate employment action against an employee, which they are sexually harassing, then the employer is vicariously liable for the action. However, if the harasser is not a supervisor, but a co-employee, the employer is only liable if it knew, or should have known, of the harassment and failed to take prompt preventative action. In other words, a negligence standard of liability, as opposed to being strictly liable. In Vance v Ball State University, the Court significantly reduced the number of employees that could now be called supervisors. Many of the employees that were formerly thought to be a supervisor, because they directed the work of an employee, were defined out of the category of being a supervisor for vicarious liability purposes.

In the Vance case, the Supreme Court was asked to define what employees are supervisors for the purpose of vicarious liability. The Supreme Court’s specific holding was that “an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.” The Court elaborated by further stating that a tangible employment action would be an action to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

However, the Court in it’s attempt to respond to the legitimate concerns of the dissent in the case left a few “weapons” for the plaintiff to use when faced with the argument that “no one can fire or discipline anyone here except the president and vice-presidents.” In fact, the court specifically considered the situation when, in response to the Vance case, an employer begins to concentrate the power to terminate or discipline employees into only a very few high ranking employees.

The majority stated the following:

“…if an employer concentrates all decision making authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decision making power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Cf. Rhodes v. Illinois Dept. of Transp., 359 F.3d 498, 509 (CA7 2004)… (”Although they did not have the power to take formal employment actions vis-á-vis [the victim], [the harassers] necessarily must have had substantial input into those decisions, as they would have been the people most familiar with her work—certainly more familiar with it than the off-site Department Administrative Services Manager”). Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies. See Ellerth, 524 U.S., at 762, 118 S. Ct. 2257, 141 L. Ed. 2d 663.”

I call the employee who actually supervises the plaintiff on a practical or daily basis, but has no ability to take the ultimate employment decisions contemplated by the Vance case, a “de facto supervisor” and I call the supervisor contemplated by the Vance case, the “Vance supervisor.” This theory will require the plaintiff to develop the facts in detail in deposition in order to demonstrate the influential ability of the de facto supervisor to cause the Vance supervisor to take tangible employment actions. If enough evidence of the influential ability of the de facto supervisor can be proven, then the court, on summary judgment, would be authorized to hold that there is a triable fact issue as to whether the company has “effectively delegated the power to take tangible employment actions to the employees on whose recommendation it relies.” If this fact issue can be raised, then the de facto supervisor could become the Vance supervisor for the purposes of holding the company vicariously liable for the sexual harassment of the de facto supervisor.

Even if an employee cannot prove that the de facto supervisor is the Vance supervisor and prevail on a vicarious liability theory, the employee might still prevail on a negligence theory if the employee can prove that the employer knew or should have known of the harassment of the co-employee (or de facto supervisor). The Vance court also discussed this issue:

“Contrary to the dissent’s suggestions…, this approach will not leave employees unprotected against harassment by co-workers who possess the authority to inflict psychological injury by assigning unpleasant tasks or by altering the work environment in objectionable ways. In such cases, the victims will be able to prevail simply by showing that the employer was negligent in permitting this harassment to occur, and the jury should be instructed that the nature and degree of authority wielded by the harasser is an important factor to be considered in determining whether the employer was negligent. The nature and degree of authority possessed by harassing employees varies greatly…and as we explained above, the test proposed by petitioner and the United States is ill equipped to deal with the variety of situations that will inevitably arise. This variety presents no problem for the negligence standard, which is thought to provide adequate protection for tort plaintiffs in many other situations. There is no reason why this standard, if accompanied by proper instructions, cannot provide the same service in the context at issue here.”

May 26th, 2014 Comments Off

By Danny Wash

Complying With ‘Reasonable Accommodation’ Requests
Date: April 15, 2014

By Myra Creighton This article by Myra Creighton was first featured in Risk Management magazine.

Employers must understand their accommodation obligations. Denying an accommodation request because the employee is not disabled is a risky proposition.

Under the Americans with Disabilities Act (ADA), disability is still defined as “an impairment that substantially limits a major life activity,” but the meaning of those words is considerably different now. Major life activities now include major bodily functions and the term “substantially limits” is undefined. Further, the term “disability” is to be broadly interpreted, and the positive effects of mitigating measures such as medication, physical therapy, etc., cannot be considered in the disability analysis.

A “reasonable accommodation” is a change in the work environment or in the way a job is customarily done, or in the pre-employment process that gives a disabled individual equal employment opportunities. Employers must accommodate a disabled employee when the employee or his representative (e.g., a physician) tells the employer that he needs an adjustment or change at work because of his impairment.

Individuals do not have to mention the ADA or use the phrase “reasonable accommodation.” They simply must connect the requested change to their impairments. An employer has to initiate the interactive process only if it:

Knows the employee is disabled;
Knows or has reason to know the employee’s disability is causing the employee’s work problems; and
Knows or has reason to know that the employee’s disability prevents him from requesting accommodation.
After an employee requests an accommodation, the employer must engage in an “interactive process” to determine what the disabled individual needs and the appropriate accommodation. There are four steps in the interactive process.

1. Identify the job’s essential functions.

2. Consult with the employee and/or employee’s physician to determine the specific limitations at issue.

3. Consult with the employee and identify potential accommodations and assess each accommodation’s effectiveness.

4. Select the accommodation that best serves the need of the employer and the employee.

In order to determine how to accommodate an employee, essential functions of his job must be determined. A function is “essential” to a job if it is a major or an important part of the job, as opposed to being secondary or merely desirable. Consider the following when deciding whether functions are actually essential to a position.

Does the position exist primarily to perform that function?
What duties are included in the written job description?
If there is a collective bargaining agreement, what does it say about the duties of the job?
Can the function be assigned to other employees?
How often is the employee required to perform the function?
What are the consequences of failing or being unable to perform the function?
Common Forms Of Accommodation

Unpaid Leave

Employers must provide unpaid leave and hold an employee’s position during the leave unless doing so is an undue hardship. The employer may have an obligation to provide the employee leave under the FMLA, which grants eligible employees the leave regardless of whether it is an undue hardship. Indefinite leave, however, is not a reasonable accommodation because it does not enable the employee to return to his job.

An employer should not assume that a leave request without an estimated date of return or a leave request where the physician cannot immediately provide a fixed date of return is a request for indefinite leave. A leave is indefinite when the physician actually uses the word “indefinite” or indicates he does not know when the employee will be able to return. When an employee indicates that he does not know when he will be able to return to work, an employer should engage in the interactive process to determine whether the leave requested is indefinite. If the physician indicates the leave is indefinite, an employer may terminate the employee.

Modified Work Schedule

Accommodations relating to attendance or punctuality involve an intertwining of the notions of “essential function” and “reasonable accommodation.” The courts have identified three analyses used in cases dealing with requests for modified schedules:

1. whether a fixed schedule is an essential function of the job;

2. if it is, whether there is a reasonable accommodation; and

3. whether a modified schedule would enable the employee to perform the essential functions of the job.

Punctuality generally is an essential function of most positions because maintaining adequate manpower is critical to meeting construction needs. Modifying a start time in such a situation could significantly disrupt a job, which would be an undue hardship. Likewise, when a shift accommodation would cause other employees to have to do the disabled employee’s work or would mean a shift did not have a supervisor on duty for part of the shift or that coverage would be indefinite, courts likely will find undue hardship.

Reduced Work Schedule

Generally, an employer is obligated to allow an employee to work part-time as a reasonable accommodation when the part-time schedule is not indefinite. For example, if an employee returning to work after having exhausted his FMLA leave needs to work part-time for four weeks, then an employer must allow it unless doing so is an undue hardship. In a construction environment, however, a reduced schedule may be an undue hardship if the employer cannot get adequate coverage for the hours the employee cannot work.

Shift Changes

An employee may request a shift change as an accommodation. If the shift is not an essential function and a position is available on the requested shift, the accommodation may be required. The ability to work a specific shift, however, can be an essential function of a job. For example, a shift can be an essential function if the work must be done at a particular time.

Light Duty

An employer never has to create a new job to accommodate an employee. Therefore, it is not required to create light-duty jobs or to eliminate essential functions for disabled employees. To the extent that a construction company decides to “create” light duty for employees injured on the job (e.g., by eliminating a lifting function), they should impose a temporal restriction on the period of time the employee can be in a created light duty job (e.g., three months).

An employer also may restrict its “created” light duty program to employees injured on the job as long as it also creates light duty for employees whose work injuries resulted in disabilities. In such a program, an employer would not be required to create light duty for a disabled employee who did not sustain a work injury.

Finally, to the extent a company sets aside a pool of positions for employees who need light duty, it also should restrict these positions to work-injured employees and indicate in writing that the position is temporary. Otherwise, employees may claim the light duty position is a permanent position.

Published in Risk Management on April 2, 2014. Thanks to Fisher & Phillips Attorneys LLP who first published the above article.

April 17th, 2014 Comments Off

By Danny Wash

Ysleta Independent School District v. Franco, 417 S.W.3d 443 (Tex. 2013)
Texas Whistleblower Act- Franco was a principal at a public school. Fearing the presence of asbestos in the school, he contacted his immediate supervisor concerning this issue and others. Franco complained again to the superintendent and was subsequently suspended. He sued the school district under the Texas Whistleblower Act. The school district filed a plea to the jurisdiction. The trial courtdenied the school’s plea to the jurisdiction. The court of appeals affirmed holding that Franco produced sufficient evidence of his good faith belief that the superintendent and trustees were authorized to regulate under or enforce the Asbestos Act. The Supreme Court disagreed stating that the case raised a familiar issue: whether a report of alleged violations of law is jurisdictionally insufficient if made to someone charged only with internal compliance. TEX. GOV’T CODE § 554.001 et seq. The court stated that a few months before, in University of Texas Southwestern Medical Center v. Gentilello, they held that such reports cannot support an objective, good-faith belief that the reported-to official is an “appropriate law-enforcement authority” under the Act. 398 S.W.3d 680, 686 (Tex. 2013). Also, the Court pointed out that even more recently, in Canutillo Independent School District v. Farran, they held that complaints to a school board, superintendents, and internal auditor were not good-faith complaints where the officials had no authority to enforce the allegedly violated laws outside the institution itself. 409 S.W.3d 653, 655 (Tex. 2013). Therefore, the court reversed the court of appeals and granted the plea to the jurisdiction thereby dismissing the case. (Editor’s note: This and the other cases cited by the Supreme Court essentially means that a government employee reporting violations of law by the government entity either needs to be an employment law expert or consult with such an attorney in order to be protected by the Act. It’s unfortunate that a whistleblower law which allegedly encourages employees to report illegal activity is complicated to this extent.)

Phillips v. Continental Tire Americas, LLC, No. 13-2199 (7th Cir. 2014)
Worker’s Compensation Retaliation- Phillips worked at CTA as a trucker for 22 years, until, in 2010, he visited CTA’s onsite health services department to report that his fingers went numb at work and to initiate a workers’ compensation claim. CTA had a written substance abuse policy that required drug testing in certain situations, including initiation of workers’ compensation claim. Refusal to submit to testing was cause for immediate suspension pending termination. An injured employee could receive medical treatment in the health services department and return to work without being required to submit to a drug test if the employee did not seek to initiate a workers’ compensation claim and thesituation did not fall into one of the other categories for which drug testing was required. Phillips was advised that if he didn’t take the drug test, his employment would be terminated. He refused to take the drug test and was terminated for refusing to submit to drug testing upon his initiation of a workers’ compensation claim. Phillips did file a workers’ compensation claim and eventually received benefits. The district court entered summary judgment, rejecting his claim that his termination was retaliation for filing a workers’ compensation claim. The Seventh Circuit affirmed.

Spurling v. C&M Fine Pack, Inc., No. 13-1708 (7th Cir. 2014)
FMLA & ADA- In 2004 Spurling began working for C&M as a packer assigned to the night shift. In 2009, she began to experience decreased consciousness and alertness, for which she received several disciplinary warnings. Spurling received a Final Warning/Suspension in February 2010 after she left her work site to use the restroom and did not return for more than 20 minutes. After her suspension, Spurling met with her manager and supervisors and indicated that her sleep issues were caused by a prescribed medication; she produced a note to the same effect. Spurling continued to experience difficulty remaining conscious at work and received a Final Warning/Suspension, Spurling informed human resources that her performance issues might be related to a medical condition. Although her doctor indicated that she had a disability, C&M concluded that she did not and terminated her employment. The federal district court entered summary judgment in favor of C&M, rejecting claims of violation of the Americans with Disabilities Act and of the Family and Medical Leave Act. The Seventh Circuit reversed in part. Spurling established disputed issues of material facts as to whether C&M failed to properly engage in the interactive process required by the ADA, but did not provide sufficient notice to establish a claim under the FMLA.

Maverick Transportation, LLC v. U.S. Dept. of Labor, No. 12-3004 (8th Cir. 2014)
Surface Transportation Assistance Act- Maverick Transportation argued that the Department of Labor Administrative Review Board (ARB) erred in finding timely an employee complaint regarding retaliation for reporting a violation of the federal Surface Transportation Assistance Act. Maverick had petitioned for review of the ARB’s affirmance of an ALJ’s finding that Maverick was liable for taking retaliatory action against an employee in violation of the Surface Transportation Assistance Act (STAA), 49 U.S.C. 31105. The court applied deference in regards to the agency’s interpretation that the limitations period in the STAA began to run when the employee received notice of the employer’s adverse action; the court also agreed with the ARB that the ALJ’s finding that the employee received such notice within 180 days of filing his claim was supported by substantial evidence; and, therefore, the ARB’s determination that the employee timely filed his claim was not contrary to law. The court also concluded that all of the facts found by the ALJ, including those pertaining to the retaliation claim, were supported by substantial evidence. A retaliation claim based on a refusal to drive under the STAA is considered under a burden-shifting analysis. See 49 U.S.C. § 31105(a)(2)(b) (requiring STAA complaints to be determined under the standard set forth in 49 U.S.C. § 42121(b)(2)(B)). A complainant must first prove a prima facie case of retaliation by showing (1) the refusal to drive was protected under the STAA; (2) the employer knew of the protected conduct; (3) the employer took an adverse employment action against the complainant; and (4) the refusal to drive was a contributing factor in the employer’s decision to take the adverse action. Finally, the ALJ’s decision not to reduce the back pay award on the basis that the employee failed to mitigate damages by voluntarily leaving his position was not contrary to law and the court found no abuse of discretion in the ALJ’s award of compensatory damages for the employee’s emotional distress. Accordingly, the court denied the petition for review.

Gogos v. AMS-Mechanical Systems, Inc., No. 13-2571 (7th Cir. 2013)
ADA- Transitory & Minor Impairments- Gogos, a pipe welder for 45 years, had taken blood pressure medication for more than eight years. He began working for AMS in December 2012 as a welder and pipe-fitter. The next month, his blood pressure spiked and he experienced intermittent vision loss and a red eye. His supervisor agreed that he could leave to seek immediate medical treatment. As Gogos left work, he saw his general foreman and stated that he was going to the hospital because “my health is not very good lately.” The foreman immediately fired him. After pursuing a charge with the Equal Employment Opportunity Commission, Gogos sued. The district court dismissed his case, reasoning that Gogos’s medical conditions were “transitory” and “suspect.” However, the circuit court held that Gogos alleged sufficient facts plausibly showing that he is disabled. The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities …; (B) a record of such an impairment; or being regarded as having such an impairment … . 42 U.S.C. § 12102(1). Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is “transitory and minor” (defined as lasting six months or less). Likewise, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 42 U.S.C. § 12102(4)(D). The court held that under the 2008 amendments, the fact that the periods during which an episodic impairment is active and substantially limits a major life activity may be brief or occur infrequently is no longer relevant to determining whether the impairment substantially limits a major life activity. 29 C.F.R. Pt. 1630, App. at Section 1630.2(j)(1)(vii). Instead, the relevant issue is whether, despite their short duration in this case, Gogos’ higher than usual blood pressure and vision loss substantially impaired a major life activity when they occurred. The court also held that Gogos’ alleged chronic blood pressure condition, for which he has taken medication for more than eight years, could also qualify as a disability. The amended ADA provides that when determining whether an impairment substantially limits a major life activity, the ameliorative effects of mitigating measures such as medication are not relevant. The Seventh Circuit vacated, reasoning that Gogos stated a claim under the Americans with Disabilities Act, 42 U.S.C. 12112.

Gaines v. K-Five Construction Corporation, No. 12-2249 (7th Cir. 2014)
Surface Transportation Assistance Act-Title VII- Gaines questioned the roadworthiness of two different trucks that his employer of five years (K-Five) assigned him. Management took steps to address his concerns, but the trucks never reached the level of safety sought by Gaines. On his last Friday with the company, he informally discussed an alleged steering problem with a K-Five mechanic. He later misreported what the mechanic said. Gaines claims that he honestly believed he was accurately relaying the information but that he botched the details. Citing the false report and instances of alleged insubordination, K-Five fired Gaines. Gaines claimed that he was fired due to his national origin or because he complained about safety issues and that he was owed unpaid overtime. The district court entered summary judgment in favor of K-Five. The circuit court examined the Title VII claim and first held that Gaines had waived any argument under the direct method of proof and was left with the indirect method requiring similar comparator employees who were treated different than Gaines. The circuit court rejected his comparator evidence. The court turned to his Surface Transportation Assistance Act (STAA) claim. The court first ruled that it had jurisdiction of the STAA claim because Gaines filed a timely complaint with the Occupational Safety and Health Administration and since no final decision was issued within 210 days, he was allowed to file his complaint with the district court for de novo review (see 49 U.S.C. § 31105(c)). Under the STAA, an employee engages in protected activity when he refuses to operate a vehicle because he fears that operating the vehicle will cause harm to him or the public. As the statute indicates, an employee is only protected for refusing to drive a vehicle if he first asked his employer to correct the hazardous safety condition, but the safety hazard remained uncured. The court held that whether Gaines could reasonably believe that the remaining asphalt posed a safety risk was a genuine issue of material fact precluding summary judgment on the claim.

March 17th, 2014 Comments Off

By Danny Wash

The EEOC has published a new fact sheet providing basic information about how federal employment discrimination law applies to religious dress and grooming practices. A full-length question-and-answer guide is available here.
In most instances, employers covered by Title VII of the Civil Rights Act of 1964 must make exceptions to their usual rules or preferences to permit applicants and employees to follow religious dress and grooming practices. Examples of religious dress and grooming practices may include: wearing religious clothing or articles (e.g., a Christian cross, a Muslim hijab (headscarf), a Sikh turban, a Sikh kirpan (symbolic miniature sword)); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of wearing modest clothing, and of not wearing pants or short skirts); or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
Title VII prohibits disparate treatment based on religious belief or practice, or lack thereof. With the exception of employers that are religious organizations as defined under Title VII, an employer must not exclude someone from a job based on discriminatory religious preferences, whether its own or those of customers, clients, or co-workers. Title VII also prohibits discrimination against people because they have no religious beliefs. Customer preference is not a defense to a claim of discrimination.
Title VII also prohibits workplace or job segregation based on religion (including religious garb and grooming practices), such as assigning an employee to a non-customer contact position because of actual or assumed customer preference.
Title VII requires an employer, once on notice that a religious accommodation is needed for sincerely held religious beliefs or practices, to make an exception to dress and grooming requirements or preferences, unless it would pose an undue hardship.
Requiring an employee’s religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee’s religious beliefs.
An employer may bar an employee’s religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.
When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
Neither co-worker disgruntlement nor customer preference constitutes undue hardship.
It is advisable in all instances for employers to make a case-by-case determination of any requested religious exceptions, and to train managers accordingly.
Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.
Title VII prohibits workplace harassment based on religion, which may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment, or for example, when an employee is subjected to unwelcome remarks or conduct based on religion.

March 17th, 2014 Comments Off

What Can a Potential Employer Ask You About Your Medical or Physical Conditions in the Interview?
By Danny Wash

What can an interviewing potential employer ask about your disabilities, impairments or medical issues in the first job interview:

•Employer can’t: Your potential employer can’t ask any questions about any medical issues or require a physical examination before making a job offer. Prohibited questions would be things like, “Will you need any accommodations to perform this job?” “Do you have any medical conditions that would limit your ability to perform this job?” “How long will it take for your broken arm to heal?” or “What medications are you currently taking?”

•Employer can: The potential employer may ask if you are able to perform the job before they make a job offer. For instance, questions like, “Are you able to perform all the duties of this job with or without accommodations?” “How would you perform this job task?” “Can you meet our attendance requirements?” “How many Mondays did you miss work other than holidays and scheduled vacations?” or “Do you currently use any illegal drugs?” If you come to the interview with a broken leg, it’s not unusual for the interviewer to ask what happened, but they can’t get into details about what treatment you had, how extensive the break is or how long it will take to fully heal.

•Conditional offer: If you get a job offer, it may well have conditions, like passing a drug test or a physical agility test. At that point, the employer can ask if you need any accommodations for a disability. Once you get the job offer, that’s the time to disclose if you need any reasonable accommodations. If you need, for instance, a CCTV to help you see your computer screen better, that’s something to disclose before you start working. If the employer doesn’t want to provide the accommodation, they’ll have to show an undue hardship. Make sure you’ve passed any tests and received an unconditional offer before you give notice at any existing job. You don’t want to give notice only to find out the offer was withdrawn.

•Reference checks: The employer can’t ask anything from your references that it can’t ask you. Questions about whether you needed accommodations, took Family and Medical Leave or needed time off for medical conditions are not allowed. How will you know if they ask? You probably won’t. That’s a major problem with the law, but if you have a good relationship with your former employer, they may tell you. If you get a call saying, “Wow, they asked me lots of questions about your medical condition,” then that’s a red flag that something illegal happened.

If the employer finds out about your disability either at the interview stage or after you’ve been hired and then withdraws the offer or suddenly fires you, then you may well have a disability discrimination case. If you think you were a victim of disability discrimination, I suggest contacting an employment lawyer in your state to learn more about your rights.

Thanks to Attorney Donna Ballman for the above information which you can read more about here

February 12th, 2014 Comments Off

Many Whistleblower Claims May Only Be Enforced Through OSHA
By Danny Wash

There are many whistleblower protection statutes at the federal level that are enforced only by OSHA (Occupation Safety & Health Administration) through the Department of Labor. The OSHA website gives you information on how to file with them in order to receive assistance in bringing a whistleblower claim. There are many federal statutes that do not permit you to file a lawsuit on your own to be protected from or compensated for being retaliated against for exposing your employer’s wrongdoing. You should go to this website and determine if your whistleblower claim is covered by OSHA or you can contact a lawyer to advise you whether the claim can be brought by you or has to be brought by OSHA.

January 6th, 2014 Comments Off

Medical Doctor Employees Provided Special Provision Not Granted to Other Employees
By Danny Wash

Texas doctors were given a “perk” that the rest of Texas employees were not provided by the Texas Legislature in section 15.50 Texas Business & Commerce Code. The section modifies the regulation of covenants not to compete, which typically are contracts providing that an employee cannot compete with his employer when the employee leaves employment. The amended regulation gave doctors a “plum” by providing that any agreements limiting their practice must provide for a buy out of the covenant by the doctor, so that the doctor could free himself from it for a reasonable price if he so chose to do so. The law also made it mandatory to include this provision and the 14th Court of Appeals in Texas recently ruled in Laskiplus of Texas, Inc. v. Mattioli, M.D.;that the failure to have the provision invalidates the entire agreement. Obviously, the medical association had a better lobby with the Legislature than the rest of us common folk. But, don’t they always, as evidenced by their own malpractice law that grants them special protections in lawsuits when they are accused of medical malpractice.

December 2nd, 2013 Comments Off