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Texas Employee Rights

COMPLYING WITH REASONABLE ACCOMMODATION REQUESTS
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 No Comments »


RECENT EMPLOYMENT LAW CASES
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


EEOC PUBLISHES GUIDANCE ON RELIGIOUS DRESS & GROOMING ACCOMMODATION BY EMPLOYERS
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


Recent Developments in Overtime Exemption Law-Fluctuating Workweek and Home Care Workers
By Danny Wash

Two areas have been in the news relating to overtime pay for employees.

The first area deals with the “fluctuating workweek”. The Fair Labor Standards Act (FLSA) requires that employees that are not qualified as exempt (usually called “non-exempt employees”) from overtime receive one & one-half times their regular rate of pay for any hours worked in excess of 40 in a workweek. This general rule applies to hourly employees and to salaried, non-exempt employees, such as clerical or certain administrative employees. The area of exempt vs. non-exempt is fairly complicated and information about these classification can be found by clicking on this link. If an employer makes a mistake in classifying an employee as exempt and does not pay overtime, the employer would owe the employee back pay at a rate of 150 percent of the employee’s regular rate for the overtime hours worked.

The fluctuating workweek exception (FWE) may apply to salaried, non-exempt employees but not to hourly employees. The key to whether or not the FWE may be utilized is the actual agreement between the employee and employer. The bottom line is whether or not there was an agreement made between the employer/employee before the method was utilized. The agreement does not have to be written and can be proven by statements or actions of the parties. The importance of the FWE is that if there is an agreement that the salary paid is intended to cover all hours worked by the employee during the workweek, then any hours worked over 40 in the week will be compensated as overtime by payment of an additional 50% of the weekly rate (instead of 150%) for each overtime hour worked (calculated by dividing the number of hours actually worked in the subject week by the salary amount for the week). An example would be if the weekly salary was $1,000 and the employee worked 50 hours during the week, the overtime would amount to $100 ($1000/50 hrs.= $20/hr; 50% of $20= $10/hr overtime rate; $10 x 10 hrs= $100 overtime pay). Here and here are postings by a law firm blog discussing in more detail and criticism of certain court rulings concerning the FWE.

The second important overtime area is one that will not be effective until January 1, 2015. This area involves home care employees. At present, home care companies can compensate their home care employees utilizing the “companionship” exemption to paying overtime and pay them on a salary basis. The exemption is generally applicable to any employee who provides services for the care, fellowship, and protection of persons who, because of advanced age or infirmity, cannot care for themselves. The exemption covers employees engaged in a wide variety of care jobs of the home bound persons. Under the new rule, the exemption will change and will only apply to individuals employed directlyby the household. Those workers who continue to work through an agency will become hourly workers subject to the duty to pay them overtime for each hour worked over 40 hours during a workweek.

October 28th, 2013 Comments Off


HIPAA Does Not Provide an Employee a Right to Sue for Violations
By Danny Wash

The Health Insurance Portability and Accountability Act (HIPAA) does not contain any express language conferring rights to sue upon a person or employee if the privacy regulations are violated. The Fifth Circuit in Acara v. Banks, 470 F.3d 569 (5th Cir., 2006) held that HIPAA does not provide a private cause of action to an individual for privacy violations but that Congress left the enforcement of the law to the Secretary of Health and Human Services. Therefore, an individual or employee who believes their privacy rights under HIPAA have been violated would need to file a complaint with said agency. Here is where you may find information on filing a complaint.

An individual may still have a common law suit for invasion of privacy for the unauthorized revelation of medical information; however, this would be separate and not involve any HIPAA protections or violations.

September 18th, 2013 Comments Off


Right to Work vs. Employment at Will
By Danny Wash

Many people confuse the term “right to work” with “employment at will”. I hear a lot of people say that Texas is a “right to work” state and what they mean to say is that Texas is a state in which you can be fired at will. The term “right to work” state actually means that a person has the right to work at a company that has a union without having to be a member of the union. Without a the right to work law, a so-called “union shop” company could refuse to hire or be forced to hire only union employees. The right to work law does not prevent a company from having a union or union employees, it just simply means that a non-union person can still work at the company, if the company wants to otherwise hire that person.
The term “employment at will” means that an employee can be fired for any or no reason (just like an employee can quit for any or no reason), as long as the real reason does not involve a violation of a state or federal law. For example, a company can terminate an employee because of your personality, because the boss had a bad morning, maybe a fight with his wife or someone cut him off in traffic, it doesn’t have to be a reasonable reason or a fair reason. But, if a boss needed to fire several employees because of a business downturn, and part of the reason he let one or more of the employees go was their gender, race, and/or their age, this violates specific laws that make it illegal to discriminate based on age, race, or gender. Another example would be if a male owner or supervisor decides to let a female go because she refused his sexual advances, this violates a specific law regarding sexual harassment.
We all know that no one does anything for no reason. So, if you are fired with no reason being given and the company refuses to give you a reason, you will need to try to find out the reason should you want to bring a suit for wrongful discharge. Normally, an easy way to do this is to file for unemployment. If the employer opposes your unemployment, they will have to come forward with a reason in order to prevent you from getting unemployment and then you will find out. However, if an employer has fired you for an illegal reason they will normally come forward with a pretextual reason. Should you sue them for wrongful discharge, it would then be your burden to come forward with evidence to show that the reason was a pretext for illegal discrimination or to show that the pretextual reason is not believable for whatever reason.

August 8th, 2013 Comments Off


The Dog Ate My Medical Certification
By Danny Wash

The Family Medical Leave Act (FMLA) is a great benefit for employees who are eligible and comply with the rules of the law. However, some people have the erroneous impression that they can’t be fired when they are under “doctors care”. This is absolutely wrong and believing this urban legend can get you fired. While the FMLA helps an employee out with some beneficial rules, it has a rule called “medical certification” that if ignored by the employee will cause you to lose your FMLA protection for your leave. Even if the doctor and you notify the employer that you are off with an illness that you and he believe are covered by the FMLA, if the employer sends the doctor a “medical certification” allowed by 25 CFR 825.313 (b), the doctor still must comply with the request. The doctor must fill out the medical certification and return it to the employer within 15 days. Now, here is the big catch- It is your duty as the employee to see that the medical certification is filled out properly and returned timely! Even if it is the doctor’s fault, the mailman’s fault, or the dog ate your medical certification; it is still your fault that it did not get back to the employer on time and you lose your FMLA leave protection thereby letting the employer off the hook and free them up to fire you (there is an exception is it was not “practicable due to extenuating circumstances” to return it within 15 days but this is living dangerously to depend on this exception). So, be persistent and forceful with the doctor and his staff to get the certification done and then you make sure its either timely mailed or you deliver it yourself (or someone on your behalf). I know this doesn’t seem fair but sometimes life isn’t fair and we have to accept it and follow the rules.

July 23rd, 2013 Comments Off