The Firm is excited to announce that founding member and managing partner Austin Kaplan recently began service as the 2017-2018 Austin Young Lawyers Association (AYLA) President. Read the Austin Lawyer magazine interview here: Austin Lawyer July 7, 2017.
Bar owners in Austin, Texas have recently come under scrutiny for making allegedly hostile, racist, sexist comments. You may be wondering, can employers use racism and sexism as they please, or do employees have rights in such situations?
Allowing racist and misogynistic behaviors to enter into the workplace can quickly become a violation of employees’ state and federal rights. For example, if an owner or supervisor offers an employee job advances in exchange for sexual favors, that action may violate state and federal laws such as Title VII of the Civil Rights Act and/or Chapter 21 of the Texas Labor Code, both of which prohibit workplace sexual harassment. Sexual advances and groping in the workplace may violate the same laws. Likewise, if an employer makes racist or derogatory statements, or takes action on the basis of an employee’s race, that too may translate into a violation of the employees right to be free from racial discrimination and/or national origin discrimination.
And, when it comes to bars and restaurants in particular, employees may want to be especially vigilant about their pay. Federal wage laws may be violated whenever a prohibited individual (e.g., a chef, back-of-the-house expo, dishwasher, manager) takes part in a tip pool. Also, employers generally should pay tipped employees at least the federally required wage of $2.13 per hour, plus overtime for all hours worked over 40 in a workweek. Things like tip shaving or time shaving are generally prohibited, and penalties can be severe. Nonetheless, local practitioners believe such violations are rampant in the industry. Failure to follow these rules may result in a violation of the state and federal rights of bartenders, barbacks, bouncers, waiters, servers, hostesses, and other bar/restaurant staff.
IBM recently announced a new policy that reverses decades of practice: no more telecommuters. Telecommuters, also called remote employees, are employees that do their job from home or any other remote location. Companies like IBM instituted these policies in the 1990’s and 2000’s. Work-from-home policies like these were considered a win-win: companies save money on office overhead, while employees gain flexibility, spend more time with their families, reduce or eliminate commute times, and perhaps even improve work efficiency by cutting down on office interruptions.
IBM’s surprise change in course will affect roughly 40% of its workforce. IBM’s telecommuters are required to come into a regional work hub, find a new role within the company, or quit. This ultimatum came with a 30-day deadline for relocation, and 90 days to find a new role within the company, and the deadline for relocating expires almost immediately.
For many, IBM’s telecommuting option was a chance to work from home in less expensive locations. Now IBM is forcing its remote-workforce to “co-locate” to one of six offices in the following cities: Atlanta, Raleigh, Austin, Boston, San Francisco, or New York.
It remains unclear how many Texans will be affected by this policy, but one thing is clear. According to this new policy, if you are an IBM employee in Texas, and your team is located in Austin, you must report to Austin. However, if you are an IBM employee in Texas, and your team is located in San Francisco, you are apparently required to report to the San Francisco office.
So, if I am an IBM’er or similar tech employee, am I required to report to the office if my company changes policy? What if I am a project manager, senior software engineer, software engineer, IT specialist, senior systems engineer, computer programmer, managing consultant, or application developer?
The answer is: it depends. The bad news is that employers have a lot of discretion regarding work location. Most Texas tech employees are at will, meaning companies can change their job requirements or even location for good reason, bad reason, or no reason at all, as long as the company does not change these things for an illegal reason. Illegal reasons are those reason prohibited by state and federal law.
The good news is that federal law provides some protection. The federal American with Disabilities Act, as Amended (ADAAA) requires employers to provide reasonable accommodations to certain workers with health impairments. In other words, qualified workers may have the right to work remotely as a reasonable accommodation. Federal regulations define a reasonable accommodation as modification or adjustments to the work environment that enable an individual with a disability who is qualified to perform the essential functions of their position.
The Equal Employment Opportunity Commission (EEOC) has stated: , “An employer should not . . . deny a request to work at home as a reasonable accommodation solely because a job involves some contact and coordination with other employees.” https://www.eeoc.gov/facts/telework.html
Some more good news is that once the employer carries the burden on telework accommodation requests. In EEOC v. Ford Motor Co., 752 F.3d 634, the Court clarified that it is generally the employer’s burden to prove that an employee with a disability’s physical presence in the workplace is required.
More good news that may surprise you is that the definition of disability under the federal law is not as strict as the term “disability” suggests. For instance, the employee in EEOC v. Ford Motor Co., was diagnosed with IBS (irritable bowel syndrome), a gastrointestinal disorder that qualifies as a disability under the ADA. The key takeaway is that if you have a bona fide medical reason to not work from the office, you may have protection here.
Employees may have protected rights that must be weighed against a surprise return to the office policy. Practically speaking, companies like IBM may be required to accommodate some members of their workforce by allowing them to remain where they are and continue to work remotely. Yet, determining what constitutes a reasonable accommodation requires balancing a myriad of factors. In other words, for each accommodation request, the employer must make an individualized assessment. No two situations are alike.
So, must you either “come into the office or quit?” The answer probably requires quick action and a detailed, fact-specific, legal analysis.
Kaplan Law Firm, PLLC and co-counsel Central Texas attorney Edmond Moreland recently settled a nationwide wage and hour collective action on behalf of 46 plaintiffs located across the country, including a plaintiff in Austin, TX. The total maximum settlement value was $219,500, with $88,000 in attorneys’ fees and expenses, and a maximum amount of $131,500 available to be claimed by plaintiffs and the settlement class.
“This settlement was the result of persistent and thoughtful negotiation. I am pleased that we reached an agreement right here in Texas that ensures that hard-working people, from Austin all the way to the East and West Coasts, will have the opportunity to receive just compensation for the hours they worked. It is an honor and a privilege to be able to do this work, and to seek out and secure justice for these workers,” Austin Kaplan said.
Kaplan Law Firm, PLLC is an employment and civil rights firm in Austin serving clients throughout Texas. Founder Austin Kaplan was recently selected as a Super Lawyer Rising Star by Thomson Reuters and is a finalist for the 2016 Austin Under 40 Awards in the legal category. An active member of the community, Kaplan is President-Elect of the Austin Young Lawyers Association and the Former Chairperson of the City of Austin’s Ethics Review Commission.
Learn more about the latest from Kaplan Law Firm here: http://kaplanlawatx.com/press/
Mr. Austin H. Kaplan with Kaplan Law Firm, PLLC has been elected to membership in the Fellows of the Texas Bar Foundation. Fellows of the Foundation are selected for their outstanding professional achievements and their demonstrated commitment to the improvement of the justice system throughout the state of Texas. Election is a mark of distinction and recognition of Mr. Kaplan’s contributions to the legal profession.
On June 26, 2015, the U.S. Supreme Court in Obergefell v. Hodges, 576 U.S. ___, No. 14-556 (June 26, 2015), held that the Equal Protection and Due Process Clauses of the Fourteenth Amendment require marriage for same-sex couples be afforded “on the same terms as accorded to couples of the opposite sex.” Id., slip op. at 27.
The opinion took effect immediately upon issuance.
Texas County Clerks began issuing marriage licenses shortly after the opinion was issued, on June 26, 2015.
The state of Texas, including all public employers, began providing benefits to married same-gender couples as of July 1, 2015.
If you are in a committed same-gender relationship, are otherwise qualified to be married, and have been denied the right to marry since June 26, 2015, your rights may have been violated.
If you are married to a spouse of the same-gender, and have requested but are being denied benefits that opposite-gender married couples receive, your rights may have been violated.
To quote a lawyer who normally defends businesses: “The Supreme Court decision is very broad. This issue is done. Make the changes and move on.”
Employee misclassification costs the state of Texas millions of dollars each year. Employers who knowingly misclassify employees are also likely committing payroll and tax fraud. If you are paid “under the table” by your employer, your employer has also likely violated multiple laws.
If you are considered an “Independent Contractor” or a “1099” but are subject to an employer’s control (i.e., your boss tells you how to do your job, when to show up, how much to charge, gives you tools, and disciplines you) or you are dependent on your employer for work, you may be a misclassified employee, and may have legal rights and significant claims to significant amounts of unpaid overtime. Examples of often misclassified workers include legal assistant, oil field workers, technology workers, and software programmers.
Additionally, lawsuits are pending across the country against Uber, Lyft, Instacart for misclassification. If you work for one of these companies, you should contact an employment law attorney today to find out your rights.
Texas Law provides relatively weak protections for workers who are misclassified. However, you still have rights. Private, civil lawsuits under federal law provide strong protection for workers who are misclassified, and are the primary method of holding employers who are breaking this law accountable. If you were misclassified and worked more than 40 hours in any workweek, you may have a claim for unpaid overtime. If you have been illegally classified as an independent contractor by your employer, it is important that you file a lawsuit immediately, for two reasons:
- Timelines for these lawsuits are short; and
- Wage and Hour / Overtime / Misclassification / Minimum Wage lawsuits are the only way to ensure a level playing field among businesses (to avoid giving an unfair advantage to business that illegally fail to pay employees overtime and other required wages), and to avoid worker exploitation.
Similarly, if you were classified as an independent contractor and paid overtime, but are now being paid on salary and are being asked to do the same tasks and work overtime without additional pay, you may be entitled to compensation for that overtime work.
If you are an independent contract but think you may actually be an employee or you are salaried and are no longer being paid overtime like you used to be, you may be entitled to compensation and your rights may have been violated.
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Non-compete agreements (sometimes called non-competition agreements or covenants not to compete, and often including non-solicitation of employees and non-solicitation of customers) are increasingly common across all levels of employees. Historically, these agreements were reserved for key employees with highly specialized know-how or training, or employees who had “the keys to the castle” for the employer (picture the handful of people who know the formula for Coke).
Recently, employers have greatly expanded their use of non-competes. Employers in Texas have made fire inspectors, hairdressers, and fitness professionals sign non-competes. Famously, the sandwich chain Jimmy Johns makes the employees who assemble the sandwiches sign non-competes.
Some examples of employees who are often bound by such agreements include:
- software developers
- supervisors and managers
- sales executives
- sales managers
- brand and content managers
There is a nationwide conversation taking place about the use of non-competes. As many commentators have recently discussed, companies gain great protection from these agreements, and there is little downside to making employees sign them.
For employees who have not yet signed a non-compete, they can seek out legal advice as to the potential affect of that document, and provided they have leverage, can negotiate its terms. This up-front negotiation can be very valuable to the employee in the long run.
Unfortunately, lawyers who represent individuals usually see a non-compete for the first time as the employee is on the way out of the company or gearing up to leave and compete, either with an existing competitor or by opening up their own competing business.
The key questions in that scenario are:
- Is the non-compete agreement enforceable?
- What does is prohibit me from doing?
- If I think I might violate it, what is my exposure, and given that exposure, how should I proceed?
Unpaid interns across the country are recovering significant settlements. The latest news of a settlement broke today. According to Reuters:
Viacom Inc agreed to pay $7.21 million to settle a class-action lawsuit by thousands of former interns who said the owner of Comedy Central, MTV and Nickelodeon did not pay them, despite their having done work similar to paid employees.
This settlement would cover roughly 12,500 interns, and is pending approval by the court. Although these claims are increasingly common elsewhere, they seem to be just getting started in Texas.
Folks who work or have worked as unpaid interns may be able to sue for back wages, liquidated damages of twice their back wages, unpaid overtime, and the attorneys’ fees incurred exercising their right to be paid a fair wage.
But, the law has strict deadlines, and every week that goes by could mean lost claims, so do not delay in determining whether your rights have been violated.