Texas Workers Rights Blog

In February 2012, a Houston federal judge made national news when he dismissed the case of Donnicia Venters.   Venters was a new mother attempting to return to work after maternity leave.  She advised her employer that she was still lactating, and asked if she could use a back room at work to pump her breasts.    After making this request, her supervisor allegedly took a long pause and told her that her position had already been filled.   Venters filed a sex (gender) discrimination complaint, and the employer responded by alleging that Venters had abandoned her job.  A lawsuit was later brought by the Equal Employment Opportunity Commission on behalf of Venters. The judge on Venters case, a 71 year old male, later dismissed her discrimination claim stating that lactation was not a pregnancy-related medical condition, and therefore not sex discrimination even if her allegations were true.   A collective gasp of astonishment by women and employment lawyers  Read More →

In his “Letter from a Birmingham Jail”, Martin Luther King Jr. wrote that “whatever affects one directly, affects all indirectly.”   Such is true with employment discrimination.  We often think that discrimination affects only the victim, but we often forget that society as a whole is ultimately affected. Case in point, I recently participated in an arbitration where I represented a former upper management official employed with a healthcare provider.    My client was unexpectedly terminated despite a good employment history and no prior discipline.  She did, however, have to endure a male supervisor who was intimidating, disrespectful and condescending to her and other female employees.   He also made several negative gender based comments.  In addition to terminating my client, another female was forced to resign under his threat of termination, and a third resigned due to hostile working conditions created by him. All three female employees voiced complaints about this supervisor’s unprofessional behavior.   Human resources was  Read More →

Every so often someone writes a letter to the newspaper complaining about the amount of Spanish spoken in El Paso, and specifically in the workplace.    This debate was recently resurrected in our editorial pages. The letters are pretty predictable.   The complainer usually proclaims that “This is America” or “I’d learn Spanish if I lived in Mexico.”  Responses range from moderates who remind us that we live in a diverse, multi-linguistic culture, to extremists who claim racism and end their letters with some quasi-historical reference that “this area once belonged to Mexico!”   Most of us chuckle at these exchanges while having our morning coffee.  At least they provide an entertaining diversion from the public corruption stories. Language is a sensitive subject, as it is often tied to our nationality, race or culture.   Language is an equally sensitive topic in the workplace, where issues vary from “English-only” policies, to circumstances where workers feel resentment about immigrants or  Read More →

The Fifth Circuit Court of Appeals recently issued an opinion reminding us how difficult it was for workers to bring disability claims before the passage of the ADAAA (the Americans with Disability Act Amendment Act) of 2008. In Tina Milton v. Texas Department of Criminal Justice, Ms. Milton alleged disability discrimination and violations of the Family and Medical Leave Act (FMLA).   Milton suffered from allergies, asthma and severe sensitivity to perfumed and scented products.   Evidently her employer allowed plug-ins and candles to be used in the workplace.   These scents aggravated Milton’s respiratory problems, causing coughing, chest tightness, nausea and other symptoms.    Milton made a simple accommodation request – “No plug in or candles. Strong [orders].”         Management rejected the request.    Milton later took FMLA leave and was subsequently terminated for allegedly failing to provide required FMLA documentation to her employer while on medical leave. In this pre-ADAAA case (Milton was terminated in April 2007 and the  Read More →

El Paso City Council recently proposed an ordinance aimed at limiting the type of documents subject to disclosure under open records requests.   This was appropriately met with strong criticisms, and as a result the proposal was later withdrawn. The Texas Public Information Act (PIA) gives the public the right to request and receive many types of government records.   Texas law presumes that public documents are subject to disclosure unless a specific legal exception applies.   While a valuable tool for all members of the public, this law can also be a great potential source of information for workers. Many El Pasoans work for governmental employers, including state agencies, the city and county, as well as our local school districts.   Often times, employers provide little or no information regarding non-selections, demotions, contract non-renewals, lay-offs or terminations.     A PIA request can often help shed light on these employment decisions. For example in a non-promotion, an employee can request  Read More →

In December, the Fifth Circuit Court of Appeals upheld a summary judgment for an employer who was alleged to have violated the Stored Communications Act (SCA). In Fannie Garcia v. City of Laredo, et al, the Plaintiff alleged that her former employer, the City of Laredo, and various other public officials, violated the SCA by using evidence stored in her personal cell phone as a basis for her termination. The Fifth Circuit’s opinion is strangely silent on some of the background facts, so I decided to view the original complaint.  According to Garcia’s federal complaint, the wife of a police officer took her husband’s key to the police substation without his consent.  She entered the substation, went into the locker room, and rummaged through her husband’s locker.  There she found a cell phone, allegedly loaned to the husband by Garcia.   On this cell phone the wife discovered text messages, photographs and videos.    She then took the  Read More →

It’s that time of the year when people make their new year’s resolutions.   For many, this includes goals to quit smoking, lose weight, or exercise more.    Increasingly, however, employers are making employment decisions based on workers’ personal lifestyle choices.   Are these employers going too far? In the past, one’s personal life was considered separate from his or her work life, as long as job performance was not affected.  Such is not the case anymore.   Employers are increasingly enacting policies that restrict employees’ off work activities and even their weight.   Case in point, in 2010 an El Paso hospital announced it would not hire applicants who smoked or used tobacco products.   While we can all agree that smoking is bad for one’s health, this employer is banning potentially qualified applicants for off-duty behavior that is legal. Smokers are not a protected class under federal anti-discrimination laws, and while many states have smoker protection laws, Texas is  Read More →

The end of the year means holidays and special time with family, but unfortunately it can also means layoffs and terminations.   The shock of losing one’s job during the holidays can create unexpected stress and panic, but workers need to be aware of their rights when deciding whether to accept a severance agreement. A severance agreement is a contract between a worker and an employer, whereby the employer agrees to provide some type of benefit (usually payment of money), in exchange for the worker signing a release agreeing not to bring any legal claims.   An employer is not legally required to offer a severance, but doing so can be a mutual benefit to both sides if done properly. In 1990, the Age Discrimination in Employment Act (ADEA) was amended by adding the Older Worker Benefit Protection Act (OWBPA).   Under the OWBPA, minimum requirements were set out for severance agreements involving workers age 40 and above.    Read More →

Texas State Senator Jose Rodriguez (El Paso-D) recently filed S.B. 121, which if passed, would amend Chapter 554 of the Texas Government Code, also known as the Texas Whistleblower’s Act.    As many in El Paso are aware, the disgraced former superintendent of the El Paso Independent School District, and several unnamed co-conspirators within the district, were engaged in unlawful and/or unethical activities and directives.     This disgraced former superintendent has since pled guilty to federal charges.  As I addressed in my August 6, 2012 blog entry, “EPISD Fiasco Linked to Weak Employment Laws,” many of the district employees who could have exposed this illegal conduct early on, were placed in difficult positions of either committing wrongful acts or face retaliation with little or no legal recourse available. Two significant hurdles facing workers seeking whistleblower protections are addressed in Sen. Rodriguez’s bill.    Under the current whistleblower law, a worker must report unlawful activity to a law enforcement  Read More →

A longtime friend has been battling cancer for the second time in recent years.   Although the experience has been physically, emotionally and spiritually challenging for her and her family, she has remained positive and grateful for the many precious gifts in her life.    She is truly an inspiration.  During this ordeal, her employer has accommodated her absences, and has allowed her to continue working from home.  It has been a mutual benefit, as the employer has retained an experienced and loyal employee, and my friend has kept her salary and benefits, not to mention the self-respect and dignity that accompanies her dedicated work. Unfortunately, some employers have little patience or understanding for injured, ill or disabled workers.  Federal and Texas law provides some protections, but it far from complete. The Family and Medical Leave Act (FMLA), allows “eligible” employees up to twelve weeks of protected medical leave per year due to a serious health condition.     Read More →