El Paso Nurses Test Retaliation Law: Do Legal Protections End At The State Line?

El Paso Nurses Test Retaliation Law:  Do Legal Protections End At The State Line? This week the Fifth Circuit Court of Appeals in New Orleans will hear a case from El Paso, Texas that will determine the reach of  Texas anti-retaliation laws that protect nurses who refuse to obey directives that jeopardize patient safety.  Specifically, do these legal protections extend to Texas nurses when the patient happens to be located across state lines? I am proud to represent two registered nurses: Gloria Almeida and Irma Quiñonez.     Almeida and Quiñonez worked for the same employer, Fresenius Medical Care, in El Paso for 24 and 20 years respectfully.   They are nephrology nurses, which mean they care for patients diagnosed with end stage renal (kidney) disease.   They provide care and compassion to both patients and their families in the most trying of circumstances. Almeida and Quiñonez had outstanding employment histories, having no disciplinary history and only excellent performance evaluations during their long careers.  Yet they quickly lost their jobs after refusing to  Read More →

Labor Day Observations from a Texas Employment Lawyer

Labor Day Observations from a Texas Employment Lawyer Labor Day is celebrated each year to honor American workers.  A nation can show no greater honor to its workers than to ensure respect through safe working conditions, fair pay and benefits, and a work environment free of discrimination.   That includes protections against pay disparity between the sexes, as well discrimination against older workers, pregnant employees and the disabled. As far as our nation has come in the last 100 years in extending worker protections, we continue to lack in many areas.   Here are a few Labor Day thoughts. Did you know. . . ….you can give up your right to bring a legal claim through the court system by accepting a job?  The answer is yes. A right to a jury trial is a constitutional right, yet many employers require workers to agree to arbitration agreements as a condition of employment.  That means if you refuse to sign it, you will be fired!  Some  Read More →

The Google “Diversity” Memo and Employment Law

The Google “Diversity” Memo and Employment Law On a recent flight, Google engineer James Damore decided to draft a memorandum in which he rambled on about, in his opinion, Google’s misdirected attempt to achieve racial and gender diversity in the workplace.   There is no evidence Damore was denied a job or promotion due to favorable treatment towards a minority or female candidate.  Damore just wanted to vent about his employer’s policy on diversity.  The more controversial parts of the document include Damore’s opinion that the lack of equal representation of women in the tech industry, as well as in positions of leadership, did not stem from discrimination but rather due to biological differences between men and women.  According to the Damore, women genetically possessed greater neuroticism (higher anxiety, lower stress tolerance) than men.   I believe this “biological differences” argument was used in the past to justify discrimination against African-Americans, but I digress. Damore decided to share his memorandum internally with co-workers.  The  Read More →

Questioning Religious Beliefs Costs Employer

Questioning Religious Beliefs Costs Employer When St. Vincent Health Center, a Catholic based hospital system, implemented a mandatory flu vaccination policy for its employees, it carved out an exemption for workers who objected based on either medical or religious reasons.   If the exemption was approved, employees could continue working if they wore masks while in contact with patients during flu season.  If the exemption was denied and the worker still refused the vaccination, the employee would be terminated.  Fourteen employees requested and received medical exemptions.  The hospital, however, denied all accommodation requests by employees requesting religious exemptions, resulting in the discharge of six workers.   After a religious discrimination suit was brought on behalf of these employees by the EEOC, the employer settled by paying $300,000 in damages, and offering reinstatement to the affected employees. Both federal and state discrimination laws prohibit discrimination based on religious beliefs.   This includes denying a reasonable accommodation request based on an employee’s “sincerely held religious  Read More →

If You See Something, Say Something

If You See Something, Say Something This is more than just the slogan used by the U.S. Department of Homeland Security to encourage people to report suspicious terrorist activity.   It should also be the mantra of every workplace to encourage the reporting of discrimination and sexual harassment.   Simply stated, without witnesses who are willing to get involved and “say something,” discrimination and sexual harassment cannot be investigated and addressed, allowing it to spread throughout the workforce like a cancer.     A recent high profile lawsuit shows how witnesses were not only able to corroborate some of the plaintiff’s claims and stop an orchestrated attack on the plaintiff’s character by her former employer, but also contribute to the exit of a very powerful person who had a long history of sexual harassment. The former Fox New co-anchor, Gretchen Carlson, filed suit against Fox News CEO Rogers Ailes on July 6, 2016.    The lawsuit alleged Ailes made sexual advances against Carlson, and then  Read More →


KNOW YOUR FMLA RIGHTS! All of us feel the tension between work and family life.    At some point, you or a family member will face a serious health condition, or perhaps a pregnancy.    Will your job be protected if you need to take time off for a medical reason or maternity leave? In 1993, Congress enacted into law the Family and Medical Leave Act.   For every American worker who qualifies, you are legally entitled to take up to 12 weeks of unpaid leave in a twelve month period; maintenance of health benefits during the leave period; and the right to be reinstated to the same or equivalent position after taking this leave.   FMLA leave can be for the birth of a child and that child’s care (maternity leave); for your own serious health condition; or to care for a child, spouse or parent who has a serious health condition. There are, however, a few other tidbits you should be  Read More →

Staffing Agencies Can Be Responsible for Client’s Discrimination

Staffing Agencies Can Be Responsible for Client’s Discrimination According to the American Staffing Association, U.S. staffing companies employed an average of 3.32 million temporary and contract workers per week in the third quarter of 2015.    That means that many American workers have “joint employers” consisting of a staffing or employment agency, and the agency’s client – the actual company where the employee is physically working.   This relationship can be a little cloudy for both the worker and the employers when complaints of discrimination arise.   Who is the employer?   Who is liable for discrimination in the workplace?   As we see in the recent case of Burton v. Freescale Semiconductor,  both the staffing agency and their client may be liable. Nicole Burton was employed by Manpower, a staffing agency, who placed her at Freescale, a microchip manufacturer.   During her employment she inhaled chemical fumes, eventually seeking medical attention.   After her condition did not improve, she made a workers compensation claim.   Shortly thereafter, Freescale decided to  Read More →

Breast Pumping, Dirty Toilets and Politics

Breast Pumping, Dirty Toilets and Politics Texas, which continues to lag behind most other states in workers’ rights, enacted a new law effective September 1, 2015, which provides some working moms with protections in the workplace to pump their breast milk.    Texas H.B. 786 requires all public employers (e.g., state agencies, cities, counties, and school districts) to provide a place, other than a multiple user bathroom, that is shielded from view and free from intrusion from other employees and the public, where the employee can express breast milk.   The new law, however, does not apply to a majority of working moms who are employed in the private sector. It is interesting to note that the original draft of the bill excluded the use of any bathroom as a designated breast pumping place, but an amendment brought by Van Taylor (R-Plano), added the language, “other than a multiple user bathroom.”   Presumably, Van Taylor, who previously made the list of Texas’ Worst Legislators  Read More →

5th Circuit Decision: Pro-Employer or Anti-Religion?

5th Circuit Decision:  Pro-Employer or Anti-Religion? I don’t think anyone would fault the way Kelsey Nobach handled the unusual request she received at work on September 19, 2009. Nobach, a nursing home employee, was advised by a non-supervisory CNA (certified nursing assistant), that a resident was asking that someone read the Rosary to her. Nobach, who is a Jehovah’s Witness, stated that she could not read the Rosary due to her religion, but she did not identify her religion. The resident complained, and Nobach’s employer terminated her employment without questioning Nobach as to her reasons.   During the termination meeting, a supervisor advised Nobach that she was being terminated for refusing to read the rosary to a patient.   Nobach responded, “Well, I can’t pray the Rosary.  It’s against my religion.”    To which the supervisor replied, “I don’t care if it is against your religion or not.   If you don’t do it, it’s insubordination.” Nobach filed suit alleging religious discrimination, and a  Read More →

Why Lies Matter in Employment Cases

Why Lies Matter in Employment Cases The El Paso Times has reported that the CEO of an El Paso public hospital was publicly challenged on apparent inconsistencies he made regarding a 2014 layoff of fifty-six employees – the same year the hospital paid bonuses to the CEO and a few other select personnel. At the time of the layoff, the hospital sent letters to the employees informing them of their separation, and that the decision was budgetary, and unrelated to their performance.     It is unclear from the article how the hospital selected these employees for layoff, or if the hospital had any written policies governing how reductions in forces (RIFs) would be implemented. Approximately one year later, the hospital is now projecting fiscal growth.  In response to the optimistic news, the same CEO was asked by El Paso County Commissioner’s Court if some of the laid off employees would be rehired.   Surprisingly, the CEO responded that “a good third of it (laid off  Read More →