Texas Employment Law Blog

Texas Employment Law Blog

Employment Law and Discrimination Issues

Mandatory Arbitration: How American Employers Opt Out of the Justice System

Posted in HR Management, Legislation, Trial Practice & Litigation Issues

Mandatory forced arbitration is a nationwide problem in the employment context that needs to be addressed by lawmakers.  A recent study reported that roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise – even if they are bound by forced arbitration terms. And most Americans are unaware of the rights being taken away from them. Approximately two-thirds of those who have had an arbitration agreement enforced against them cannot remember seeing anything about forced arbitration in their Terms of Employment. This is because employers are not required to call arbitration language to employees’ attention in any particular way or provide them with any specific information about the true meaning of the often legalistic language contained in an arbitration policy, clause, or handbook provision. So, many employers simply hide the provision in their large employment handbook that employees may or may not be given a copy of and have employees sign a written acknowledgement of having read it along with the 50 or so other documents that they rush new hires through on their first day.

An excellent article came out this past week by Carmen Comsti, The Employee Rights Advocacy Institute‘s Paul H. Tobias Attorney Fellow, highlighting recent news stories of how employers are attempting to opt-out of complying with our nation’s worker protection laws. Comsti writes:

“Forced arbitration compels workers to give up their rights to go to court and a trial by jury. It is imposed on workers by their employers requiring them to resolve workplace disputes before they arise in private arbitration rather than in a public court. Forced arbitration is anathema to our public justice system because it occurs in secret, private tribunals in the absence of accompanying legal safeguards such as a written record of the arbitration proceedings, the right to appeal the arbitrator’s decision if the law is not applied correctly, or other guarantees that ensure a fair process. Workers often have no knowledge or understanding of forced arbitration provisions, but yet are required by employers to “agree” to it in order to get or keep a job. Forced arbitration reaches nearly every job sector in the country—-from retail workers and restaurant employees to uniformed servicemembers and medical professionals. At least 27 percent of America’s employers mandate their employees submit to forced arbitration, affecting more than 36 million people, or one-third of the non-union workforce. Despite the growing prevalence of forced arbitration, the injustices that workers suffer from it are only now being brought to the public’s attention thanks to recent articles in the press. The following are some examples.

The Raiderettes Take On The Oakland Raiders

The Oakland Raiderettes filed a lawsuit last year against the Oakland Raiders alleging that it routinely violated California labor laws. This was the first in a series of lawsuits initiated by current and former National Football League (NFL) cheerleaders challenging the NFL’s entrenched system of long hours, meager pay, and paternalistic work rules. In the Raiderettes’ case, the Raiders paid the cheerleaders $125 per home game but required them to participate in practices, rehearsals, meetings, workouts, public events, uniform fittings, and photo shoots without compensation. Their contracts also imposed fines and discipline for minor deviations in physical appearance, such as weight gain and improper hair color.

The Raiderettes, however, may never have their day in court because their contracts force them to arbitrate their workplace disputes—-believe it or not—-before NFL Commissioner Roger Goodell. Commentators have cast doubt on whether the Raiderettes will receive a fair hearing under the circumstances. A California state court will decide later this year if the contract violates basic legal requirements of fairness and consent or if the Raiderettes will be forced into arbitration.

Federal Court Raises Concerns About Uber’s Arbitration Clause Requiring Waiver Of Access To The Courts

In May, a federal court in California ordered Uber to change the wording of an arbitration clause in its contracts with drivers because it is potentially misleading and coercive. Uber drivers filed a lawsuit alleging the company cheated drivers out of their tips and misclassified them as independent contractors rather than employees. After Uber drivers filed similar lawsuits in Massachusetts and Illinois, but before the California case was filed, Uber surreptitiously changed its terms of service with its drivers by adding an arbitration provision requiring them to waive their right to participate in any lawsuit against the company pending in court. Recognizing Uber’s unscrupulous attempt to interfere with current and potential drivers’ access to the courts, the California federal court ordered Uber to send out corrective notices about the provision to Uber drivers. The federal court will consider the merits of the case once the drivers have been properly informed of their rights to participate in the lawsuit.

U.S. Servicemembers Forced To Arbitrate Workplace Claim

Forced arbitration also has been imposed on our nation’s uniformed servicemembers, such as Captain Nicole Mitchell who was discriminated against in the workplace because of her military service. A U.S. Air Force Reserve Officer, Captain Mitchell was deployed for military service every few weeks with the elite “Hurricane Hunters” aircrew to track tropical storm patterns and developments. When she was not fulfilling her military duties, Captain Mitchell worked as a top rated on-air meteorologist for The Weather Channel. After The Weather Channel was purchased by NBC Universal in 2008, new management demoted and later terminated Captain Mitchell for taking time off to perform her duties as a Hurricane Hunter. Captain Mitchell filed a lawsuit against NBC Universal and The Weather Channel in federal court for violation of her rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but discovered that her employment contract contained a forced arbitration provision. The federal court enforced the forced arbitration clause and Captain Mitchell’s case was sent to arbitration in 2012. Since then, Captain Mitchell has been unable to secure employment as an on-air meteorologist and has been waiting for the arbitrator to hear her case.”

Defense Lawyers Seem to Agree

Most business-side employment lawyers I speak to seem to agree, although for different reasons. They point out that research shows arbitration is neither faster nor less expensive than litigation. Couple that with the lack of appellate opportunities when something goes wrong and it really doesn’t come out as a better option for companies either.




  • Originally Published 5-27-14
  • Updated:  5-20-15

It’s Time for Paid Family and Medical Leave

Posted in FMLA, Legislation

The United States is the only developed country that doesn’t have a national requirement that workers get access to paid sick leave. The lack of a law leaves nearly 40 percent of Americans without access to leave. But progress has been made at the state and local level: three states — California, Connecticut, and Massachusetts — and 16 cities have passed paid sick leave legislation, covering millions of workers.

John Oliver recently had a humorous but thoughtful piece on the subject on his show, Last Week Tonight:

President Obama has proposed the passage of the Healthy Families Act, a bill that would require most employers to give workers paid sick leave. The legislation calls for businesses with 15 or more employees to let them accrue up to seven paid sick days a year to care for themselves or a family member who falls ill. The White House estimates that it would give 43 million workers access to leave who don’t already have it. The leave could also be used by victims of domestic violence, sexual assault, or stalking to recover or seek assistance.

Unfortunately, such a bill is unlikely to make it through our current congress. Until the political gridlock in Washington changes, U.S. employees will continue to have to struggle whenever a birth or family illness occurs.

Hat Tip: Jon Hyman


EEOC Begins a Rollout of New Online Charge-Handling System

Posted in HR Management, Trial Practice & Litigation Issues

EEOC140822ACT Digital Pilot Program Allows Online Interaction With Employers

Last week the EEOC announced that 11 of its 53 offices will begin a pilot program called ACT Digital to digitally transmit documents between the EEOC and employers regarding discrimination charges. This is the first step in the EEOC’s move toward an online charge system that will streamline the submission of documents, notices and communications in the EEOC’s charge system. This system applies to private and public employers, unions and employment agencies.

The EEOC receives about 90,000 charges per year, making its charge system the agency’s most common interaction with the public. The EEOC’s ACT Digital initiative aims to improve customer service, ease the administrative burden on staff, and reduce the use of paper submissions and files.

The first phase of ACT Digital allows employers against whom a charge has been filed to communicate with the EEOC through a secure portal to download the charge, review and respond to an invitation to mediate, submit a position statement, and provide and verify their contact information. The newly designed EEOC notice of a charge will provide a password-protected log in for the employer to access the system in the pilot offices. Employers will also have the option of opting out of the pilot program and receiving and submitting all documents and communications in paper form.

EEOC Chair Jenny R. Yang commended ACT Digital as an innovative first step in streamlining the agency’s charge system.

“The EEOC’s pilot of a digital charge system is an important step forward that will benefit the public and our staff,” Chair Yang noted. “This will improve our responsiveness to the public, efficiently utilize our resources, and protect the security of documents in our online system. We encourage employers to provide candid feedback and suggestions during the pilots so we can make adjustments to strengthen the system.”

The pilot begins May 6, 2015 in the following EEOC offices: Charlotte, Greensboro, Greenville, Norfolk, Raleigh, Richmond and San Francisco. The EEOC offices in Denver, Detroit, Indianapolis and Phoenix will also begin their pilots by the end of May 2015.

Follow-Up Links




File a Charge With the EEOC Immediately Or Risk Losing Your Case

Posted in Age Discrimination, Disability Discrimination, Pregnancy Discrimination, Race / National Origin Discrimination, Retaliation, Sexual Discrimination

EEOC140822Some prospective clients are surprised to learn that most of wrongful termination or sexual harassment matters than an employment lawyer handles cannot be taken straight to court. This is, unfortunately, true.

Most cases having to do with discrimination or wrongful termination relating to an EEO category (age, race, sex, disability, etc) must go through a required administrative process before a lawsuit can be filed. Even more confusing is the fact that you may have more than one administrative agency to choose from when deciding where to file. Does it matter where you file? Sometimes yes. This administrative process and the choices that must be made early on in your case is one of the best reasons to consider hiring a lawyer earlier rather than later. More on why that is later. Short of that, here are some answers to some of the more basic questions regarding administrative filings:

What Types Of Cases Must Be Filed Administratively?

If your case involves potential claims for discrimination or termination based on an EEO category (age, race, sex, disability, religion, etc) then you probably need to file administratively. Claims for sexual harassment or retaliation for making a complaint or participating in an investigation of an EEO-related matter also must be filed administratively.

When Do I Need To File? Short Answer: IMMEDIATELY.

No really. The limitation periods for these types of claims vary depending on numerous factors but they are all short. In many states you will lose your right to pursue an action if you don’t file a Charge with the EEOC within 180 days of the event or occurrence you are complaining about. If you are a federal worker the deadline can be as little as 45 days. These are hard, fixed deadlines. There is no extending them because you had a good reason for delay. In many states, you only have 180 days to file a charge with the EEOC or lose your right to sue FOREVER, no matter how blatant the discrimination.

Where Do I Need To File

The default place to file your discrimination, sexual harassment or retaliation Charge is with the Equal Employment Opportunity Commission. They have offices in most metropolitan areas. Learn more here: http://eeoc.gov/employees/charge.cfm. You can also file a Charge by contacting them by phone at (800) 669–4000 (be prepared to wait an hour or more). However, depending on where you live, it might be better to file with a state or city agency that has a work-sharing agreement with the EEOC. Contact an employment lawyer near you to help you decide what is the best course of action in your area.

What Is The Process?

Filing a Charge is relatively easy once you arrive at the agency’s offices. You fill out a short form and then meet with an investigator who will complete the Charge documents for your signature. Each field office has its own procedures for appointments or walk-ins so check the website or call ahead for best results. It is always helpful if you bring with you to the meeting any information or papers that will help the investigator understand your case. For example, if you were fired because of your performance, you might bring with you the letter or notice telling you that you were fired and your performance evaluations. You might also bring with you the names of people who know about what happened and information about how to contact them.

Important: Keep in mind that the EEOC (and similar state agencies) can only investigate issues having to do with terminations and/or discrimination relating to EEO issues or retaliation for having made a complaint regarding EEO issues. They don’t investigate overtime or other pay issues and cannot help you if your termination is just because “my boss was mean.” Your issue must be EEO-related.

What Happens Next?

Once you have filed a Charge you may be invited to mediation. This is a topic for another article but the short version is that mediation is a voluntary process where the two sides of the dispute (you and your employer) sit down with an EEOC mediator for free to see if you can work out your differences and reach a pre-suit settlement. It is an excellent free service that the EEOC provides and I highly recommend it for most cases. Keep in mind, however, that you will benefit from having a lawyer with you at a mediation unless your case is so small that you wish to settle it for very little money (typically less than $15,000.00. If your case is worth more than this baseline amount, having a good lawyer will typically enhance the value of your case by more than you will end up paying your lawyer in fees up front or in a contingent fee on the back end.

How Do I Find A Good Lawyer?

This can be a difficult task but it is worth your time to find the right lawyer for your case. Geography plays a big role here. In some parts of the country there will be many qualified lawyers to choose from. In other areas there will be few. To get started, review my article on How to Hire an Employment Lawyer.

Same-Sex Spouses Enjoy FMLA Protection In All But Four States – And Yep, Texas is One of the Four

Posted in FMLA, Sexual Discrimination

FMLA Same SexThere has been a good deal of reporting over the last month or so about the Department of Labor’s recently-implemented final FMLA rule that expanded the definition of “spouse” under the FMLA to include employees in legal same-sex marriages. Both employee-side and employer-side groups praised the new rule because it brought uniformity to FMLA regulations.

Although this rule took effect on March 27, 2015, a federal district court ruling in Texas left the status of the new rule in limbo.

After the DOL issued its final rule, Attorneys General in Texas, Arkansas, Louisiana, and Nebraska filed suit in a federal district court in Texas asking the court to strike down the DOL’s final rule. The court granted an injunction and halted the DOL’s enforcement of its final rule. Given this ruling, it was uncertain what the DOL would do. The agency has since announced that it will not enforce the rule in the four states of Texas, Arkansas, Louisiana and Nebraska.

In a court filing, the DOL said: “[W]hile the preliminary injunction remains in effect, the [DOL does] not intend to take any action to enforce the provisions of the Family and Medical Leave Act (FMLA) . . . against the states of Texas, Arkansas, Louisiana, or Nebraska, or officers, agencies, or employees of those states acting in their official capacity, in a manner that employs the definition of the term “spouse” contained in the February 25, 2015, final rule . . . .”

However, the DOL confirmed it will enforce the rule in the remaining 46 states.

A Win for Pregnant Workers at the Supreme Court

Posted in Pregnancy Discrimination, Sexual Discrimination

OLYMPUS DIGITAL CAMERAPeggy Young, a UPS driver who was forced from her when she got pregnant because the company wouldn’t allow her to work light duty, was victorious late last month at the U.S. Supreme Court. You can read the entire opinion here.

“Conservative” Supreme Court Justices John Roberts and Samuel Alito joined with the “liberal” justices on the Court in what most observers are characterizing as a big win, not just for pregnant women, but also for all women in the workplace. That is no small feat from a court that has in recent years narrowed interpretations of anti-discrimination law and been reluctant to impose any new burdens on businesses.

The case had brought together an unusual alliance of women’s rights activists and anti-abortion groups, who argued that women shouldn’t have to choose between her pregnancy and her job.

The 6-3 opinion, written by Justice Stephen Breyer, sends the Young case back to the Fourth Circuit of Appeals, which had previously ruled against Young, with a new set of rules that should make Young’s chances of prevailing “very strong.” The Fourth Circuit, Breyer wrote, should have asked, “Why, when the employer accommodated so many, could it not accommodate pregnant women as well?”

Justices Anthony Kennedy, Clarence Thomas and Antonin Scalia dissented. Young argued that because UPS accommodated other kinds of workers, such as injured ones or drivers who had lost their Department of Transportation licenses, it was discriminatory not to extend the same to pregnant women who also temporarily needed to be accommodated. The court’s majority didn’t entirely accept that argument, but it did say that pregnant workers could bring claims under the long-settled “McDonnell Douglass process for adjudicating other discriminatory claims under Title VII of the Civil Rights Act.

Under the court’s reasoning, Young wouldn’t have to show UPS was intentionally discriminating against pregnant workers, but a court would have to “consider the extent to which an employer’s policy treats pregnant workers less favorably than it treats non-pregnant workers similar in their ability or inability to work.”

UPS has reportedly already changed its policy to explicitly include accommodations for pregnant workers, but the rules laid out by the case will impact working women at companies around the country, since they guide lower courts in future litigation.

Supreme Court Agrees to Decide Same-Sex Marriage Issue

Posted in Other Articles

On Friday, January 16, 2015, the Supreme Court agreed to hear four cases from the Sixth Circuit concerning whether under the Fourteenth Amendment a state can permissibly ban same-sex marriage.  The Court previously side-stepped this issue in its 2013 decision in United States v. Windsor.  In Windsor, the Court found that under the due process clause of the Fifth Amendment the Federal government must extend the Federal rights and benefits of marriage to legally married same-sex couples.   Windsor, however, did not address the underlying question of whether states are required to recognize and/or solemnize same-sex marriage.

Subsequent to Windsor, over 40 courts at the state and Federal level have struck down state bans on same-sex marriage, holding that such bans violate the Fourteenth Amendment.  These decisions have caused the number of states that permit same-sex marriage to rise from eleven at Windsor’s issuance to thirty-six.  A large part of this increase was due to the Supreme Court’s decision on October 6, 2014 not to grant certiorari to the decisions of the Fourth, Seventh, and Tenth Circuit Courts striking down state marriage bans.  By not granting certiorari in October, the stays expired on the Circuit Court decisions, and same-sex marriage was legalized in eleven states.

In granting certiorari on the instant petition, the Court set briefing and argument on two issues. First, whether the Fourteenth Amendment requires a state to license a marriage between two people of the same sex; and second, whether the Fourteenth Amendment requires a state to recognize a same-sex marriage legally licensed in a different state.

Should the Court find that the Fourteenth Amendment requires states to license same-sex marriages, the fourteen remaining same-sex marriage bans will be nullified.  Employers operating in those states would need to conform certain employment policies (such as FMLA leave) to cover same-sex spouses in the manner that employers in the majority of states have had to in the wake of Windsor.

A ruling striking down marriage bans would also create a unique situation: all states would be required to permit same-sex marriage, but employers in the majority of states could still fire an employee for being gay or for being in a same-sex marriage.  Employees, emboldened by a ruling that legalizes same-sex marriage and frustrated by a Congress that has not expressly outlawed LGBT discrimination, are likely to increasingly use the Court to argue that LGBT discrimination is a form of sex discrimination, and is thus barred under Title VII.  The EEOC and the Obama administration already take this position.  Whether courts will be receptive to such a reading of the law, remains an open question.  However, language in a Supreme Court decision finding that LGBT individuals are a protected class under the Fourteenth Amendment, may give such an argument more persuasive effect.  An additional outcome of a legalization of same-sex marriage is that opponents of same-sex marriage will work to pass state legislation that allows individuals (including employers) to make decisions based on their religious faith.  Such laws, which are premised on the Supreme Court’s decision in Burwell v. Hobby Lobby, 573 U.S. ____ (2014), and on the Religious Freedom Restoration Act (“RFRA”), will allow employers to argue that they can lawfully deny benefits to same-sex spouses (such as spousal health benefits under an ERISA plan) even in the face of an expansive reading of Title VII.  In the Hobby Lobby ruling, the Court made a point of noting that a closely held corporation’s religious beliefs could not be used to justify race discrimination.  However, the Court did not address whether an employer’s religion rights can justify denying benefits to LGBT individuals.  The answer to this question will only be decided by clarifying Federal legislation or by a subsequent Supreme Court decision.

A ruling allowing states to ban same-sex marriage but requiring them to recognize legal marriages performed elsewhere would avoid many of these issues as it would be limited to the principle of comity (recognizing contracts performed in other states) under the Constitution’s Full Faith and Credit Clause. Such a narrow holding, would allow same-sex couples in all 50 states to obtain a marriage license recognized by the state and Federal government, so long as the marriage took place in a jurisdiction that recognized the union.  This outcome would create certain difficulties for employers as they would be required to examine the wedding licenses of their same-sex employees to ensure that the marriage took place in a state where the marriage was legal.  However, such a burden is likely de minimis, given that most employers already require proof of marriage before extending spousal benefits to an employee’s spouse.  Of course, such a ruling would also reverse the gains of the marriage equality movement.  Same-sex marriage bans would remain Constitutional, thereby allowing marriage bans to be revived in a majority of states (the fourteen states with in-effect bans, plus all states in which Courts have invalidated same-sex marriage bans post-Windsor).  Such an outcome would be a setback from those arguing for increased rights for LGBT individuals (including LGBT employees).

An even more crushing blow to the LGBT rights movement would occur if the Court found that the Constitution does not require states to license or recognize same-sex marriages.  Such an outcome would keep in effect the marriage bans in fourteen states, and allow over 20 states to argue that their marriage bans, which were struck down by lower courts, should be given full effect on a prospective basis.  Such a ruling would have ripple effects beyond the same-sex marriage context.  Just as pro-LGBT language from the Supreme Court will likely have an impact on lower court jurisprudence regarding issues surrounding LGBT individuals (including employment and employee benefit discrimination), so too would less positive or negative language from the Supreme Court make lower courts more wary of issuing rulings that increase LGBT rights.

EEOC Releases 2014 Statistics

Posted in Age Discrimination, Disability Discrimination, Pregnancy Discrimination, Race / National Origin Discrimination, Retaliation, Sexual Discrimination

eeocThe Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tablesproviding detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings–which included the period of the shutdown–were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC’s Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

“Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination,” said EEOC Chair Jenny R. Yang. “The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity.”

The updated data include the popular tables of Statutes by Issue and Bases by Issue. “Bases” refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast “issue” is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.

  • Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
  • Race (including racial harassment): 31,073 (35 percent)
  • Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
  • Disability: 25,369 (28.6 percent)
  • Age: 20,588 (23.2 percent)
  • National Origin: 9,579 (10.8 percent)
  • Religion: 3,549 (4.0 percent)
  • Color: 2,756 (3.1 percent)
  • Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII’s sex discrimination provision
  • Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges ofRace Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

Supreme Court Issues Opinion in Young v. UPS Pregnancy Discrimination Case

Posted in Pregnancy Discrimination, Sexual Discrimination

The US Supreme Court has issued an opinion in Young v. United Parcel Service, Inc. – holding that employers must provide accomodations for pregnant employees to the same degree that they provide accommodations to other employees. The opinion is fresh off the press so I’ll post a lengthier analysis after I get time to read and digest the full opinion.

In the meantime, I’ve included the full text of the the Court’s Syllabus (summary) of the decision and a copy of the full opinion can be downloaded here.





No. 12–1226. Argued December 3, 2014—Decided March 25, 2015

The Pregnancy Discrimination Act added new language to the defini­tions subsection of Title VII of the Civil Rights Act of 1964. The first clause of the Pregnancy Discrimination Act specifies that Title VII’s prohibition against sex discrimination applies to discrimination “be­cause of or on the basis of pregnancy, childbirth, or related medical conditions.” 42 U. S. C §2000e(k). The Act’s second clause says that employers must treat “women affected by pregnancy . . . the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Ibid. This case asks the Court to determine how the latter provision applies in the context of an employer’s policy that accommodates many, but not all, workers with nonpregnancy-related disabilities.

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Non-Compete Agreements Are The New Black, Part 2

Posted in Noncompete Law

Non-Competes Ne BlackLast week I discussed the fact that non-compete agreements are becoming an ever-increasing threat to employees throughout the country. Recent statistical studies indicate that one in four workers have signed a non-compete in their lifetime and 12.3 percent all workers are bound by one right now. Those numbers might be even worse here in Texas, where non-compete agreements have become extremely enforceable in recent years.

So, given this state of affairs, what is an employee who is presented with non-compete do to protect himself or herself? Here are some thoughts on the subject:

  • Inquire About Non-Compete Agreements Before You Accept A Job

The time to talk to an employer about a non-compete agreement is BEFORE you take a job. Once you quit your current job, accept a new position, and possibly move your family to a new locale, your bargaining power as it relates to a non-compete agreement drops dramatically. Many employers wait until after you start working to bring you the proposed non-compete agreement for your signature. By then it may realistically be too late for you to refuse the agreement.

During the interview process, you will be asked if you have any questions. Most people say “no”. You need to say “Yes. Will I be asked to enter into a non-compete agreement?” Get it out in the open early. The fact that one exists doesn’t necessarily mean that you can’t take the job. But by addressing it before you accept the position you will be able to review it and possibly seek modification of the terms to something that everyone can live with while you still have bargaining power with your prospective employer.

  • Don’t Blindly Sign All Of That “New Employee” Paperwork

At the beginning of every new job, every employee is presented with many documents for their review and signature. Most employees don’t really review them carefully. The HR officer handling the process seems to be in a hurry. As a new employee, you are eager to make a good impression. So you just flip through the documents and sign off on them.

Let me be clear: Don’t Do This. It is a very bad idea.

Take the time to actually read the documents that are put in front of you. These documents might be asking you to waive your right to a jury trial in the event of a wrongful termination. They might be indicate your agreement to draconian non-compete provisions. They are important. So, please read them carefully. If you have questions about what they mean then ask the person who is running the on board process what they mean. If you still have questions then respectfully ask for time to take them home and review them and bring them back. Will the busy HR rep be miffed? Maybe. But who cares. This is your career and your family’s welfare we are talking about here. NEVER sign anything you don’t 100% understand and agree with.

If you ignore this advice and them come to me after you get fired to try to help you get out of something you signed way back when, I won’t be able to do near as much good as I could have before you signed the agreements.

  • Consult With An Employment Lawyer Before You Sign The Agreement

The time to consult an employment attorney about a non-compete agreement is before you sign it. Not after. I routinely am asked to represent employees regarding non-compete agreements and unfortunately 90% or more of these clients come to me after their employment has ended regarding a non-compete agreement they signed years ago without giving the matter enough thought.

If you don’t 100% understand what a proposed non-compete means, don’t sign it. Call an employment lawyer and come in for a quick consultation. Non-competes often are not a big deal given the situation but you need to know exactly what it means and just how enforceable it is before you lock yourself in.

  • When Possible, Negotiate As A Group

I recently handled a non-compete situation in which a company was purchased by a larger company and, following the purchase, all 30 employees in the local office were sent non-compete agreements and told (not asked) to sign them. Two of these employees came to see me and we quickly communicated to the rest of the 30 employees in the office.

The non-compete agreement would have required employees to agree not to work in the industry for a full year if they quit or were fired for any reason. This is not an unusual restriction but can be very hard on an employee if they later leave or are let go by the company.

The two employees didn’t want to sign the agreement but were worried that if they didn’t then they would likely be terminated. I told them they were likely correct about that. Fortunately we were able to get with the rest of the employees in the local office and the entire group decided as a unit that they would all refuse to sign the agreement.

Guess what happened when all 30 employees in the local office refused the non-compete. That’s right: the company backed off.

There is strength in numbers. Use it. Even if you don’t have a union at your workplace (and most employees in Texas unfortunately do not) there is nothing stopping you from discussing workplace terms and conditions and working together as a group. As Ben Franklin said, “[w]e must hang together or we shall surely hang separately.”

  • Don’t Be Afraid To Walk Away

Lastly, don’t be afraid to refuse to take a job or to quit an existing job if the employer is demanding you sign an unfair and overly restrictive non-compete. Walking away from a job or potential job feels risky, I know. But believe me, signing an overly restrictive non-compete without adequate severance payment protection is even riskier.