Articles Posted in Employment Litigation

Thanks to a new law that went into effect on January 1st of 2015, employers are required to immediately report all serious workplace injuries to the Occupational Safety and Health Administration (OSHA). However, OSHA says that not all employers are doing as required. It estimates that 50 percent of the severe injuries suffered in the workplace went unreported by employers last year.

Failing To Report Serious Injuries To OSHA Means Increased Penalties

According to an article from Manufacturing.net, OSHA’s estimate is based on comparisons between states’ workers’ compensation reports and the number of incidents actually reported by employers.

Texas residents who are familiar with Life Alert products that are marketed to elderly consumers may be surprised to learn that the company is being sued for age discrimination and sexual harassment. On May 6, a former employee of Life Alert Emergency Response Inc filed a $7 million lawsuit after he claims he was fired for his age, cancer diagnosis and objections to sexual harassment.

Life Alert is best known for its television ads that feature the slogan ‘Help, I’ve fallen and I can’t get up.” The company sells wearable devices that can be used by elderly and disabled people to call for assistance when they experience an emergency. The plaintiff in the lawsuit, who is now 71 years old, worked as a Life Alert sales manager and was employed by the company for 12 years.

According to the plaintiff’s discrimination claims, he was fired without warning on Nov. 10. The former Life Alert employee says that the firing came shortly after he had started radiation therapy for prostate cancer. He also says that he believes he was fired in retaliation for complaints he had made about employee misclassification and sexual harassment of female employees at the company. The company’s chief executive reportedly responded to the man’s complaints about sexual harassment by saying that nobody was forcing the women to stay.

Walmart is facing a lawsuit from a labor union after closing five of its stores in Texas, Oklahoma, Florida and California. According to the National Labor Relations Board claim that was filed by the United Food and Commercial Workers International Union on April 20, the retail giant closed the stores to retaliate against workers who were trying to organize.

The store closures that led to the employment lawsuit reportedly happened abruptly and led to 2,200 workers being laid off. Before the stores closed, workers at the five locations were given only a few hours notice that they would be laid off. One of the stores that was closed was a store in Pico Rivera, California, where Walmart workers had gone on strike for the first time in the company’s history. Although the union claims that the store closures were retaliatory, Walmart says that the stores were closed temporarily due to plumbing issues.

The union representing Walmart employees is asking the NLRB to impose an injunction that will require Walmart to rehire all of the people who were laid off. The allegations that were made by the union are being investigated, but it could be several months before an NLRB administrative law judge makes a decision in the case.

Texas businesses may be interested in some information about the legal standard for employer retaliation cases in the U.S. According to the United States Supreme Court, retaliation isn’t limited to just firings and pay cuts; it can come in many forms.

When it comes to wrongful discharge of an employee, there can often be a fine line between what is legal and what is not. While terminating someone’s employment because they do not perform their job correctly is legal, firing them in retaliation for some other action is not okay. A Supreme Court decision from a few years back gave us a legal standard for determining whether an action on the part of the employer is considered retaliation. This standard defines retaliation as any materially adverse move by the employer meant to stop a reasonable worker from making discrimination claims in the workplace. This could be a job reassignment or other action on the part of the employer.

This ruling gives employees some specific things to watch out for if they are complaining about any type of discrimination or otherwise trying to exercise a legal right at work. If there is some adverse action taken by the employer to stop the employee from exercising these rights, there may be a cause of action. It is important to note that there needs to be a connection between the adverse action and the complaint, however. The adverse action does not need to be termination, a demotion or a pay cut, however. It just needs to be materially adverse to the employee.

A company in Texas may ask an employee to sign a non-compete agreement as a condition of employment. However, there may be limitations as to what can be included in the agreement. Typically, courts prefer that competition is increased in the marketplace instead of restricted. Therefore, a business may need to prove that it would be harmed if the non-compete agreement was not put into effect.

In addition to proving that the non-compete is vital to protecting a business interest, it may not be so broad as to prevent a professional from finding work. The common calling doctrine holds that a non-compete is typically not needed when an employee only has a general knowledge about a particular company or industry. Employers should be aware that a non-compete clause is only enforceable if it is part of an employment agreement or another type of enforceable agreement.

For a Texas employer, it may be easier to have an employee sign a non-disclosure or confidentiality agreement. This merely limits what an employee is allowed to talk about with competitors for a certain amount of time. It typically does not expressly limit where an individual can work or for whom that individual may work for. It is also considered to be easier to enforce in court.

If your business depends on its intellectual property and proprietary information to maintain a competitive edge, it’s important to protect these assets whenever possible. In many cases, the best way to do that is to ask your employees to sign a non-compete agreement.

Employee “poaching” means that for the right price, one of your valued employees could be lured away by another company, taking even more valuable information with him. A non-compete agreement is a way of making sure that this doesn’t happen.

Oftentimes, non-compete agreements have provisions saying that an employee will not work for a competitor for a certain period of time after leaving the company or will not work for a competitor within a certain geographical proximity. Intellectual property developed by that employee may also be protected if it was developed on company time and for company purposes.

Even here in Texas, government regulations on businesses can be pretty strict. This is especially true of regulations governing employee hiring and firing practices. As just one example, consider the Americans with Disabilities Act.

The ADA requires employers to make “reasonable accommodations” to allow employees (or potential employees) to perform their job duties successfully. Businesses are allowed to deny these accommodations only if they would present an “undue hardship.” While there have been some precedent-setting lawsuits since the ADA was enacted in the early 1990s, the terms “reasonable accommodation” and “undue hardship” are still somewhat ambiguous. This lack of clarity can lead to legal issues for even well-intentioned companies.

Recently, for instance, Papa John’s Pizza was sued by the Equal Employment Opportunity Commission for allegedly violating the Americans with Disabilities Act. According to news reports, a Papa John’s operating partner visited a store location in Utah and allegedly ordered that an employee with Down syndrome be fired because the employee required the assistance of a job coach.

When many small business owners start their company, most know exactly what products or services they want to offer and how to differentiate themselves from their competitors. They may even know exactly what they want their future office to look like once the company grows.

If you have a dream for your small business, chances are good that you haven’t been fantasizing about compliance with employment laws, safety regulations and payroll systems. Yet these aspects are vital to the smooth operation of a business, which is why hiring a human resources manager (or department) is a good idea.

HR managers have (unfairly) come to symbolize workplace political correctness and bureaucracy. They are often the punch lines of jokes about the banality of corporate life. Some business owners view HR departments as either a necessary evil or an unnecessary nuisance.

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