Friday, December 22, 2023

Understanding Workplace Injuries and Workers' Compensation in Texas: What You Need to Know

Workplace injuries can be a turning point in any employee's life. But when it comes to workers' compensation in Texas, things can get complicated, especially if your employer is not a subscriber to the Texas Department of Insurance (TDI) Workers' Compensation system. At Vargas Guerra, LLP, we often encounter confusion and misconceptions about this very issue, and it's crucial for both employees and employers to understand the legal landscape.

Texas Workers' Compensation: A Choice for Employers

In Texas, unlike many other states, employers have the option to opt out of the state-run workers' compensation system. These non-subscribing employers may set up their own injury compensation system or may have no system at all. However, this choice carries significant legal implications, especially when an employee is injured on the job.

The Implications of Not Subscribing to State Workers' Comp

For employers who aren't subscribers to the TDI system, the stakes are high in the event of a workplace injury. Contrary to a common misconception, non-subscribing employers do not enjoy immunity from being sued for on-the-job injuries. In fact, under Texas law, they lose some key defenses in personal injury claims, such as arguing that:

  • The injured worker’s negligence caused the injury.
  • The injury was caused by the negligence of a fellow employee.
  • The injured employee knew about the danger and voluntarily accepted it.

This can leave non-subscribing employers significantly more vulnerable in workplace injury lawsuits.

What This Means for Injured Workers

If you're an employee who's been injured at work and your employer is not a subscriber to the state's workers' compensation system, you may have the right to sue for damages. This could include compensation for medical expenses, lost wages, pain and suffering, and even punitive damages in some cases.

Seek Legal Assistance

Navigating the aftermath of a workplace injury can be challenging, particularly in Texas with its unique workers' compensation laws. If you find yourself or a loved one in such a situation, it's crucial to seek legal advice to understand your rights and options.

At Vargas Guerra, LLP, we're committed to guiding workers through these complex legal paths and advocating for their rights. If you have questions about a workplace injury, workers' compensation, or your employer's responsibilities under Texas law, contact us for a consultation.

Stay informed and stay protected. Know your rights in the event of a workplace injury, especially in the complex legal environment of Texas workers' compensation laws.

Contact Vargas Guerra, LLP



Wednesday, November 15, 2023

How VARGAS GUERRA, LLP Can Support Your Small Business

 Empowering Your Business Every Step of the Way

Small businesses are the backbone of our community, driving innovation and growth. At Vargas Guerra LLP, we understand the unique legal challenges you face. Our goal is to provide flexible, affordable legal solutions that grow with your business. Here's how we can help:


À La Carte Legal Services

Our à la carte legal services are designed to meet your specific needs without the overhead of a full-time legal department. You can choose from a range of services, each tailored to the particular challenges and opportunities small businesses encounter.


Our À La Carte Offerings Include:

Contract Drafting and Review: From vendor agreements to employee contracts, ensuring that your agreements protect your interests.

Compliance Audits: Navigating the complexities of state and federal regulations can be challenging. We offer comprehensive audits to ensure your business is compliant.

Intellectual Property Advice: Protecting your brand and innovations is crucial. We provide guidance on trademarks, copyrights, and patents.

Employment Law Consultation: We help you navigate hiring practices, employee handbooks, and dispute resolution.

Business Formation and Structuring: Whether you’re starting up or restructuring, we offer advice on the best legal structure for your business.

Legal Insurance Plans

For ongoing support, consider our legal insurance plans. For a fixed monthly or annual fee, you gain access to legal advice and services. This can include contract reviews, legal consultations, and certain types of legal representation.


Monthly Seminars

Knowledge is power, especially when it comes to legal matters. That's why we host monthly seminars on topics relevant to small businesses. These sessions provide valuable insights into legal best practices and the latest changes in the law.


Upcoming Seminar Topics:

Navigating Small Business Taxes

Employment Law Updates

Digital Marketing and the Law

Understanding Commercial Leases

Why Choose Vargas Guerra LLP?

Tailored Solutions: Our services are customized to meet the unique needs of your business.

Cost-Effective: With our à la carte services and legal insurance plans, you get top-tier legal services without breaking the bank.

Expertise You Can Trust: Our team has a wealth of experience in business law, ensuring that your business receives competent and reliable advice.

Proactive Approach: We believe in preventing legal issues before they arise, saving you time and resources.

At Vargas Guerra LLP, we’re more than just your attorneys; we're your partners in business growth. Let us handle the legalities, so you can focus on what you do best – running your business.

Contact us today to learn more about how we can support your business's legal needs.



Wednesday, April 5, 2023

The Deprivation of Texas citizens Constitutional Rights in Employment Law

The rights of the citizens/employees of this great State of Texas under the Texas Constitution are under attack.  As an attorney, I took an oath to protect the Constitution of the United States and the Constitution of Texas.  It is our duty to uphold the law and to advocate for our clients while also upholding the principles of the Texas Constitution.  The Texas Constitution is the supreme law of the land and we have a responsibility to ensure that statutes are not in conflict with it.

In the Employment arena, we have witnessed an all-out attack on your right to a jury trial via Arbitration Clauses.  These arbitration clauses are buried in the onboarding documents employees are required to sign when they are getting hired for a job.  Many times they are not given the opportunity to review these documents.  In others, the document is just written in legalese, and even if read, the employee would not understand what he or she is signing off on, or what rights they are waiving. 

Generally, once an arbitration agreement is signed by the employee, he or she will be waiving the following rights: 

·         Right to File a Lawsuit

·         Right to a Trial by Jury

·         Right to Participate in a Class Action

·         Right to Appeal the arbitrator’s decision

·         Right to Free Access to Legal System

·         Right to Impartial Justice

Although the Texas Supreme Court has upheld these arbitration agreements waiving a Jury Trial, it held that “waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences. 

A lot of the arbitration agreements I have come across do not meet this standard.  That is why I am advocating for the citizens of Texas to take back their right to a jury trial.  Henceforth, I will contest every arbitration clause that falls short of this standard.  Employees must be made aware of the rights they are waiving in order to make an informed decision to enter such an agreement.  They also must be aware of the costs of the arbitration or who will be responsible for the costs. 

Article 1, Section 15 of the Bill of Rights of the Texas Constitution reads as follows:  

Sec. 15.  RIGHT OF TRIAL BY JURY.  The right of trial by jury shall remain inviolate.  The Legislature shall pass such laws as may be needed to regulate the same and to maintain its purity and efficiency.  Provided, that the Legislature may provide for the temporary commitment, for observation and/or treatment, of mentally ill persons not charged with a criminal offense, for a period of time not to exceed ninety (90) days, by order of the County Court without the necessity of a trial by jury. 

 

Although the Texas Legislature passed a statute making Arbitration Agreements valid, it came short of maintaining the purity and efficiency of the Right to a Jury Trial.

Another major issue that I see with Arbitration agreements is that a lot of them allocate the costs of arbitration equally between the Employer and Employee.  If the employee is a low-wage earner as most of them are, then the employee is basically been robbed of any recourse if they have been wronged, due to their inability to bear the high cost of arbitration.  In the legal system, they would at least be able to file a lawsuit in forma pauperis and demand a jury trial, at very little expense if any. 

The right to access the legal system "in forma pauperis" means that individuals who are unable to afford the costs associated with bringing a legal claim should not be prevented from doing so solely because of their financial situation. This right is protected by the Constitution and ensures that all individuals have access to the courts, regardless of their financial resources.

However, when employees sign an arbitration agreement, they are generally waiving their right to access the court system and agreeing to resolve any disputes through arbitration. This means that if an employee is unable to afford the costs associated with the arbitration, they may be effectively barred from pursuing their legal claims.

Additionally, the costs of arbitration can be significant and may include fees for the arbitrator, administrative fees, and other costs associated with the process. These costs can be prohibitive for many individuals, particularly low-income workers or those with limited financial resources.

Article 1 Section 13 of the Bill of Rights of The Texas Constitution reads as follows: 

Sec. 13.  EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT; OPEN COURTS; REMEDY BY DUE COURSE OF LAW.  Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.  All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.

In addition, the Texas Rules of Civil Procedure provide for a method by which indigent litigants prove their indigency by filing a “Statement of Inability to Afford Payment of Court Costs.”

In general, the right to access the legal system "in forma pauperis" is an important protection for individuals who may not have the means to pursue legal claims. When employees sign an arbitration agreement, they are generally waiving this right and agreeing to pursue their claims through arbitration, which can limit their ability to seek justice and hold employers accountable for any unlawful actions.

The third major issue we need to consider is that The Texas Constitution guarantees the right to appeal in certain circumstances. Article 5, Section 6 of the Texas Constitution establishes the appellate court system in Texas and provides for the right of appeal in cases where a party has been convicted of a crime or where there is a final judgment in a civil case. This section also provides for the creation of intermediate appellate courts and a supreme court to hear appeals from lower courts.

However, the right to appeal in the context of arbitration agreements is generally governed by the terms of the agreement itself. As mentioned earlier, when parties agree to resolve disputes through arbitration, they are generally waiving their right to appeal the decision of the arbitrator, and instead agreeing to abide by the final and binding decision of the arbitrator.

Therefore, while the Texas Constitution guarantees the right to appeal in certain contexts, this right may be limited or waived entirely in the context of arbitration agreements.

Lastly, and possibly the most important issue with arbitration agreements is Impartiality.  Impartiality is a crucial aspect of the legal system and refers to the quality of being unbiased and fair. Judges, arbitrators, and other legal professionals are expected to approach each case with an open mind, free from personal biases or preconceptions, and to make decisions based solely on the evidence and the law.

In the context of arbitration agreements, impartiality is particularly important, as the arbitrator is effectively serving as both judge and jury in the case. If the arbitrator is not impartial, or if there is the appearance of bias, it can undermine the integrity of the arbitration process and may lead to unfair outcomes.

One potential challenge to impartiality in the arbitration context is the fact that the employer is paying the fees associated with an arbitration proceeding and thus creates a conflict of interest. Because the employer is effectively funding the arbitration process, the arbitrator may be inclined to rule in favor of the employer in order to maintain their business relationship with the employer.

In contrast, judges in the court system are paid by the state, and their salaries are not directly tied to the outcome of individual cases. This helps to ensure that judges are able to make impartial decisions based solely on the facts and the law, without being influenced by financial considerations.

In contrast, the fact that employers pay the arbitrators directly creates a conflict of interest that cannot be remedied.  This is one of the reasons why some critics of arbitration argue that the process is inherently biased in favor of the employer and that it may be difficult for employees to obtain a fair outcome in an arbitration proceeding.

Overall, ensuring impartiality in the arbitration context is critical to ensuring that the process is fair and just for all parties involved, and this cannot be done when employers are paying the arbitrators. 

 

 


Saturday, February 4, 2023

Employment Law: Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a federal law that was enacted in 1990 to protect the rights of individuals with disabilities. The purpose of the ADA is to provide equal opportunities and protections for individuals with disabilities in all aspects of life, including the workplace. It is important for employees to understand their rights under the ADA and how it affects them.

Here are some of the key provisions of the ADA that employees should be aware of:

  1. Employers are prohibited from discriminating against individuals with disabilities in all aspects of employment, including hiring, promotion, termination, and any other employment decisions.

  2. Employers must provide reasonable accommodations to individuals with disabilities, such as modifying work schedules or providing assistive technology, unless doing so would impose an undue hardship on the employer.

  3. The ADA requires employers to provide an accessible workplace and make reasonable modifications to policies, practices, and procedures in order to allow employees with disabilities to perform their job duties.

  4. The ADA applies to employers with 15 or more employees and prohibits retaliation against employees who assert their rights under the ADA.

  5. Employees with disabilities have the right to request reasonable accommodations from their employer, and employers are required to engage in an interactive process with the employee to determine the appropriate accommodation.

It is important for employees to understand that the ADA provides them with a number of protections and rights, and that they should not hesitate to ask their employer for reasonable accommodations if they need them. Additionally, employees should be aware that they have the right to file a complaint with the Equal Employment Opportunity Commission (EEOC) if they believe that their rights under the ADA have been violated.

In conclusion, the ADA is an important law that provides protections and rights for individuals with disabilities in the workplace. By understanding their rights under the ADA, employees can ensure that they are able to work in an environment that is free from discrimination and provides equal opportunities for all.


Thursday, January 19, 2023

Employment Law: NEW LAW regarding Pregnancy Discrimination

Pregnancy Discrimination in the workplace is a serious issue that affects many women in the United States.  Despite laws that prohibit discrimination on the basis of pregnancy, many employers continue to discriminate against pregnant women, either by not hiring them or by not accommodating them when needed. 

Title VII of the Civil Rights Act of 1964 is the principal federal statute prohibiting employment discrimination on the basis of pregnancy.  The Pregnancy Discrimination Act (PDA) of 1978 amended Title VII and prohibited employers from discriminating against women because of their pregnancy, childbirth, or related medical conditions.  However, it did not require employers to provide accommodations for pregnant women, such as light duty or flexible schedules. 

Effective June 27, 2023, the Pregnant Workers Fairness Act (PWFA) will require employers with 15 or more workers to grant temporary and reasonable accommodations for pregnant job applicants and employees, such as light duty or other arrangements.  The PWFA also prohibits employers from discriminating against a job candidate or employee because of their need for pregnancy-related accommodations. 

The PUMP Act, Providing Urgent Maternal Protections for Nursing Mothers Act, amends the FLSA and expands the workplace protections for employees with a need to express breast milk.  This law is in effect as of December 29, 2022.  Specifically, it expands the requirement that employers provide certain accommodations for such an employee to cover salaried employees and other types of workers.  Time spent to express breast milk must be considered hours worked if the employee is also working. the new law also extends from one year to two years the available time period for such accommodations. 

It is important that you consult with an attorney as soon as you experience any discrimination regarding these issues because employment law is riddled with deadlines and pitfalls to keep your claims out of court and away from a jury.  ALSO, DO NOT SIGN ANY ARBITRATION AGREEMENTS OR CLAUSES, or you might as well waive all your rights away.  

If you think you or your loved ones have been discriminated against or retaliated against due to pregnancy, have them call BIG DAN.  



Wednesday, August 17, 2022

Employment Law: Discrimination based on Military Service is prohibited

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is the primary federal statute prohibiting employment discrimination based on past, present, or prospective military service. In addition to its anti-discrimination provision, USERRA requires employers to reemploy those who have taken military leave under designated services and governs employee benefit plans for employees on military leave.

All US public and private employers are covered under USERRA.  No employer too big or too small escapes the purview of this statute.  

The statute prohibits discrimination in Initial
Employment (hiring stage), Reemployment, Retention, Promotion, Benefits, and other Terms and Conditions of Employment. 

Individuals who believe their USERRA rights have been violated may file a lawsuit against their employer to assert their rights. For lawsuits against private employers, the individual may file the lawsuit in the appropriate US district court.  There is no requirement that plaintiffs exhaust administrative remedies before filing suit.

Individuals may seek monetary damages for lost wages and benefits, liquidated damages in the amount equal to lost wages and benefits, as well as equitable relief such as reinstatement. 

There is no statute of limitations for USERRA administrative complaints or lawsuits for claims that accrue after October 10, 2008.  The statute of limitations for pre-2008 claims is tolled during the period of a servicemember's military service.

If you believe you have been discriminated against based on your past, present, or prospective military service, don't hesitate to give Big Dan a call for a Free consultation. 

Thursday, June 9, 2022

Employee Polygraph Protection Act aka “lie detector test”

Under the federal Employee Polygraph Protection Act, private employers* are not allowed to directly, or indirectly, require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test.

And if the employee refuses the test, the Employer is also prohibited from terminating, disciplining, discriminating, or even threaten to do us, against employees for refusing or failing the test.

Any employer who violates this act is liable to the employee in a private civil action.

There are exemptions to this Act, however.  If you are an employee of the Federal, State, or local government, then this does not apply to your employment, as government agencies are exempt.

The only time a private employer who is subject to this Act is allowed to administer a polygraph test, is when:

1.      there is there is a workplace incident that resulted in economic loss to the employer and the employee had access to the property that is the subject of the investigation; or

2.      prospective employees of armored car, security alarm, and security guard firms; or

3.      prospective employees of pharmaceutical

Otherwise, civil actions may be brought by an employee or prospective employee in Federal or State court against employers who violate the Act for legal or equitable relief, such as employment reinstatement, promotion, and payment of lost wages and benefits, attorneys fees, and reasonable costs.  The action must be brought within 3 years of the date of the alleged violation.  Visit us at www.thevargaslawoffice.com.