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. 

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.

Texas Expanded protections for Employees in regards to Sexual Harassment Claims

Two new laws passed by Texas Legislature taking effect as of September 1, 2021 will change Sexual Harassment Claims in the State of Texas.  These changes brought more protection to employees whom may be the victim of sexual harassment in the workplace   

Expanded Definition of "Employer"

Under Senate Bill 45, which Governor Greg Abbott signed on May 30, 2021, the Texas legislature added Section 21.141 to the Labor Code, and now state law defines an “employer” as “a person who: (A) employs one or more employees, or (B) acts directly in the interests of an employer in relation to an employee.” As a result of the expansion of the definition of employer to include those who act “directly in the interests of an employer in relation to an employee”  give rise to supervisors, coworkers, or other individuals associated with employers may be named as individual defendants in complaints of sexual harassment. The expansion of the definition of an “employer” will likely lead to an increased number of claims and suits against employers.

New Statute of Limitations

House Bill 21, which Governor Abbott signed on June 9, 2021, amended Section 21.201(g) of the Labor Code to expand the statute of limitations for making claims of sexual harassment from 180 days to 300 days from the date of the alleged sexual harassment. The additional time for filing claims provided by this amendment, which is also effective September 1, 2021, applies to sexual harassment claims only and does not affect the 180-day requirement for filing other discrimination claims.

Heightened Responsibility for Employers Responses

Senate  Bill 45, also created a new standard by which employers will be held liable for sexual harassment claims.  The statute now makes employer liable if sexual harassment of an employee occurs and the employer or the employer's agents or supervisors: 1.  know or should have known that the conduct constituting sexual harassment was occurring; and 2. fail to take immediate and appropriate corrective action. 

Definition of Sexual Harassment 

Lastly, in case you were wondering by now, how exactly is sexual harassment defined, the new statute reads as follows: 

Sexual harassment" means an unwelcome sexual advance, a request for a sexual favor, or any other verbal or physical conduct of a sexual nature if:  (A)  submission to the advance, request, or conduct is made a term or condition of an individual's employment, either explicitly or implicitly; OR (B)  submission to or rejection of the advance, request, or conduct by an individual is used as the basis for a decision affecting the individual's employment; OR (C)  the advance, request, or conduct has the purpose or effect of unreasonably interfering with an individual's work performance; or (D)  the advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment.
If you or your loved ones believe that you have been the victim of Sexual Harassment in the workplace, please dont hesitate to call The Vargas Law Office. 

Employment Law: Taking time off from work to go Vote

With the first day of Early Voting on February 14, 2022 and extending through February 25, 2022, I thought it would be a good idea to let people know that they need to talk with their employer about allowing them to go vote. 

In the State of Texas, Employers must permit their employee's absence from work for the purpose of voting, and pay them for that time. 

This right to be absent from work to vote extends throughout the Early Voting period as well as on Election Day (March 1, 2022).

The only exception is if the employee has two hours outside of their work schedule to go vote while the polls are still open.  Unless the employee already has two consecutive nonworking hours while the polls are open, your employer must allow you to go vote and be paid for that time.

Although the statute doesn’t not specify the length of time or designate the hours that you can take to go vote, you must be allowed to take as much time is necessary to vote.  It is always better that there be clear and open communication between employee and employer regarding the absence to vote.   

An Employer's violation of this provision of the Texas Elections Code is a Class C Misdemeanor Criminal Offense.

If your employer retaliates against you for exercising your right to vote, by either docking your pay, terminating your employment or any other detrimental act, you may have a case of wrongful termination for retaliation.

This law can be found in the Texas Elections Code Chapter 276.