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Houston Employment Law Blog

DOL adds flexibility to rules governing unpaid internships

The Department of Labor has updated its guidance for unpaid internships. The new approach grants employers at for-profit companies in Texas more flexibility. Previous rules established by the department in 2010 insisted that an employer had to meet all six requirements to avoid paying minimum wage or overtime. The new test includes seven points of consideration meant to determine whether the arrangement benefits the intern's education or actually benefits the employer.

Labor regulations still clearly require that an unpaid internship must benefit the intern more than an employer. An unpaid internship that meets this standard should not displace a paid employee or interfere with the intern's academic schedule. Additionally, the relationship must make clear to the intern that the position does not involve compensation. The intern's duties should also add to their educational experience and result in course credit.

The links between sexual harassment and lower pay

Everyone in Texas faces challenges at work from time to time, but women predominantly experience sexual harassment that can reduce how much they earn. According to the Equal Employment Opportunity Commission, power disparities in the workplace could encourage harassment. Unequal pay creates a power disparity, and sexual harassment sometimes causes victims to leave potentially lucrative careers or suffer the consequences of reduced job performance.

A study director from the Institute for Women's Policy Research described how sexual harassment lowers women's lifetime earnings. A phenomenon called occupational segregation places pressure on women to leave hostile industries and seek employment in female-dominated job sectors, where the pay tends to be less. She added that a victim might lose focus at work due to harassment. The perceived inability to meet the demands of the job could reinforce the cultural notion that women do not deserve pay equal to men.

Migrant farm workers are often subjected to employer abuse

When you came to America, you did so with the hope of creating a better life for you and your family. Working on a farm is one of the most common ways for migrants to make a living and get a good start in our country. You and other farmworkers in Texas need to understand that, just like natural-born citizens, you have the right to fair and humane treatment by your employers. Unfortunately, the opposite is true for far too many migrant workers across the country.

According to the National Farm Worker Ministry, about six out of every 10 farm workers are undocumented foreigners, most from Mexico. This fact gives unscrupulous employers an opportunity unseen in nearly any other industry to inflict inhumane and unacceptable conditions on their workers. If you or your friends are undocumented, your employer might subject you to the following:

  • Being forced to work long hours in dangerous conditions, such as spending all day in the sun without water, shade or protective clothing
  • Receiving pay that is a fraction of the minimum wage, or not receiving payment at all despite promises
  • Threats of deportation or reporting to immigration authorities if employees speak out against injustices

FLSA says workers should be compensated for short breaks

A recent decision by the 3rd Circuit Court of Appeals may eventually have an impact on Texas employees. The court held that employees are entitled to be paid for breaks that are 20 minutes in duration or less. The case involved a company called Progressive Business Publications that had eliminated paid 15-minute breaks for employees in favor of a flex-time program. Employees were allowed to leave their workstations for any reason at any point during the day.

However, workers were not paid if they were away from their workstations for more than 90 seconds. The company argued that using the restroom or getting coffee was not considered work under the Fair Labor Standard Act (FLSA). The Department of Labor, which investigated Progressive from 2009 to 2011, informed the company that sales representatives needed to be paid for breaks of less than 20 minutes.

Targeted ads may be age discrimination

Texas residents seeking work through social media channels may have noticed companies advertising job openings on Facebook. However, these ads may have targeted Facebook users based on their age group. That may be a violation of employment laws designed to prevent age discrimination in the workplace. Companies such as Verizon and Target have used such ads to find workers, according to an investigation done by the New York Times and ProPublica.

It is believed that Verizon used targeted advertising to find financial planning job candidates between the ages of 25 and 36 among other criteria. Some believe that this in direct violation of the Age Discrimination in Employment Act of 1967. It is a federal statute that prevents discrimination of those aged 40 or older. However, according to a representative from Facebook, it is generally used as one part of a broader recruiting effort.

Envoy Air and American Airlines settle suit for $9.8 million

It is illegal for most Houston employers to discriminate against employees or applicants on the basis of their disabilities. When workers are disabled or become disabled, their employers must offer reasonable accommodations to them that allow them to do their jobs unless it would be unreasonably cost prohibitive. In November 2017, American Airlines and Envoy Air settled a lawsuit that was filed by the Equal Employment Opportunity Commission on behalf of hundreds of disabled workers for disability discrimination. The settlement consisted of nearly $10 million in stock.

According to the EEOC, the airlines failed to offer reasonable accommodations to its workers who became disabled and illegally required the workers to have no restrictions before they were allowed to come back to work.

Appeals court addresses issue of draw-on-commission pay

Companies in Texas that pay sales commissions should check their written policies regarding draw-on-commission pay. The U.S. Court of Appeals for the 6th Circuit has sided with employees in a case that challenged an employer's policy that required employees to repay draws made upon future commissions if they left their jobs.

Draw-on-commission pay describes the practice of paying commission-only sales staff from future week's commissions if their current earnings do not amount to minimum wage. In the case before the 6th Circuit, an appliance retailer had a written policy requiring employees who quit to repay any draws on commission advanced to them prior to quitting. A lower district court had sided with the company because the plaintiffs had not offered any evidence that anyone had actually been made to return compensation to the employer.

Report puts employers on notice regarding trans discrimination

Unfortunately, harassment and discrimination in the workplace are nothing new in Texas and across the nation. However, the U.S. Commission on Civil Rights wants employers to take a more active role in policing harassment and discrimination, especially when aimed at transgendered individuals. The Commission issued a report on workplace discrimination claiming that 90 percent of all transgendered employees in the United States have faced some form of workplace harassment or discrimination due to their status.

The report goes on to push for stronger regulations and legislation aimed at ending discrimination and harassment of transgendered individuals in the workplace. This call to action is based on the report's assertions that transgendered individuals often find themselves receiving lower wages and fewer promotions when compared to non-transgendered counterparts.

Workplace discrimination is common among Native Americans

Native Americans in Texas will likely find the recent complaints of one Pawnee Nation member familiar. In an interview, the man described the overt discrimination he experienced on the job as a bartender. For starters, his manager disliked his Mohawk haircut, a traditional style for his people. Instead of arguing, the man chose to cut his hair.

He then experienced negative treatment when he needed to take time off to recover from a broken ankle. Upon returning to his job duties, he said that a manager blamed his accident on drinking "firewater." This time the man lodged a complaint with his employer and gave two weeks notice.

Overtime exemptions in white-collar work

The general rule for most Texas workers is that hours worked over the regular 40-hour workweek entitle them to overtime compensation. The law exempts some types of workers from this rule and employers do not need to pay them overtime.

Both employers and employees can misunderstand overtime rules; some employers may even purposely take advantage of employees who do not know their rights. If you suspect you may have overtime owed to you and your employer is not paying you, speaking with an experienced attorney can be the first step in protecting your rights and livelihood.

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Warren & Siurek, L.L.P.
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Houston, TX 77098

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