Austin Employment Law Blog

Legislation aims to put a stop to pay discrimination

There are many statutes that make it illegal to pay workers differently based on their gender. The Equal Pay Act of 1963 was a federal law and the first attempt to close the wage gap between men and women doing similar work. Title VII, passed in 1964, was also designed to create greater equity between genders when it came to promotions and other employment decisions. The EPA was an amendment to the Fair Labor Standards Act.

All employers are covered under the EPA whether they work for a government agency or in the private sector. However, it doesn't mean that it is illegal for a man and a woman to be paid a different wage for performing substantially similar work. For instance, an employer could create a seniority system or base pay on a worker's quality of work over a given period of time.

Paying employees overtime for on-call work

Some Texas employees who work on-call shifts may be eligible for overtime pay. As evidenced by a court case in Ohio, however, there can be some confusion regarding when that overtime pay is required. The judge in that case found that a nurse who was on call throughout the weekend should have been paid overtime even though she didn't work the entire 48 hours that she was on call.

The nurse worked an on-call shift every other weekend. This was in addition to her usual work week. She was paid her regular rate for the on-call time, but she argued that she should have been given overtime. The hospital argued that since the nurse was not working for the entire 48 hours, this was not warranted. The court disagreed. First, it argued that it was compensable time since the hospital paid her the regular rate.

Employment law considerations when the clocks turn back

In Texas and most other American states, the clock was turned back one hour at 2 a.m. on Nov. 4. However, employers may have questions about how to treat this hour in terms of paying their employees. For instance, employers may wonder if they have to pay workers twice for the hour between 1 a.m and 2 a.m. The answer depends on whether it represents an extra hour worked during a shift.

Conversely, employers may not be on the hook for one hour of work when the clocks go forward again in the spring. This could be true if a worker is on the clock when the time is adjusted from 2 a.m. to 3 a.m. In either scenario, employers may adjust a nonexempt employee's shift to avoid any confusion about how they are paid. When the clocks go back, an employee may be entitled to overtime if they are paid twice for the hour between 1 a.m. and 2 a.m.

Workplace mental health discrimination

Mental illness is a common cause of workplace burnout and absences in Texas. Across the United States, approximately one in five adults are affected by mental illness per year. Employees who are struggling with mental health problems can request a reasonable accommodation from their company's human resources department.

A reasonable accommodation is an alteration in a person's job schedule or activities in order to help him or her deal with a medical condition or disability. For example, an employee may request a reasonable accommodation for his or her work to be scheduled around therapy appointments or a quieter work environment.

3 examples of reasonable accommodations for disabled workers

As someone with a disability, you have the right to reasonable accommodations at your workplace. According to the Americans with Disabilities Act, employers must make adjustments or modifications to jobs or work environments to allow disabled people to work, as long as the changes do not cause significant expenses or difficulties for employers. 

But what changes count as reasonable accommodations? This may depend on the specific job or workplace, but here are some examples of reasonable accommodations for disabled workers.

Rights of employees under FMLA

Employees in Texas should be aware of their rights under the Family and Medical Leave Act. The underpinning of FMLA is that it is supposed to help preserve family stability, which in turns makes for a more stable and productive employment situation.

Employees are eligible for FMLA leave if they work at a company that has a minimum of 50 employees in a 75-mile radius and if they have been at the job full time for one year. FMLA leave can be taken for the adoption or birth of a child, for an employee's own serious medical issues or for the serious medical issues of a close family member. It may be a physical or mental issue. FMLA leave lasts for up to 12 weeks, but it does not have to be consecutive, and in some cases, a person's physician may have them take intermittent leave.

Age discrimination prohibited by different law than other bases

Employers in Texas are prohibited from discriminating against workers on the basis of age by the Age Discrimination in Employment Act, but a survey by the American Association of Retired Persons found that almost 66 percent of respondents had experienced or seen age discrimination in the workplace. In the same survey, 92 percent of respondents said workplace discrimination based on age is somewhat or very common.

Age discrimination is similar in many ways to other forms of discrimination at work. It is detrimental to the employee and illegal. Discrimination based on race, religion, sex, color or national origin are prohibited by a different law though. A senior attorney advisor with the Equal Employment Opportunity Commission's Office of Legal Counsel said that it can be difficult to bring intersectional claims because these bases of discrimination are covered by Title VII of the Civil Rights Act of 1964 and age discrimination is covered by the ADEA.

Tips for dealing with subtle workplace discrimination

Some Texas employees might be well-acquainted with what constitutes overt workplace harassment and discrimination but may not know what to do about more subtle forms. Actions such as looking at a minority employee whenever someone mentions race, staring at a pregnant woman's stomach, or refusing to make eye contact may all feel like they could be discriminatory actions, but it may be difficult to document or report them.

Such actions present challenges for both human resources departments and employees. It is important for human resources departments to make employees feel they can communicate even about minor incidents. Human resources professionals then must judge whether the issue is a person's work style or actual bias. For example, some people might not make eye contact with anyone in the office as part of their regular work style. Human resources professionals might also consider how they integrate information on these more subtle forms of discrimination into their training. This can include training on unconscious bias.

How common is workplace age discrimination?

All workers deserve to be treated fairly. Unfortunately, reality sometimes doesn’t reflect this. Workers are sometimes subjected to unjust treatment due to certain personal characteristics. This could include their age.

Age discrimination against older workers can take many forms. Examples include:

  • An employer refusing to hire or promote a worker in part because of age
  • Age being a factor in an employer’s decision to fire or take other negative actions against an older worker
  • A person facing harassment at work because of his or her age

Understanding your maternity leave rights

As an employed mom-to-be in Texas, you likely look forward to taking a maternity leave to welcome your new baby and get to know him or her. If you assume, however, that your employer will pay you your regular salary or wages while you are on maternity leave, you may want to think again. No Texas law mandates a paid maternity or parental leave; therefore, be sure to check with your company’s human resources department early in your pregnancy to determine what, if any, paid maternity leave policies your company has.

It is true that both federal and Texas laws forbid your employer to discriminate against you while you are pregnant. These laws, however, go more to your company’s treatment of you during your pregnancy rather than to a maternity leave itself. In many respects, these laws treat your pregnancy as a disability, with the same rules applying to you as to any other medically disabled employee.

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