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Whitehurst & Whitehurst

Whitehurst & WhitehurstWhitehurst & WhitehurstWhitehurst & Whitehurst

ATTORNEYS AT LAW

ATTORNEYS AT LAWATTORNEYS AT LAW

EQUAL OPPORTUNITY COMMISSION

COVERAGE, CHARGE OF DISCRIMINATION, & TIME RESTRICTIONS

The EEOC is a federal agency that administers and enforces civil rights laws against workplace discrimination. These laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. A charge of discrimination must be sent to the EEOC before a lawsuit can be filed.  


Title VII of the Civil Rights Act of 1964 - (Title VII)
Title VII makes it illegal to discriminate against a job applicant or an employee because of the person's race, gender, religion, or national origin. This law was later amended to specifically include: color, sex (including pregnancy, gender identity, and sexual orientation), age (40 or older), disability or genetic information.


It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.


Pregnancy Discrimination Act of 1978
It is illegal to discriminate against a woman because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth.

The Equal Pay Act of 1963 - (EPA)
It is illegal to pay different wages to men and women, if they perform equal work in the same workplace. 


Title I of the Americans with Disabilities Act of 1990 - (ADA)
The ADA makes it illegal to discriminate against a qualified person with a disability in the private sector as well as in state and local governments. 


Employers are also required to reasonably accommodate the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless doing so would impose an undue hardship on the operation of the employer's business.


Statute of Limitations for filing an initial claim with the EEOC:

Both Federal and State laws have certain time limits involved in making an initial charge of discrimination:


Caution:   EEOC time limitations will not be stayed (extended) while an employee  attempts to resolve a dispute through internal company or union grievance procedures, arbitration, or mediation. It is best to file a charge with the EEOC as soon as possible.


Statute of limitations for filing a lawsuit:
An employee has SET time limits in which to file a lawsuit after the receipt of the "Notice of Right to Sue."  This deadline is set by law.  Excuses are  rarely accepted.  


**PLEASE CONTACT OUR OFFICE TO DISCUSS THESE TIME LIMITS. **

  

If you don't file in time, you may be prevented from going forward with your lawsuit.

NON EEOC RELATED COMPLAINTS

The Family and Medical Leave Act (FMLA)

Certain employers must provide qualified employees with temporary, unpaid leave for medical reasons, for the birth or adoption of a child, or for the care of a child, spouse or parent who has a serious health condition.


Certain employers must grant up to 12  weeks of leave during a 12-month period to eligible employees who need time off because of a "serious health condition" that they or someone in their family is experiencing.


Note:  this law can overlap with both the Title VII requirements concerning  leaves of absence for pregnancy and pregnancy-related conditions and for some ADA related accommodations for an employee with a disability.

The Fair Labor Standards Act (FLSA); 29 U.S.C. 201, et seq.

  • Establishes minimum wages, overtime pay, record keeping, and child labor standards for private sector and government workers.  
  • Penalizes employers who fail to make proper overtime payments by ensuring that the employers are liable for the unpaid overtime compensation. 29 U.S.C. § 216(b). 
  • Sets damages at an amount equal to the pay employees should have received.  
  • Identifies the differences between Exempt (Salary) and Non Exempt (Hourly) employees. 

Overtime: Exempt vs. Non Exempt

The Fair Labor Standards Act (FLSA) sets the rules and standards concerning overtime.  Most jobs are covered under the FLSA, however, some jobs are excluded or "exempt" from the FLSA overtime rules.


To be exempt (with few exception) an employee must meet all three of the following tests:
1.  Salary level test.

must be paid at least $23,600 per year ($455 per week);
2.  Salary basis test
should be paid on a salary basis; and,
3.  Duties test
There are three typical categories of exempt job duties, called "executive," "professional," and "administrative."
a. EXECUTIVE
   * regularly supervises two or more other employees; 

    * has management as the primary duty of the position; and,
   * makes decisions concerning the job status of other employees (such        as hiring, firing, promotions, or assignments).
b. PROFESSIONAL
Usually requires an advance degree and are considered  "learned professions.” Examples are:  lawyers, doctors, dentists, teachers, architects, clergy, registered nurses (not LPNs), accountants (not bookkeepers), certain engineers, actuaries, certain scientists, and pharmacists.

c. ADMINISTRATIVE
  * Relatively high-level employees whose main job is to "keep the business running."
  * Considered as "staff" rather than "line" employees.
Examples of administrative functions include human resource/personnel, payroll and finance, records maintenance, accounting and tax, marketing and advertising, quality control, public relations, legal and regulatory compliance, and some computer-related jobs.

There are notable exclusions from the FSLA:  

   * employees of seasonal amusement or recreational establishments; 

   * outside sales;and,

   * certain computer related jobs.  


Generally, if a job is governed by some other federal labor law, the FLSA does not apply. 

   * certain commissioned employees of retail or service establishments;

   * employees of railroads, airlines, taxi drivers, and certain local        delivery employees;

   * Domestic service workers living in the employer’s residence;

   * Employees of motion picture theaters; 

   * Farmworkers

   * truck drivers; and, 

   * Federal Civil Servants)  See §213, of the FLSA.


PLEASE CONTACT OUR OFFICE TO DISCUSS THE PROPER CLASSIFICATION OF YOUR JOB.


Workers Compensation Law; Texas Labor Code §451.001 - (previously Article 8307)

Prohibits private employers from discriminating against or discharging an employee who has:  

  • filed a workers’ compensation claim in good faith;  
  • hired a lawyer to represent the employee in a claim;  
  • instituted or caused to be instituted in good faith a proceeding (under the Texas Workers’ Compensation Act); or,  
  • testified or is about to testify in a proceeding under this Act.

 

Consumer Protection

Texas Lemon Law

Texas Rev. Civ. Stat. Ann.; Title 14, §§ 2301.001 et seq. 

Generally, in Texas a consumer who has purchased or leased a new car, truck, motorcycle, motor home, or all-terrain vehicle can find relief if the vehicle develops problems that are covered by a manufacturer's written warranty.  The defects or conditions must substantially impair the use, market value, or safety of the vehicle.

  

Before filing a formal complaint (Form ENF-140), the owner must allow the manufacturer a reasonable opportunity to repair the defect or defects. There are three (3) tests, which help determine the number of reasonable attempts to repair the defect(s):
 

The Four Times Test
Take in four (4) times for the same defect(s) within the first two years or 24,000 miles, whichever comes first; and the problem continues to exist;


The Serious Safety Hazard Test  

Take in two (2) or more times for the repair of a serious safety hazard or  life-threatening malfunction, within the first two years or 24,000 miles, whichever comes first, and the problem continues to exist; or,

The 30 Day Test

Take in for a total of 30 or more days during the first 24 months or 24,000 miles for repair due to a defect or defects that are covered by the warranty and the problems persist. Also, no comparable loaner vehicle was provided by the manufacturer or dealership.


PLEASE CONTACT US CONCERNING THESE TIME LIMITATIONS!

​Texas Deceptive Trade Practices Consumer Protection Act (DTPA)

 

Business & Commerce Code; Section 17.41 et seq.

  1. Consumers are protected against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty.
  2. Consumers are provided with efficient and economical procedures to secure such protection.

Before filing a law suit, a consumer is required to give WRITTEN NOTICE to the seller by sending a registered or certified letter. This letter must inform the seller of what is wrong, provide reasonable details of the specific complaint, and specify the amount of damages. The seller must respond within 60 days of receiving the letter.


Additional Damages may be awarded if a court finds that the conduct of the seller was committed "knowingly" or "intentionally."


TIME LIMITATIONS: DTPA lawsuits must be filed within two (2) years of either:     

  1. the date on which the false, misleading, or deceptive act or practice occurred; or,     
  2. the date the consumer discovered the existence of the false, misleading, or deceptive act or practice.   

 

PLEASE CONTACT OUR OFFICE CONCERNING THESE TIME LIMITATIONS!

Alternate Dispute Resolution (ADR)

Alternate Dispute Resolution (ADR)

Alternate Dispute Resolution (ADR)

An alternative to having a court (judge or  jury) resolve disputes concerning issues involved in complaints, contracts, and, lawsuits. An independent mediator conducts the meeting. This process is generally less formal, more flexible, and non-binding  are rules than the trial court.

Arbitration
A private process in which a neutral arbitrator is given the authority to make a decision concerning a dispute. The process is similar to a trial in that the parties make opening statements and present evidence to an arbitrator. The dispute is resolved more quickly and is less formal.

At the conclusion, the arbitrator’s makes a determination.  

Binding arbitration: the decision is final, and it can be enforced by a court, and can only be appealed on very narrow grounds.
Nonbinding arbitration: the determination is advisory, although it can be final if it is accepted by the parties.  

 


Mediation

Alternate Dispute Resolution (ADR)

Alternate Dispute Resolution (ADR)

 A private nonbinding process where a neutral mediator endeavors to resolve a legal dispute out of court.  Typically, a mediator will meet with each party and their respective attorneys separately.  At this time, the parties have the opportunity to present their positions, make their legal arguments, discuss their  evidence, and explain their ultimate goals for the dispute. The mediator generally listens to both parties and often makes suggestions concerning possible compromises or settlements. The mediator does not  have the power to make a decision for the parties.  However, if the parties reach an agreement, the mediator may help reduce the agreement  to a written contract, which may be enforceable in court. (Note that some mediators utilize alternative methods.)
 


Covenants Not to Compete

Alternate Dispute Resolution (ADR)

Covenants Not to Compete

 Covenants Not to Compete (Non-competition agreements)  Generally, in order to be enforceable:  

  1. the employee must receive something of value in exchange for the promise not to compete;  
  2. the clause must protect a legitimate business interest of the employer; and,  
  3. the clause must be reasonable in scope, geography; and, time. 

This material is provided for general informational purposes and is not, nor is it intended to be legal advice. Please consult with legal counsel. You should consult an attorney for individual advice regarding your specific situation. 

 

Failure to act in a timely manner may result in the waiving of valuable legal rights. 

 

 Call for an appointment at

 903-593-5588,
 email whitehurstlawfirm@yahoo.com,

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