Although it was not declared a national holiday until 1894, Labor Day was recognized by labor activists and individual states near the end of the 19th century. The first Labor Day celebration occurred on September 5, 1882, in New York City under the direction of the Central Labor Union. 10,000 workers participated in the event, forging the path for the American people to demand fair pay, reasonable working hours, and safe working conditions.
Labor Day celebrates the American worker, the foundation of this country’s strength, freedom, and leadership. Millions of workers and their families enjoy a day of parades, picnics, and parties.
The Labor Movement Began in Bloodshed
The labor movement began in the streets of Chicago over a hundred years ago and continues mostly in the corridors of the Capitol Building in Washington.
On May 4, 1886, as drizzling rain fell, around 1,500 workers gathered in Chicago’s Haymarket Square to hear speeches and press for an eight-hour workday. Late in the evening, labor activist Rev. Samuel Fielden gave a speech that was either boring or inflammatory, depending on who you listen to.
When a police inspector ordered the crowd to disperse, someone threw a homemade bomb in the direction of police officers. A gun battle erupted. When the smoke cleared, eleven people died, and about seventy more were injured. According to reports, many of the injured were police officers who “emptied their revolvers, mainly into each other.”
In the aftermath, a court convicted eight people of conspiracy. Only two of them were in Haymarket Square at the time. Four were hanged, and one committed suicide. In 1893, Illinois Gov. John Peter Altgeld criticized the trial and pardoned the remaining three defendants.
While sporadic labor violence continued, no future incident matched the bloodshed that day. At Williams Hart & Boundas, we think it’s important on this day not only to honor the sacrifice of those early trailblazers but also to review the progress that’s been made since then.
Workers’ Compensation
A few years after the Haymarket Square Massacre, many states, including Texas, began passing workers’ compensation laws. Many worksites were extremely dangerous in the early 1900s. Job injury lawsuits clogged the courts, delaying compensation to injured victims and costing employers a lot of money.
In the so-called Grand Bargain between labor and management, workers gave up their right to sue over their injuries in court, and employers agreed to fund a no-fault insurance system. These benefits usually include lost wage replacement and medical bill payment.
Generally, workers’ compensation in Texas pays two-thirds of a victim’s Average Weekly Wage for the duration of a temporary disability. This benefit seems straightforward, but complications often arise.
These complications usually hinge on AWW calculation. Most insurance adjusters take the last six or eight pay stubs and divide the take-home pay by six or eight. However, the AWW also includes items like per diem and expense reimbursement.
Additionally, the AWW is also forward-looking. If Mario is scheduled to get a raise in three weeks, his wage replacement must account for the pay increase. On a similar note, if Mario’s injury causes him to miss overtime opportunities or performance bonuses, the calculation must reflect these things.
The medical bill payment benefit in Houston, which once again seems simple, is likewise often controversial.
As most know, insurance adjusters often only approve the least costly remedy. Our Houston workers’ compensation lawyers fight to ensure that injured workers receive the best possible treatment, regardless of the cost.
Special rules apply in many situations. For example, injured offshore workers are often eligible for compensation under the Jones Act or the Death on the High Seas Act.
Additionally, some employers don’t have workers’ compensation insurance. Texas law, unlike the law in most other states, doesn’t include a mandatory insurance requirement. Therefore, these injured victims may normally file damage claims in civil court. Since the law also forbids uninsured employers from using some of the most effective defenses, it’s easier to prove negligence or a lack of care.
Fair Labor Standards Act
Many Haymarket Square participants didn’t live to see the Fair Labor Standards Act of 1938. This sweeping law not only established a forty-hour workweek. It also guaranteed time-and-a-half for overtime, set a minimum wage, and sharply limited child labor.
Alabama Senator Hugo Black, who later served on the Supreme Court, introduced the FLSA in 1932. Congress debated its controversial provisions for six years. One of the most controversial ones, which Black and his allies later dropped, was a thirty-hour workweek.
The overtime provision remains controversial to this day. The 1938 FLSA stated that certain employees were ineligible for overtime pay. Specific rules have changed over the years. Common pay disputes include:
- Truck Drivers: These rules vary in different jurisdictions. Generally, truckers are exempt if they drive a vehicle that weighs more than 10,000 pounds, operate a vehicle that can carry more than nine passengers, or haul hazardous materials. Most large commercial vehicle operators fit into one or more of these categories.
- Domestic Workers: Maids, cooks, house cleaners, and other domestic workers are eligible for overtime if they don’t live in the house, hotel, or other space they care for, and they are not “personal attendants,” a rather vague designation.
- Union Members: The Collective Bargaining Agreement usually determines overtime eligibility. Generally, if these workers receive a premium wage, which is anything above the regular wage, and the minimum wage at that job site is at least 30 percent higher than the state’s minimum wage, union workers usually aren’t entitled to overtime.
- Executive/Managerial Employees: If you make at least twice the minimum wage and spend more than half your time performing manager responsibilities, can make independent decisions without direct supervision, oversee more than two employees, and have meaningful input into hiring/firing decisions, you aren’t eligible for overtime.
- Professionals: This overtime exemption is very specific. It applies to optometrists but not optometrist assistants, lawyers (and maybe law school graduates) but not paralegals, dentists but not dental hygienists, doctors but not nurses, and so on. In any event, the exemption only applies if the employee makes twice the minimum wage.
Other overtime exemptions include computer professionals, commissioned salespeople, seasonal employees, and employees who work in family businesses.
Civil Rights Act
Title VII of this landmark 1964 law states that employers may not “refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to his/her compensation, terms, condition, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” That’s quite a mouthful, so let’s break it down.
Pay discrimination applies at both the low end and the high end. Employers cannot automatically stick lower-paid employees into shabby cubicles or give them used equipment. Additionally, employers cannot fire higher-paid employees, who are usually older and more experienced and replace them with less-expensive employees, who are usually younger and less experienced. These prohibitions often involve age discrimination. More on that is below.
Gender, ethnicity, national origin, and other such discrimination usually come in two forms. Both of them are illegal.
Disparate treatment discrimination is direct discrimination. In a nutshell, disparate treatment is treating people differently because they are different. This disparate treatment need not be malicious. Pregnancy discrimination is a good example.
Some manufacturing companies automatically transfer pregnant employees into jobs that don’t involve hazardous chemicals or challenging physical conditions. Not coincidentally, these jobs are usually lower paying. The transfer might well be in the best interests of the mother’s health. But the transfer decision belongs to the mother, not to the boss.
Disparate impact discrimination is indirect discrimination. Some bosses have rules which disproportionately affect certain groups. Once again, the rule might not be malicious. But it’s still illegal.
Head coverings are a good example. Many worksites have policies that forbid hats, caps, and other head coverings. This prohibition often runs afoul of religious principles. In 2015’s Equal Employment Opportunity Commission vs. Abercrombie & Fitch, an A&F store refused to let a Muslim woman wear a hijab. The Supremes ruled that the store’s policy violated the Civil Rights Act even though it wasn’t directly discriminatory.
Age Discrimination in Employment Act
Usually, courts define labor laws in broad, employee-friendly terms. Unfortunately, that’s not the case regarding age discrimination. Age bias is illegal under the Civil Rights Act and the 1967 Age Discrimination in Employment Act if the employee is over 40. But, these cases are difficult to prove.
As mentioned, age-related discharge decisions are quite common. Older employees are often the first to go when a company downsizes. These workers earn more money and are frequently more expensive to insure because they often have pre-existing health conditions.
Generally, Civil Rights Act discrimination claimants must only prove that unlawful discrimination (gender, ethnicity, and so on) contributed to the employer’s hiring, firing, promotion, demotion, or other high-level decisions.
However, age discrimination plaintiffs mosy prove that age discrimination was the primary factor in the decision.
Evidence on this point could be circumstantial. For example, if 31-year-old Rachel replaces 41-year-old Mary, Mary could have an age discrimination case.
A prima facie case isn’t enough. Mary’s boss has a chance to prove that her firing had a nondiscriminatory basis. Almost anything, such as a one-off negative performance review or coming in at 8:01 instead of 8:00, could refute the plaintiff’s case.
So, a smoking gun, like an email that states or strongly implies that older workers should be replaced, is usually better. Houston workers’ rights attorneys usually uncover such smoking guns, if they exist, during discovery. Defendants will try to hide such evidence as long as they can.
Occupational Safety and Health Act
On paper, this 1970 law may be broader and more sweeping than any other labor law Congress has passed. In practice, however, things are a bit different.
The Occupational Safety and Health Administration, one of the smallest federal agencies, has about 1,800 inspectors to oversee about eight million workers. That translates to about one inspector for every 70,000 workers. When inspectors issue citations, they’re usually in one of the following areas:
- Construction Site Fall Protection: A fall from a height is the most common fatal construction injury. It’s also the easiest one to prevent. Proper safety equipment, and proper training in this area, are all it takes.
- Respiratory Protection: These violations have reached the top of the list since the coronavirus pandemic struck in 2020. Additionally, flimsy paper masks usually aren’t enough to protect workers from toxic substances.
- Ladders: Loose rungs and improper grounding are the most common ladder safety violations. Many ladder runs must hold so much weight that any weakness could cause a fall. Furthermore, workers cannot just set up ladders and climb them. They must be properly grounded.
- Hazard Communication: A simple verbal warning usually isn’t enough to properly convey the danger, especially at busy construction sites with many LEP (limited English proficiency) workers.
- Unsafe Scaffolding: Many employers use scaffolds to help the work get done on time. However, scaffolds are also important safety measures. They’re usually the first line of defense against falls.
If the employer received multiple safety violations, especially for the same thing, before a workplace injury, the victim might be able to file a claim in civil court and obtain additional compensation for noneconomic losses, such as pain and suffering.
Family Medical Leave Act
Texas employees love the 1993 Family Medical Leave Act, and their employers despise it. Employers love to talk about work-life balance in recruiting campaigns. The FMLA helps ensure that they actually provide it.
Eligible employees may take up to twelve months of leave during any twelve-month period to care for a seriously ill family member, recover from their own serious illness or injury, or care for a newborn or adopted child. This leave could be intermittent. Employees don’t have to take FMLA to leave in set blocks. The aforementioned eligibility requirements include at least 1,250 hours worked over the past twelve months (about twenty-five hours a week). Their employer must have at least fifty workers within a 75-mile radius.
Employees must give thirty days’ notice before taking unpaid leave if possible. Their benefits must remain in effect while they’re away. Additionally, when they come back, they must get their old jobs back, or a substantially similar one, in terms of pay, seniority, etc.
Employers have rights as well. They may demand verification of the illness, injury, or other events. In some cases, they may ask for repeated verification.
Even after their FMLA leave expires, other federal laws, such as the Civil Rights Act, still offer some protection. However, as outlined above, these cases are sometimes difficult to prove in court. FMLA matters are much more straightforward.
For more information about your rights as a worker or as an injury victim, contact Williams, Hart & Boundas LLP.