Lawrence Morales has worked in the area of employment litigation and law since he got out of law school. He has defended employers but now spends most of his time standing up to workers whom were treated poorly in violation of the laws protecting workers. He came on the podcast to discuss the type of work that he does.
Justin Hill: Welcome to Hill Law Firm Cases, a podcast discussing real-world cases handled by Justin Hill and the Hill Law Firm. For confidentiality reasons, names and amounts of any settlements have been removed. However, the facts are real, and these are the cases we handle on a day-to-day basis.
All right. Welcome to this episode of Hill Law Firm Cases. I‘m with Lawrence Morales, who’s a local employment lawyer who I went to law school with.
Lawrence Morales: Hi, Justin.
Justin: We’ve done a Q&A series of local lawyers, what they do, why they’re into what they do. Lawrence and I have worked a handful of cases together. We have a couple of cases going on right now. I asked Lawrence to come on, talk about what he does, who he is. Then we’re also going to have a separate episode talking about some stuff we’re both going to get into together.
Lawrence, you are mostly an employment lawyer from the plaintiff’s side. At least you do other things, but from the plaintiff’s side, you do employment work. What is your interest in employment work? Why did you get into that? What’s your passion?
Lawrence: I’ve been doing labor employment now for about 15 years. My passion is really helping people navigate through this complicated scheme. Right or wrong, people identify themselves with what they do for work, and the realities that they spend more time at work than oftentimes they spend with their family. Sometimes there’s a disruption in that. Maybe something they caused or maybe something that they didn’t cause. When there’s that disruption, they need help. Fortunately, I’ve been able to do that. The other lawyers at my firm, including you, when you help us on certain cases, have been able to help people when there’s that type of disruption at work.
Justin: I’ve heard some of the politicians talk about the dignity of work, and I’ve always really appreciated that idea that our identity and our reason we get out of bed in the morning, is often tied to our professions. Is there anything in your backstory or your history that made you really have a passion for workers, or did you just get into it as a lawyer and realize this is something that really motivates me?
Lawrence: I think both. Some of my family, growing up, had bouts where they unfortunately didn’t have work. As a child, I saw the effect that that had on them. I recently read a study that the number one way to get depressed is to stop working. If you want to stay engaged, if you want to stay happy, if you want to live a longer life, frankly, don’t retire because the schedule, the purpose of going to work, interacting with people, those social interactions, is important. We’re there to help if there’s a problem with that.
Justin: We said that in our own household right now with what’s going on with COVID, just being stuck in your home really, it affects your mood. I’m sure for a lot of workers going to a work environment that is not friendly, or welcoming also starts to affect them. You and I have worked cases involving hostile work environment, situations or environments where workers are made to feel bad or made to feel unwelcomed due to things that are outside their control, race, sex, religious identity, other things like that. What are the types of cases you work on in the employment context?
Lawrence: Sure. Anytime there’s a dispute between an employee and an employer, we can get involved. On a typical week, we’ll get 50 calls from potential clients. The vast majority of those will be tied to terminations, people saying they were terminated for ‘unlawful or wrongful reasons’. Sometimes race, sometimes gender, more recently, sexual orientation, gender identity. On top of that, we have wage theft, when people aren’t paid properly for the hours that they work. There can also be violations of leave laws, like the Family Medical Leave Act, not giving people enough notice when you terminate them, that type of thing. I would say the bulk of the actual work that we do, are what we call wage an hour, employers not paying their employees properly. Then also some type of discrimination related to any one of the protected classes.
Justin: Wage an hour oftentimes relates to, I think in the classic context, are people that aren’t paid overtime because the employers don’t count something that’s required on their job to be part of their job. For example, I worked on one as a summer associate at a firm where there time putting on equipment didn’t count. When you put in a consideration of how much time it took to put it on their equipment, they were working overtime and not being paid for it. What are the more common wage and hour cases or the scenarios that lead to those that you think are still viable cases out there?
Lawrence: The ones that you are referring to are called donning and doffing cases, that it takes you 15 minutes to put on your uniform or something, and that should be compensable time. Frankly, in San Antonio, we don’t have a lot of manufacturing, and we don’t see a lot of those cases. The bulk of the wage an hour cases that we see are one of two things. One, where employers who want to save employment costs and they misclassify people’s independent contractors. Importantly, if you’re designated as an independent contractor, most of the employment laws don’t apply to you. That means the discrimination laws don’t apply to you, you don’t have to pay overtime, and there can be this incentive for employers to misclassify people as independent contractors.
The other side of that, the second point of wage and hour cases we see, are where people are basically instructed not to bill all of the hours that they work. We don’t have money in our budget to pay you for 50 hours. Therefore we want you to clock out at 5:00, but we need you to stay here until 7:00. As a result, they’re working off the clock. Those are the two ones we see most commonly.
Justin: The second one seems like the much more easy case to prove up and figure out what the compensable damages are.
Lawrence: It is, but the problem is, there’s always going to be a fight about how many hours people work. If I asked you how many hours you work, you could easily say a hundred hours, but if we actually went through and took a surveillance of it, it might be 70 or 80. There’s this natural inclination to overstate.
Justin: I’m glad you still think that I’m still a hard worker in your scenario, and I appreciate that.
Lawrence: Really take 20 to 30 hours for you, but whoever you are, there’s this exaggeration of hours naturally. Sometimes actually proving that up. We had a case where, for example, we had, I think, 80 or 90 people, and just trying to figure out logistically, how do we go to trial and prove to a jury, where they’re not falling asleep, how many hours, 80 or 90 people worked, and it can be complicated. The case got resolved before we had to actually go to trial. That can be one of the complicated factors.
Justin: Was the judge going to give you the four months of trial time that you needed?
Lawrence: No. There’s all kinds of sampling and techniques you can go through to try to get there. Fortunately, the law favors. I don’t want to get too legalistic here, but it would be too easy for employers to say, unless you can tell me how many hours you worked on every single day that you worked here, you can’t prove your case. That would be too easy. It’s their obligation to record the hours that they actually work. The law basically says that we’re going to allow people to provide a reasonable and just estimate. Then the employer has the obligation to basically come in and say, no, that’s not really right. Fortunately, there is a procedure within the law to help fill that problem.
Justin: You also mentioned on the independent contractor and the misclassification, that seems a much more intense focused analysis of the facts. What are you looking for in determining whether or not somebody is misclassified? If we have a listener who’s saying, “I think I’m misclassified. I don’t get overtime.” What are some of the things they should consider before they call a lawyer?
Lawrence: One question is going to be, how many hours are you working? Are you working more than 40 hours a week? Because if you’re not working more than 40 hours a week, frankly, there’s probably not going to be a wage an hour wage and overtime case. The second question is, how much control does your employer exercise over you? The more control, the more likely that you’re an employee, but the ultimate question is, are you in business for yourself, or are you working for somebody else? Because if you’re in business for yourself, then you likely are independent contractors. When somebody hires me to be their lawyer, chances are, they don’t tell me how to do my work or when I have to do it, they just tell me to get the job done. Very little control. I’m in business for myself, I’m an independent contractor.
Justin: That’s a similar analysis as we run into from a personal injury standpoint, sometimes where we’re saying, well, you call him an independent contractor, but you’re telling him what to do and the method of means of finishing that job. He’s really an employee. It’s a similar analysis. From a discrimination standpoint, we’re going to spend a little bit more time talking about this on another episode, as it relates to the recent Supreme court ruling on LGBTQ status, and whether they can be discriminated against in a discrimination context of what makes a viable case, what are you looking for, what are the facts that support one of those cases?
Lawrence: I will say these are the toughest cases. Because of the 50 people that call every week, I have to say, unfortunately, the law in Texas is at will employment. That means you can be fired for a good reason, a bad reason, or no reason, as long as it’s not an unlawful reason. The law spells out quite clearly, what are unlawful reasons. We need evidence that it is one of those types of reasons, race, age, national origin, now sexual orientation, sexual or gender identity.
One of the things that we’re looking at, frankly, is what is your evidence? Tell me, prove to me that the reason why you were treated differently is one of those types of things. Naturally now we see a lot more recordings. People recording conversations, where perhaps pejorative statements are made. That’s great evidence to show that there’s some type of animus towards a protected class. Frankly, jurors are expecting to see some type of direct evidence. The more of that that we see, the more likely we feel like we can connect the dots between a bad employment decision and a protected class.
Justin: I had this question the other day. Can an employer fire someone for utilizing their FMLA leave?
Lawrence: No, absolutely not. The FMLA allows up to 12 weeks of unprotected leave for certain serious health conditions, and you cannot be retaliated for doing that. Generally, if you are retaliated against, even for asking about FMLA, and whether you qualify under those circumstances, that generally is a protected complaint that could provide a cause of action.
Justin: The last thing I want you to hit is, you and I have worked on some warn act cases, worker adjustment, notification, whatever. The big picture is that it’s a mass layoff of multiple employees per location, and they have to either give them 60 days pay or–
Lawrence: 60 days notice.
Justin: Yes. Those cases are really difficult because oftentimes those employers are going bankrupt. What are the general elements of that type of claim, and what do you look for when you get those phone calls?
Lawrence: Yes. It’s a very mathematical statute. The first question is, does the employer have more than 100 employees? If they have more than 100 employees, under certain circumstances, if enough people are fired, they have to be provided 60 days notice. I would say looking at those numbers, do you satisfy all the numbers? If the answer is yes, then the question is going to be, is there some employer that can frankly cover the costs related to that? Because if somebody’s going into bankruptcy or becoming insolvent, sometimes even if there is a violation, it might be hard to collect.
Justin: With COVID going on, is there any special considerations for employees or employers as it relates to what they should be doing? If you’re an employer or employees should know that their employers can’t do during this time?
Lawrence: I will say there are so many different laws that have been impacted by COVID. On the one hand, we see increased animosity towards Asian-Americans as a result of the origins of the COVID-19 pandemic. As a result, there could be discrimination cases based on race and national origin there. On top of that, there’s all types of leave and disability questions that come up. I will say, if I’m, and I represent employers too and counseling them as well, that is going to be the most thorny issue, in that if you have somebody that has a disability and they request an accommodation related to COVID, for example, they have some disability and they want to work from home because of that disability under the ADA, you have an obligation to provide reasonable accommodations. It’s going to trigger a lot of those questions, not to mention that Congress and President Trump signed in a new law, the family first coronavirus response Act that provides paid leave for the first time to certain individuals related to COVID. It does it for small employers, that is employers that have 500 employees or less, which is complicated, and frankly, the department of labor and everybody’s still trying to figure it out. We’re getting a lot of calls about that too.
Justin: If somebody is one of these communities that’s compromised, either you’re elderly or you have some immuno-compromised condition, do they have a basis to say that they fall under the ADA for an accommodation to not go into a workplace where multiple people are there?
Lawrence: Maybe. I think age alone probably wouldn’t be enough, but if you had some health condition that made you more susceptible to getting COVID, and I think arguably you could easily say, look, I’m entitled to some accommodation. That might be anywhere from PPE being issued to you at the office, to maybe glass or some type of plexi gas being placed around your work area, to working from home reduced hours. It just depends on the circumstances.
Justin: Okay, Lawrence, if people want to learn more about you and your father and your sister and your wife, you’ll all work together. I think that’s great. You have a family environment like that. How can they learn more about your law firm?
Justin: The moralesfirm.com.
Lawrence: Okay. There’s multiple Morales firms, you and I joked about this at some point. moralesfirm.com. Facebook, is it The Morales Firm?
Justin: That’s right. The moralesfirm.com, and Facebook.
Lawrence: We’re going to do another episode. We’re going to talk a lot about the LGBTQ case that came out where they said that this discrimination on that basis is discrimination on the basis of sex. Therefore, those are protected classes of people. Thanks for doing this. We’ll have you back on the next one, which we’re going to record right after this one.
Justin: Thank you.
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