Mike Maslanka is editor of Texas Employment Law Letter and Assistant Professor of Law at UNT | Dallas College of Law.
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Articles by Michael P. Maslanka
A Simple Morale Booster for Your Workplace: Check-in, Tap-in
Employers spend a lot of time thinking about how to boost employee morale. The solutions range from bonuses to better benefits to recognition awards. But there’s a simpler and more effective way—namely, conducting a regular “check-in” with your employees or colleagues and “tap-in” to what they are doing.
Texas Supreme Court Limits Disability Definition
A recent case from the Texas Supreme Court circumscribed the definition of “disability” in the Texas Labor Code Section 21.002(6). Argument Sheri Kowalski worked as the director of finance at a hospital in Dallas. She was terminated in a reduction in force (RIF) but claimed the true reason for her termination was her disability.
DEI Isn't Dead: The Battle to Defend Diversity, Inclusion in a New Legal Landscape
“The report of my death has been grossly exaggerated!” exclaimed Mark Twain to the New York Times upon reading his mistakenly published obituary. Twain’s line comes to mind amid the seemingly daily hullabaloo over the purported demise of Diversity, Equity, and Inclusion (DEI) initiatives. There is a season for everything under the sun, and now is DEI’s period of testing, not its period of bereavement. First, a few words on the current frontal assault on DEI. Starting on Jan.
Solving an FMLA Mystery, Finally!
The Family and Medical Leave Act (FMLA) became the law in 1993. That’s more than 30 years ago. You’d think all questions about it would have been answered years ago by all federal appeals courts. But trust me, that’s not how the law works! A 2024 case from one of the largest appeals courts in the country just nailed down the answer to an FMLA mystery for the states within its jurisdiction. Something Amiss? Truck driver Tomas Perez claimed he got into a collision at work between his truck and a wall.
Federal Judge in Beaumont Sanctions Employee’s Lawyer for AI Fabrications
A straightforward wrongful termination claim resulted in a $2,000 sanction against a lawyer representing a former employee. Why? Inartful use of artificial intelligence (AI). Reading the Rules The federal judges covering the Eastern District of Texas (the eastern part of our state, roughly from Beaumont to Texarkana to Plano) issued a rule on the use of AI by lawyers in their courts.
From Hospital Bed to Legal Insights: Lessons in Life, Law, and Lawyering
“All experiences in life are good ones, if you draw the right lessons; otherwise, they’re just stuff that happened to you.” As a child, that was my mother’s advice. I’ve held her counsel close to me over these many years, most recently during a three night/four day (all meals included) excursion. Was it one accompanied by lapping surf, seemingly endless blue skies, lush vegetation? Well, not quite. My sounds and sights arose from a hospital stay.
Make Your Feedback Concrete
We all either give or receive feedback on work performance. While we say it’s important, we don’t always treat it as important. It often devolves into barroom generalities, personality-based observations, or negative stereotypes. My eyes were opened by a very actionable article published on November 1, 2024, in the Harvard Business Review titled “High Performers Need Feedback, Too,” by Rocki Howard, a thought leader in HR, inclusion, and work culture.
‘Rethinking’ Training: Consider a Cognitive Spin
I just finished reading Magic Words: What to Say to Get Your Way, by Jonah Berger, a marketing professor at the Wharton School of Business. It’s especially useful to HR professionals, who are often tasked with training duties and helping improve employee performance. Here are three training gems Berger offers. Gem #1: Leverage the Power of the Concrete We all share the desire to be heard, understood, and acknowledged. Consider customer service. Cognitive researchers conduct studies along these lines.
Good Job Interview? Here’s How to Help Seal the Deal!
Great interview! This is the job for you! Now what? Be strategic and thoughtful, as Art Markman suggests in his insightful article “4 Ways to Follow Up After a Job Interview,” published on November 5, 2020, in the Harvard Business Review. Four Options Always remember that your focus must be on the person who interviewed you, not on yourself, even though you may be energized about the job. Yes, you’re energized and want to do something, anything. But play it smart. Here are four ways to do so.
'Virtue Begets Virtue': Tips for Practicing Law (and Living) Ethically
Who Got The Work Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct.
Coach Fouls Out On Retaliation Claim
Retaliation claims are very dangerous for Texas employers. This is why any advantage is very welcome. So, a case that came out in September from the federal appeals court covering Texas is welcome news. Coach Complains; Coach Removed Charles Julien worked as a teacher and basketball coach for a high school. Following a losing season in the rough and tumble world of high school sports, he was dismissed as coach on October 26, 2018.
To Tell the Truth: Falsehood Dooms Lawsuit
The law requires that both sides to a lawsuit play fair. When that’s not the case, the side playing fast and loose with the rules gets punished. For a recent prime example, read on. Deposition Falsehood! After Daniel’la Deering was fired from her job as an in-house lawyer for Lockheed Martin, she sued for unlawful retaliation and claimed lost back wages. During her deposition, she testified that she was currently employed but that the pay wasn’t very good.
The Power of the Concrete: Tips for Effective Public Speaking
Who Got The Work Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct.
Go for Bronze! Insights into Career Goals and Job Satisfaction
HR professionals are called upon to perform a variety of tasks, one of which is to counsel employees (and perhaps themselves) on performance metrics and career goals. So, along with sporadic watching of this year’s Olympics in Paris, I read with interest an insightful article by Derek Sivers titled “Think Like a Bronze Medalist, Not Silver.” Gold, Silver, or Bronze? Better Vantage Point A cognitive study shows Bronze medalists are happier than Gold medalists. Why? Well, Silver is so painful.
'Assume the Stance': Pro Tips for Effective Deposing
Ever watch the movie "The Karate Kid"? Recently, while re-watching, I realized that labeling the movie as one about karate is like saying that "Moby Dick" is a novel about a whale. Rather, it is a movie on mentorship. An older sensei (teacher) starts to teach a younger acolyte (student) on the art of karate.
Use Your E-mail to Create a Powerful Workplace
Last month, I talked about how the military makes the most effective use of e-mail. This month, I want to talk about using email to build a team effectively, to develop an esprit de corps, and to make use of wasted electronic real estate. No. 1: This Is Not About Etiquette The following is about more than politeness. That’s the minimum expected of people in a workplace. Instead, it’s about using opportunities that present themselves to you every single day but are wasted.
Supervisor’s Instagram Triggers Hostile Work Environment Lawsuit
Once upon a time, the employee’s workplace was entirely separate from their private life. No more. The two now bleed together, resulting in legal trouble for employers. Male Manager Targets a Female Colleague Lindsay Okonowsky worked as the sole staff psychologist at a federal prison on the West Coast. Lieutenant Steven Hellman supervised the prison guards in her unit.
Case Study: Employer’s Caution Wins Lawsuit
One of the hardest things for employers is being accused of wrongdoing and, rather than reacting defensively, flipping it to their advantage. For an example of how to do so, let’s look to the University of Houston (UH) and how it handled a discrimination complaint from a disappointed professorship applicant. Professors Squabbling Kate Kingsbury applied for a professorship at UH in its Department of Comparative Cultural Studies.
Employers, Watch Your Mouth and Remember, 'Loose Lips Sink Ships'
Ever hear the expression “loose lips sink ships”? It comes from WWII and was plastered on posters in port cities, warning that gabbing about the sailing times of vessels carrying materials and soldiers would endanger their safe sailing. I thought it fit a very recent case from the U.S. 5th Circuit Court of Appeals, the federal appeals court covering Texas. Forewarned is forearmed. ‘Use Words Like Doctors Use Scalpels’ That’s what I tell my students again and again.
The Military Way of Writing Emails
We can learn a lot from the military. One such lesson: how to write effective emails, those that are read and understood. “How to Write Email with Military Precision” by Kabir Sehgal appeared in the Harvard Business Review on November 22, 2016, and it was an eye-opener for me! Make the Subject Line Count The first item the recipient sees is the subject line. The military doesn’t waste this real estate and gives direction on what, if anything, must be done.
Don’t Act Without Thinking: A Few Thoughts on Firing Employees
Conventional wisdom says firing an employee is one of the more difficult decisions for managers and HR. Unconventional wisdom says to think differently. Read on. Thought No. 1: Fire Sooner, Not Later When a new employee isn’t the right hire, act! When there isn’t a good match between your need and their talent, no amount of patience or training will fix the situation. Signs there’s no love match: The employee unhelpfully complains things were handled differently at a previous employer.
'Commit Yourself to Act': Actionable Guidance for Ethical Dilemmas
Teaching professional responsibility is an important gig, whether to law students or new lawyers. Rule memorization is one means, albeit flawed. Memories fail, and mere words—without grasping their animating spirit—provide scant guidance. Imparting traditional values—loyalty, honesty, transparency—is admirable yet not always useful in the rough and tumble of practice.
U.S. Supreme Court to Decide Key Exemption Issue
On June 14, the U.S. Supreme Court agreed to decide an important Fair Labor Standards Act (FLSA) question—namely, whether an employer claiming an exemption from overtime needs to prove it by “clear and convincing” evidence (a very high standard) or by a preponderance of the evidence (a lower, easier standard to meet). The decision is important.
How Being Present Can Make All the Difference Original
First, a definition: “quality”—something you are, not something you do. Now, a pop quiz: What is the most important quality of effective lawyering? Possible candidates—empathy, courage, intelligence, honesty. At any one time in my 43-year career, each was my answer. No longer. Who convinced me differently? A Rabbi, a psychotherapist, and a lawyer/novelist. Yes, yes, I know, this sounds like one of those “walks into a bar” jokes! It isn’t.
Case Study: Lights, Camera, Action... and Discovery Dispute
A TV host resigned because her employer didn’t respond when she complained about her cohost’s behavior. After her cohost was fired a few months later, she sued. During the pretrial fact-finding stage (discovery), the parties disagreed over what information they were required to exchange. Let’s take a look. Combustible Sydney Watson was the cohost of a TV show for Blaze Media, located in the Dallas-Fort Worth area. She and her cohost, Elijah Schaffer, clashed.
'Find Your Happy Place': Why Vacations Are Essential for Mind, Body and Soul (and Work)
It’s summer. Our imaginations drift toward vacations. Once upon a time (a/k/a when I was a kid), vacations were a stressed filled week at the shore or incessant sightseeing in our nation’s capital. Employees nervous about taking leave, employers begrudgingly granting them leave. The passage of time though doesn’t equate automatically with progress—including how vacations are viewed, taken and defined by society at large and law firms in particular.
'Remind, Never Lecture': 5 Tips to Improve Your Closing Arguments
Ah, early summer! Bluebonnets. Commencement speeches. The start of a new season. And now that I’m a full-time law professor, counseling students in trial competitions. Memories of trials past triggering memories of closing arguments past. Here, then, is a column on suggestions for your next closing argument. Suggestion No. 1: Skip the Throat Clearing At a closing’s start, toss unnecessary “throat clearing.” It comes in two flavors: excessive gratitude and personal stories.
Texas Supreme Court Gives Drafting Lesson on Employee Write-Ups
A recent decision by the Texas Supreme Court provides a valuable lesson for employers on how to draft employee discipline. Let’s start by examining law theory and then move on to look at how to put theory into practice. Legal Theory An important concept in Texas employment law is causation in a retaliation claim. For example, an employee complains about an issue at work—such as unlawful discrimination—or blows the whistle on government misconduct.
American Privacy Rights Act of 2024: What to Know and Where It Stands
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In April, House Committee on Energy and Commerce Chair Cathy McMorris Rodgers (R-WA) and Senate Committee on Commerce, Science and Transportation Chair Maria Cantwell (D-WA) introduced the American Privacy Rights Act of 2024 (APRA), a bicameral and bipartisan federal comprehensive privacy bill that would provide multiple governmental enforcement mechanisms, including for the Federal Trade Commission (FTC) and state attorneys general, as well as a private right of action for certain breaches...
By Krishnan Nair Verified, Brenda Sapino Jeffreys Verified, Jessica Seah Verified, Michael P. Maslanka
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Texas: Why Major UK Law Firms Are Coming for the Lone Star State
To Brits, Texas has that air of remoteness; it’s cowboys, heat, oil fields and Republicans. Distinctly U.S., but without the familiarity of, say, New York’s singular skyline or the sunlit sparkle of California’s celebrity-littered avenues. But among those who know where to find money, if Texas isn’t already a home away from home, it soon will be. Want to continue reading?
College, COVID and Compensation: Who Pays for the Loss of In-Person Classes?
When COVID-19 hit, thousands of college students were forced to switch from attending classes in person to receiving an online education. In the eyes of many, they got shortchanged. Colleges and universities argued that they were permitted to change any part of their mode of course delivery due to circumstances beyond their control. Was the difference significant enough to lead to a legally required prorated tuition refund?
Adjust Job Expectations for Employees on FMLA Leave
An employee’s performance is measured by the amount of work done. Fair enough. The employee takes Family and Medical Leave Act (FMLA) leave. Must the metrics of performance measurement be adjusted as a result? Earlier this year, by a 2-to-1 vote, a federal appeals court gave an emphatic “yes” in response. High-Pressure Job Marianne Wayland worked for OSF Healthcare System, which was on an acquisition binge gobbling up other healthcare providers. Her job was to integrate the new employees into OSF.
'There Is an Art to Losing': Five Tips for Reframing Your Losses Into Wins Original
“Victory has a thousand fathers, but defeat is an orphan,” lamented President John F. Kennedy. While lawyers embrace the garlands of victory, they eschew the ashes of defeat. Losing is given short shrift in legal education and in mentoring; yet it deserves equal billing on each of our career marquees. There is an art to losing, not just to winning, and it hinges on the ability to reframe. So, here is a short guide for a lost art.
'The Race Is Not Against Anyone Else': Letter to a Graduating 3L
Dear _____, Re-reading Rilke’s “Letters to a Young Poet,” I feel inspired to write this letter to you on the occasion of your law school graduation. True, I’m no Rilke, but it’s the thought that counts, isn’t it? While this letter is directed to you, I hope that its messaging resonates with other readers, and perhaps inspires them to write their own letters to graduates or to new lawyers.
Maritime Law Column: Texas Maritime Public Infrastructure Projects to Watch
Congress passed and President Joe Biden signed into law the Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Act (BIA) on Nov. 15, 2021, and the Inflation Reduction Act (IRA) on Aug. 16, 2022. These two laws represent the largest commitment ever of federal dollars to infrastructure projects.
Reimbursement Claims in Divorce Cases for Capital Contributions to Business Entities
Life is about change. Individuals come together and decide to build a life together. Sometimes, happiness evaporates and there is a need to dissolve the union. When couples divorce, or one party to the relationship dies, bliss can disintegrate and morph into battle. We like to think that we can rely on Texas statutes to help resolve such conflicts. While the Texas Legislature is well intentioned, has it consolidated Tx. Fam.
Browning: Food For Thought
Forget about the Brink’s armored car robbery of millions of dollars. Never mind the hype about the slick art thieves making off with priceless Rembrandts and Picassos from Europe’s finest museums. If you really want proof that crime doesn’t pay—but may make you really hungry—you’ll sit up and take notice of thefts involving what’s really important: food. In what I have to file under the heading of “only in Texas,” we have the theft of $1.2 million worth of fajitas.
Like It or Not, These Cases Point to the Future of Employment Discrimination Law
“Why is there always someone, somewhere, who just doesn’t get the word?” exclaimed President John F. Kennedy while grappling with the Cuban missile crisis. True in international relations, true in legal developments in employment law, flying into our lives under the radar. So consider the following a public service announcement of sorts so that we are all clued in.
Reframe criticism to become a better motivator
Be honest: Are you a good motivator at work? Scott Adams, the author of Reframe Your Brain: The User Interface for Happiness and Success, likely disagrees with your answer. But he gives us a way to rethink—or, as he puts it, reframe—our mindset on motivation. I, too, spend a lot of time thinking about this area and wanted to share some ideas as we rev up the new year. What we do now Adams writes that employers do it all wrong.
Reframe Criticism to Become a Better Motivator
Be honest: Are you a good motivator at work? Scott Adams, the author of Reframe Your Brain: The User Interface for Happiness and Success, likely disagrees with your answer. But he gives us a way to rethink—or, as he puts it, reframe—our mindset on motivation. I, too, spend a lot of time thinking about this area and wanted to share some ideas as we rev up the new year. What We Do Now Adams writes that employers do it all wrong.
What the Fifth Circuit's Ruling on Avoidance Actions Means for Debtors
On Monday, Jan. 22, 2024, the United States Court of Appeals for the Fifth Circuit entered a ruling in the South Coast Supply Company case, Briar Capital Working Fund Capital v. Remmert (In re South Coast Supply), Case No. 22-20536, Doc. No. 00517039869 (5th Cir. Jan. 22, 2024), allowing a bankrupt debtor to sell preference claims arising under section 547 of the Bankruptcy Code.
Interpretation in Context—A Litigation Scenario (Part 1) | Texas Lawyer
Last time, we looked at interpretive strategies designed to avoid anti-fraud regulatory regimes like those skirted in Enron and other corporate fiascos. But what of laws that can support readings that can fairly be interpreted to allow or prohibit certain business practices?
Case Study: Can Joy at Employee Firing Be Evidence of FMLA Violation?
Here’s a tale from the U.S. 5th Circuit Court of Appeals (whose rulings apply to all Texas employers), which told a Texas trial court that it erred in dismissing a Family and Medical Leave Act (FMLA) retaliation lawsuit against the city of Granbury. In deconstructing the appeals court’s opinion, we see how judges—like each and every one of us—fit facts into a narrative framework. And guess what, this framework drives the case result.
Proving Noneconomic Damages Post-'Gregory v. Chohan'
This past summer, the Texas Supreme Court considered the issue of the size of the noneconomic damages in Gregory v. Chohan. The underlying case involved a wrongful death. An 18-wheeler driven by Sarah Gregory jackknifed near Amarillo Texas, crossing lanes of traffic, and resulting in the death of four people. Bhupinder Deol died as a result of the accident. Deol worked as a truck driver and was described as “a husband, son, and father of three.” Several other vehicles were involved in the accident.
Go With the Flow: Five Key Mindsets for Work and Life Original
“Seek not to be blessed, but rather seek to be a blessing.” The speaker? Former University of Alabama football coach, Nick Saban. Roll Tide! Professorship and senior lawyer status share this perk: a daily opportunity with students and new lawyers to live out Saban’s insight. Here are five mindsets I share. What are yours? Mindset No. 1: Be Open to the Universe How did I learn of the Saban quote?
Case Study: TCU Aces FMLA Quiz
The Family Medical Leave Act (FMLA) is riddled with all sorts of employer obligations and therefore with all sorts of potential violations. Recently, TCU gave a seminar on dodging an FMLA interference claim. FMLA Interference? The FMLA forbids employers from retaliating against an employee for seeking FMLA leave. It also (unlike most other employment laws) prohibits employers from interfering with an employee’s right to take FMLA leave.
Rule vs. NRLB: Telsa Dress Code Hums Along at E-Car Plant
The U.S. 5th Circuit Court of Appeals (the federal appeals court covering Texas) recently gave a green light to a dress code rule at a Telsa facility manufacturing electric cars. Read on. Dress for Success The Telsa facility gave each production employee what it called Team Wear: four black shirts and a black sweater, each featuring the company name and logo. Here was the rule: It is mandatory that all Production Associates and Leads wear the assigned Team Wear.
Know Thyself: Remember These Five Aspects of Human Nature To Be More Ethical Original
Lawyers go astray. Fresh rookies, seasoned veterans—none are immune. At times, we know better, yet we press onward. But often, our failings resemble more of a Shakespearean tragedy—driven by human nature—than by willful, consciously performed misdeeds. Understanding human nature empowers us, enabling the exercise of our free will to trump our default settings. Here, then, are five aspects of human nature to know and to apply towards a more ethical practice.
Severance Payout: Lessons from Texas A&M’s $75 million mistake
Even if you’re not a sports fan, you’ve likely heard of this severance payout received by former A&M football coach, Jimbo Fisher. While you will never deal with this type of buy-out, the saga teaches us a great deal about hiring decisions, employment contracts, and, well, human nature. Jimbo’s the One! The following facts are taken from a November 12, 2023, piece by Sam Kahn Jr. appearing in “The Athletic.” Jimbo was the head coach of the title winning Florida State Seminoles.
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