The Dallas Hospitality Employment Lawyer Blog

According to the Dallas Court of Appeals, the short answer is that absent fraud or trickery, an employee's inability to read or comprehend English is not a defense to a motion to compel arbitration where the employee executed an English version of an acknowledgment which referenced the arbitration agreement.  MiCocina, Ltd D/B/A Taco Diner v. Jose Balderas-Villanueva , No. 05-16-01507-CV (Oct. 27, 2017).  http://www.search.txcourts.gov/Case.aspx?cn=05-16-01507-CV&coa=coa05   In this case, the employee, who did not read or speak English, signed a one-page document titled, "Acknowledgment of Receipt of Employee Handbook," written in English, which memorialized receipt of the Mutual Agreement to Arbitrate, a summary description of the work-related injury plan, a department of insurance non-subscriber form, and a company handbook.  Neither the employer nor the employee signed the Mutual Agreement to Arbitrate referenced in the Acknowledgment. Thereafter,...

    In a decision that took more than one year from the date of oral argument to issue, a panel of the Seventh Circuit recently affirmed summary judgment for a company that was sued for violations of the ADA, including a failure to accommodate, after it terminated an employee who had exhausted his Family and Medical Leave Act (FMLA) leave and was unable to return to work for at least another two months due to a planned surgery.   Severson v. Heartland Woodcraft, Inc ., No. 115-3754 (7th Cir. Sept. 20 2017).       With assistance from the EEOC, the employee argued that a long-term medical leave of absence should qualify as a reasonable accommodation under the ADA when the leave is for a definite duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return to work. The Court rejected this argument, noting that the term “reasonable accommodation” is expressly limited to those measures that w...

Employers with employees who drive as part of their job duties should know that Texas's texting while driving ban takes effect today.  Fines can range from $25 to $99, and up to $200 for repeat offenders. Drivers are, however, permitted to use hands-free devices. Employers should ensure employees are aware of the ban and penalties. 

Effective September 1, 2017, and pursuant to House Bill 1935, Texans over the age of eighteen will be permitted to open carry knives with blades longer than five and one-half inches.   Instead of prohibiting the carrying of an “illegal” knife, defined in the prior version of the law as “a knife with a blade over five and one-half inches,” including, without limitation, daggers, dirks, stilettos, poniards, bowie knives, swords, or spears, the new law focuses on public places where these types of blades (now known as “location-restricted knives”) cannot be open carried.     More specifically, under HB 1935, a person commits a felony of the third degree if he intentionally, knowingly, or recklessly possesses or goes with a location-restricted knife on the physical premises of a school or educational facility; on the premises of a polling place on the day of an election or while early voting is taking place; on the premises of any court buildings or court offices, or r...

Not long ago, I wrote about how the National Labor Relations Board’s (NLRB's) positions on various handbook policies transcended common sense.   In a recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals agreed, holding that the following employer handbook policies did not , contrary to the NLRB’s opinion, violate Section 7 of the National Labor Relations Act and “chill” an employee’s organizing rights: (1) encouraging employees to “maintain a positive working environment”; (2) prohibiting "arguing or fighting," "failing to treat others with respect," and "failing to demonstrate appropriate teamwork"; and (3) prohibiting access to electronic information by non-approved individuals. See T-Mobile USA, Inc. v. National Labor Relations Board , No. 16-60284 ( 5th Cir. July 25, 2017).     According to the Court, the relevant inquiry isn’t whether a rule “could” conceivably be read to cover Section 7 activity, but rather whether a re...

In its ExxonMobil Corporation and WHM Custom Services Inc. v. Rincones decision issued last week, the Texas Supreme Court held that there is no independent cause of action in Texas for compelled self-defamation.  http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/ .   The crux of this sometimes-recognized tort is that a former employee's publication to a third party can satisfy the publication element of a defamation claim because the former employee is effectively compelled to publish the defamatory statement to prospective employers when the employee is asked why she left her former employment.  The claim often arose in cases where an employee alleged that the employer gave a false reason for the employee's discharge, and the employee was "compelled" to publish the false statement to prospective new employers during the hiring process.  Prior to the Supreme Court's decision, several appeals courts in Texas had recognized the t...

Pundits proclaimed that with the new administration, the National Labor Relations Board (NLRB) would dial down or pull back from its current position of DEFCON 2 with respect to employer handbook policies.  As evidenced by a decision issued by an Administrative Law Judge last week, it does not appear that a retreat is in sight.   In Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25 , Case Nos. 01-CA-153956, 01-CA-158947, and 01-CA-165432 (May 12, 2017), the ALJ found that the following handbook policies violated the National Labor Relations Act (NLRA), even though most of them were not actually at issue in the case:   1.  Integrity Code (communications):  employees should not engage in communications that "include material that is inappropriate, untrue, or disparaging to outside parties or to [employer]."  According to the ALJ, the NLRB has repeatedly held that such a prohibition is unlawful bec...

Currently pending before the Texas Supreme Court is a case involving three important issues for Texas employers, both public and private.   First, to invoke the TCHRA’s waiver of governmental immunity, must a plaintiff establish but-for causation found in the third step of the McDonnell Douglas burden-shifting framework? Second, what kind of evidence can establish that same-sex harassment was not just about gender, but because of gender?   And third, must a supervisor actually exercise hiring and firing authority under the United States Supreme Court’s standard in Vance v. Ball State Univ . for the purpose of establishing vicarious liability?   In Alamo Heights Ind. Sch. Dist. v. Clark , No. 16-0244, Clark, a female physical education teacher and coach, claimed she was sexually harassed by her female supervisor and a co-worker, and fired in retaliation for her complaints.   In the trial court below, the school district filed a plea to the jurisdiction, which th...

Since the government's appeal of in injunction issued in December 2016 by Judge Amos Mazzant that blocked the implementation of the Obama administration's overtime rule overhaul, employers have been waiting to see whether the new administration will take up the battle cry or fall back and retreat.   This week, and for the second time since the government filed its appeal, the Fifth Circuit granted an extension of 60 days, or to and including June 30, 2017, for the government to file a reply brief.    Clearly, the government is waiting on the confirmation of Alexander Acosta as the new Secretary of Labor, and expects him to provide guidance regarding the administration's position on this issue.  Assuming that Acosta is confirmed, and based on his confirmation hearing testimony, it is unlikely that the Department of Labor will continue the appeal.  What is unknown is whether Acosta will consider more modest changes to the current ...

To state a claim for retaliation under Title VII, a plaintiff must show that: (1) he engaged in conduct protected by Title VII; (2) he suffered a materially adverse action; and (3) a causal connection exists between the protected activity and the adverse action.  For an employer's action to qualify as a materially adverse action, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, meaning that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.   In the Cabral v. Brennan decision issued last week, the Fifth Circuit affirmed summary judgment for the United States Postal Service (USPS) and agreed that a two-day suspension without pay did not constitute a materially adverse employment action to support a Title VII retaliation claim.  A copy of the decision can be found here:  http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions . ...

Last week, a panel of the Eleventh Circuit affirmed dismissal of a plaintiff’s Title VII sexual orientation claim, but vacated the district court’s order dismissing the employee’s gender non-conformity claim, drawing both an interesting concurring opinion and a no-holds-barred, partial dissent.   See Evans v. Georgia Regional Hosp., et al ., No. 15-15234 (11th Cir. March 10, 2017).   In Evans , the initially pro se plaintiff, a lesbian hospital security officer, claimed, among other things, that she was discriminated against for failing to conform to gender stereotypes and because of her sexual orientation.   A magistrate judge recommended dismissal of the claims because Title VII was not intended to cover discrimination against homosexuals, and further because the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.”   The district court conducted a de novo review of the record and adopted, without further c...

A Texas employer defeated multiple, disability-based claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who injured herself on the job and complained when the employer did not reassign her to a different position.  In EEOC v. Methodist Hospital of Dallas , No. 3:15-CV-3104-G, the employee, a patient care technician (PCT), injured herself on the job and obtained various medical restrictions, some of which restricted work entirely, and some permitting light duty work.  The employer accommodated the light duty until the employee's doctor released her to return to work as a PCT.  Around the time of the release, the employee approached the employer and requested a reassignment to accommodate her injury.  She also requested and received leave under the Family and Medical Leave Act (FMLA), as well as additional, personal leave.    The employer did not reassign the...

With the new administration’s flurry of activities related to the broader enforcement of immigration laws, one issue looms large for employment lawyers---will undocumented immigrants still be protected from unlawful employment practices under various federal laws?   The answer today is far from clear. Title VII of the Civil Rights Act of 1964, as amended (Title VII), protects “individuals” from unlawful employment practices, and does not distinguish between documented and undocumented workers.   In its Compliance Manual , Section 2, “ Threshold Issues ,” the EEOC opines that, “Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”   At least one court within the Fifth Circuit has expressed that “illegal aliens” would be entitled to protections under Title VII.   See EEOC v. Taqueria Rodeo de Jalisco , No. 4:11-cv-03444, 2012 U.S. Dist. Lexis 179552, *7 n.1 (S.D. Tex. De...