tag:blogger.com,1999:blog-213459860553862032024-03-02T02:31:57.796-08:00The Dallas Hospitality Employment Lawyer BlogDallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.comBlogger102125tag:blogger.com,1999:blog-21345986055386203.post-31992022542937104112021-09-07T14:55:00.001-07:002021-09-07T15:01:23.147-07:00(Un)Intended Consequences? Can Employers be Sued Under the New Texas Heartbeat Act?<p style="text-align: justify;"><span style="font-family: times;">On September 1, 2021, the most restrictive abortion law in the country went into effect in Texas. Known as the "Texas Heartbeat Act," the statute, which creates a new subchapter of Chapter 171 of the Texas Health and Safety Code, privatizes a right of action against people who aid and abet abortions in violation of the new law.</span></p><p><span style="font-family: times;">More specifically, the statute provides that "any person" other than a state actor can bring an action against "any person" who:</span></p><blockquote style="border: none; margin: 0px 0px 0px 40px; padding: 0px;"><p style="text-align: justify;"><span style="font-family: times;"><i>knowingly engages in</i> [or intends to engage in] <i>conduct that aids or abets the performance or<span> </span>inducement of an abortion</i>, including paying for or reimbursing the costs of an abortion through insurance or otherwise, if the abortion is performed or induced in violation of this subchapter, <i>regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter.</i>..(emphasis added).</span></p></blockquote><p style="text-align: justify;"><span style="text-align: left;"><span style="font-family: times;">How could this affect employers? </span></span></p><p><span style="font-family: times;">First, how broadly will courts define "conduct that aids or abets"? </span></p><p></p><ol style="text-align: left;"><li><span style="font-family: times;">What if an employer grants a woman time off of any kind (PTO, unpaid leave, FMLA leave) that she uses for an abortion in violation of the law? </span></li><li><span style="font-family: times;">What if an employer's insurance covers the cost of what is later found to be an "illegal" abortion?</span></li><li><span style="font-family: times;">What if an employer provides employee assistance program benefits to a woman who chooses, after the use of such services, to have an "illegal" abortion?</span></li></ol><p></p><p style="text-align: justify;"><span style="font-family: times;">Second, who can be sued? Individual employees? The corporate entity? Both? <span style="text-align: justify;">The statute does not define the term "person," and based on the concept of corporate personhood, corporations are also persons with the rights to sue and be sued.</span></span></p><p><span style="font-family: times;"><span style="text-align: justify;">And third, would an employer have to violate HIPAA to qualify for an affirmative defense? It is an affirmative defense under the statute if the defendant "reasonably believed, after conducting a reasonable investigation," that the physician performing or inducing the abortion would comply with the law. What is a "reasonable investigation"? Would HR or benefits employees need to directly contact a woman's healthcare provider to determine the precise nature of the services to be performed </span><i style="text-align: justify;">prior</i><span style="text-align: justify;"> to approving any type of leave or other related benefit?</span></span></p><p style="text-align: justify;"><span><span style="font-family: times;">The Bill analysis by the House Public Health Committee <a href="https://trackbill.com/bill/texas-senate-bill-8-relating-to-abortion-including-abortions-after-detection-of-an-unborn-childs-heartbeat-authorizing-a-private-civil-right-of-action/2067179/">https://trackbill.com/bill/texas-senate-bill-8-relating-to-abortion-including-abortions-after-detection-of-an-unborn-childs-heartbeat-authorizing-a-private-civil-right-of-action/2067179/</a> fails to address what are serious potential liability issues, created by a poorly drafted statute, for employers to consider. </span></span></p><p style="text-align: justify;"><span><span style="font-family: times;">Employers can contact me at voltmera@gtlaw.com for additional information.</span></span></p><p style="text-align: justify;"><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com15tag:blogger.com,1999:blog-21345986055386203.post-32733751809063185182021-09-01T02:05:00.014-07:002021-09-01T02:40:03.677-07:00Are Private Employers Ready for the New Sexual Harassment Laws in Texas?<p style="text-align: justify;">Texas is considered an employer-friendly state, so it may come as quite a surprise that several bills that significantly impact sex harassment law passed, without fanfare, in the last legislative session, and go into effect today, September 1, 2021. </p><p style="text-align: justify;">More specifically, the legislature amended several sections of Chapter 21 of the Texas Labor Code, which includes the state's version of Title VII, to be more in line with the laws of California. Here's what employers need to know:</p><p style="text-align: justify;">First, the legislature amended Chapter 21 to provide that <i>with respect to sexual harassment</i>, an "employer" is a person who employs 1 or more employees <u>or</u> "acts directly in the interest of an employer in relation to an employee." </p><p style="text-align: justify;"><b>What does this mean and why does it matter? </b></p><p style="text-align: justify;">Until today, Chapter 21 has applied to employers with 15 or more employees; therefore, this amendment now covers virtually every employer with respect to sex harassment claims. It also means that individual supervisors can be held liable for sex harassment, whereas prior to today, they could not. </p><p>Second, the legislature expanded the timeframe for an employee to file a charge of discrimination for sexual harassment from 180 days to 300 days. Conduct occurring before September 1, 2021 will be governed by the 180-day charge filing deadline. </p><p><b>Why should employers care?</b></p><p style="text-align: justify;">Because an employee now has nearly double the amount of time to file a charge of discrimination related to sex harassment.</p><p style="text-align: justify;">Third, the legislature included what clearly appears to be a heightened standard for employer responses to sex harassment claims. The new language provides that an "unlawful employment practice" occurs if there is sexual harassment of an employee and the employer or the employer's agents or supervisors: (1) know or should have known that the conduct constituting sexual harassment was occurring; <u>and</u> (2) fail to take <i>immediate and appropriate </i>corrective action. </p><p style="text-align: justify;">Whether an employer's actions to correct sexually harassing behavior were immediate and appropriate could, depending on how case law is developed, used, and interpreted, create fact issues precluding summary judgment for employers. <span style="background-color: white; font-family: "GT Sectra", Times, serif; font-size: 15px;"> </span></p><p style="text-align: justify;"><b style="font-family: "GT Sectra", Times, serif; font-size: 15px;">But wait, there's more...</b></p><p style="text-align: justify;">These changes have far wider implications for all employers in relation to, by way of example only, sex harassment investigations, insurance coverage, policy updates, management training, and job descriptions. </p><p>Contact me for more information on best practices for compliance. </p><div class="separator" style="clear: both; text-align: center;"><iframe allowfullscreen='allowfullscreen' webkitallowfullscreen='webkitallowfullscreen' mozallowfullscreen='mozallowfullscreen' width='320' height='266' src='https://www.blogger.com/video.g?token=AD6v5dyrLCjhPbz9pClxBOLY0ZkdYC_CC74I7cCTBEmdNFKlFncBN3kY-Kzx7gIAkBCK8TsC7Xx5K65dj93i-MeH' class='b-hbp-video b-uploaded' frameborder='0'></iframe></div><br /><p><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com10tag:blogger.com,1999:blog-21345986055386203.post-49081851442918612372021-07-31T08:59:00.000-07:002021-07-31T08:59:09.708-07:00Quantum of Evidence: proving the existence of an arbitration agreement<p style="text-align: justify;">In what I'll call its <i>Quantum of Evidence</i> decision issued this month, not to be confused with the 2008 James Bond flick, <i>Quantum of Solace</i>, the Fifth Circuit tackled the issue of the "quantum of evidence required to prove or disprove the existence of an agreement to arbitrate" in the Fifth Circuit. More specifically, it addressed the appropriate standard for a district court to apply when considering a motion to stay or compel arbitration where <i>the formation</i> of an agreement is disputed.</p><p style="text-align: justify;">In <i>Gallagher v. Vokey</i>, No. 20-1100 (5th Cir. July 1, 2021), the Court found that the district court erred in denying an attorney's motion to compel arbitration of claims related to his retired Navy Seal client's refusal to pay legal invoices.</p><p>Under existing Fifth Circuit precedent, a party resisting arbitration:</p><p></p><ul style="text-align: left;"><li> bears the burden of showing he is entitled to a jury trial;</li></ul><ul style="text-align: left;"><li>must make some showing that under prevailing law, he would be relieved of his contractual obligation to arbitrate if his allegations prove to be true; </li></ul><ul style="text-align: left;"><li>must produce at least some evidence to substantiate his factual claim; and</li></ul><ul style="text-align: left;"><li>must unequivocally deny that he agreed to arbitrate and produce "some" evidence of this. </li></ul><p></p><p></p><p style="text-align: justify;">In this case, the attorney provided a signed copy of the engagement letter containing the arbitration agreement, two of his own declarations, and a declaration from a disinterested party who witnessed the client's execution of the engagement letter to prove the existence of a valid arbitration agreement. In contrast, the client never "plainly denied" he signed or executed the contract, claimed the declarations were self-serving, and argued he had no recollection of signing the engagement letter.</p><p style="text-align: justify;">The Court made short work of the client's arguments, noting that the client never flatly denied signing the agreement and that under Texas law, a party's signature on a written contract is strong evidence that the party unconditionally assented to its terms. It also reiterated that a party's inability to remember signing a contract is not sufficient to raise a material issue as to the validity of the agreement.</p><p style="text-align: justify;">Finally, the client claimed he was fraudulently induced to enter into the agreement, yet was unable to state with particularity the circumstances constituting fraud or mistake.</p><p style="text-align: justify;">In short, the attorney's evidence was adequate to establish that he and the client had entered into an enforceable arbitration agreement and their billing dispute fell within the scope of that agreement. The client, on the other hand, produced no evidence to contradict the enforceability of the agreement or put the formation of an agreement in issue. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p><p><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com3tag:blogger.com,1999:blog-21345986055386203.post-10391725918052440132021-06-19T12:49:00.000-07:002021-06-19T12:49:22.604-07:00Ten Things Texas Employers Need to Know About the New "No Need for a Firearm Carry Permit" Law<p> At a time when gun violence is increasing across the country, and based on publicly available data, Texas currently ranks second in the nation (behind Illinois) in mass shootings for 2021, the Texas Legislature enacted the Firearm Carry Act of 2021. </p><p>Here's what Texas employers need to know:</p><p>1.<span> The effective date of the new law is September 1, 2021.</span></p><p>2.<span> The law applies to persons 21 years of age or older and not otherwise prohibited by state or federal law from possessing a firearm, and to those 18 years or older in the military.</span></p><p><span>3. Persons who meet the criteria in #2 above will be able to carry a firearm <u>without</u> a government issued license or permit, which means they will not be required to take gun safety and handling courses as a prerequisite to carrying.</span></p><p>4.<span> The law does not prohibit an employer from prohibiting an employee who lawfully carries without a permit from possessing the firearm on the employer's premises.</span></p><p><span>5.<span> </span></span>An employer must follow the posting requirements to prevent employees from carrying without a permit on the employer's premises. </p><p><span>6.<span> It is a Class C misdemeanor for an individual to carry a firearm into a business if he has oral or written notice that such action is prohibited.</span></span></p><p><span>7.<span> The law does not change the "guns allowed in the employer's parking lot" law.</span></span></p><p><span>8.<span> The law does not change the places where individuals are prohibited from carrying, including bars and amusement parks.</span></span></p><p>9. An employee who lawfully carries without a license commits an offense if he carries a handgun and intentionally displays it (<i>i.e</i>., brandishes it) in plain view of another person in a public place, although it is a recognized exception if the gun is partially or wholly visible in a holster.</p><p>10.<span> Employers that want to prohibit firearms on their premises should follow the posting requirements.</span></p><p><span><span><span>Additionally, now is a good time to ensure that Active Shooter policies and protocols are reviewed and updated, if necessary. </span></span></span></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com9tag:blogger.com,1999:blog-21345986055386203.post-124979216625801912021-06-13T18:09:00.001-07:002021-06-13T19:12:42.184-07:00Texas Federal Judge Dismisses Employees' Lawsuit Challenging Private Employer's Mandatory COVID-19 Vaccines<p style="text-align: justify;">Can private employers enforce mandatory COVID-19 vaccines as a condition of employment?</p><p style="text-align: justify;">In December 2020, the EEOC said "yes," subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs. </p><p style="text-align: justify;">Yesterday, Southern District of Texas Judge Lynn Hughes agreed, dismissing plaintiffs' lawsuit against Houston Methodist Hospital based on the hospital's policy requiring mandatory COVID-19 vaccinations for its employees by June 7, 2021. </p><p style="text-align: justify;">What is interesting about the Court's opinion is the approach to the issue. </p><p style="text-align: justify;">First, the Court refused to consider vaccine safety and efficacy in adjudicating the issue, stating they were "irrelevant."</p><p style="text-align: justify;">Second, and reaffirming Texas's strong public policy related to employment at-will, the Court found that the plaintiffs did not meet the <i>Sabine Pilot</i> exception to at-will employment, which protects employees from being terminated for refusing to commit an illegal act carrying criminal penalties for them.</p><p style="text-align: justify;">Third, the Court expressly rejected the argument that the vaccination mandate violates public policy, finding that "the injection requirement is consistent with public policy."</p><p style="text-align: justify;">Fourth, the Court rejected the arguments that the injection requirement violates federal law. More specifically, plaintiffs argued that no one can be mandated to receive "unapproved" medicines in emergencies (because the vaccines have not yet received full approval by the FDA), and that the injection requirement forces employees to participate in human trials. Regarding these arguments, the Court found that the provisions on which the plaintiffs relied did not apply to private employers, and that the hospital's employees were not participants in a human trial.</p><p style="text-align: justify;">Finally, Judge Hughes was not amused by plaintiffs' argument that the injection requirement violated the Nuremberg Code, writing "The Nuremberg Code does not apply because Methodist is a private employer...[e]quating the injection requirement to medical experimentation in concentration camps is reprehensible."</p><p style="text-align: justify;">Concluding the order, and importantly for employers, the Court confirmed the plaintiffs were not being "coerced" by choosing between the vaccination and termination, finding, "[i]f a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker's behavior in exchange for his remuneration. That is all part of the bargain."</p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com3tag:blogger.com,1999:blog-21345986055386203.post-53117150997938302622021-06-04T05:11:00.001-07:002021-06-04T05:14:20.946-07:00Employer No-Poach and Related Restrictive Agreements Face Continued Scrutiny<p><span style="font-family: "Times New Roman", serif; text-align: justify;">Three recent developments demonstrate that both the United States Department of Justice (DOJ) and courts around the country are continuing to scrutinize employer agreements that in any way restrict employee mobility.</span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif;">First, in January 2021, the Antitrust Division of the DOJ filed its first criminal indictment against two outpatient medical care facilities alleging that as competitors, the two companies engaged in a conspiracy to suppress competition between them by agreeing not to solicit each other’s senior-level employees. <i>See U.S. v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC</i>, No. 3-21-cr-0011-L, in the United States District Court, Northern District of Texas, Dallas Division. Currently pending before the Court is the employer-defendants’ motion to dismiss.</span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif;">Second, in April 2021, the Pennsylvania Supreme Court found that a no-poaching agreement between trucking companies was unenforceable and against public policy because it created a “probability of harm to the public.” <i>See Pittsburgh Logistic Systems v. Beemac Trucking, LLC and Beemac Logistics, LLC</i>, 2021 WL 1676399 (Pa. Apr. 29, 2021). </span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif;">Third, in May 2021, a federal district court in New York told parties settling a Fair Labor Standards Act case that the no-rehire provision in the proposed settlement agreement was “highly restrictive” and at odds with federal labor law. In an order, the Court directed the parties to either agree to the Court’s striking of the no-rehire clause or submit an alternative settlement agreement or status update. <i>See Flores v. Greenwich BBQ LLC et al</i>., No. 1:20-cv-09514, United States District Court, Southern District of New York. </span></p><p style="text-align: justify;"><span style="font-family: "Times New Roman", serif;">These cases serve as a reminder to employers that no poach and no rehire agreements can be highly problematic and should be reviewed with counsel to determine whether, under current precedent, they are enforceable.</span></p><p style="text-align: justify;"><span style="font-family: Times New Roman, serif;"><br /></span></p><p style="text-align: justify;"><span style="font-family: Times New Roman, serif;"> </span></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-57140527825837136582021-06-01T10:54:00.000-07:002021-06-01T10:54:16.819-07:00Will a Click Stick? The Texas Supreme Court Weighs in on the Enforceability of Electronic Signatures on Arbitration Agreements <p><span style="text-align: justify;">Last Friday, the Texas Supreme
Court, in </span><i style="text-align: justify;">Aerotek, Inc. v. Boyd et al</i><span style="text-align: justify;">., No. 20-0290 (Tex. May 28, 2021),
reversed the Dallas Court of Appeals and found that an employer conclusively established
that four employees signed and therefore consented to arbitration agreements
using the employer’s computerized hiring application that required the
employees’ digital signatures.</span></p><p class="MsoNormal" style="text-align: justify;"><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Like many employers, Aerotek uses
a computerized hiring application for onboarding.<span style="mso-spacerun: yes;"> </span>The system automatically sends a welcome
email to the successful candidate with a hyperlink to navigate to the hiring
application’s online account registration page.<span style="mso-spacerun: yes;">
</span>Once there, the candidate creates a unique user ID and password and
selects security questions.<span style="mso-spacerun: yes;"> </span>To later log
in to the hiring application, the candidate must enter this user ID, password,
and security-question combination correctly.<span style="mso-spacerun: yes;">
</span>Aerotek’s witness testified that the steps could not be skipped to reach
the end of the process, and that Aerotek could not alter forms after they were
submitted.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Here, the employees completed the
onboarding process, which required the use of their digital signatures in several
instances, including on an arbitration agreement.<span style="mso-spacerun: yes;"> </span>The employees later claimed race discrimination
and retaliation, filed suit, and were met with Aerotek’s motion to compel
arbitration.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The employees submitted
affidavits claiming they did not see or sign the arbitration agreements despite
the fact that Aerotek produced evidence including each employee’s timestamped,
electronic signature and the security procedures related to the application.<span style="mso-spacerun: yes;"> </span>The trial court denied Aerotek’s motion to
compel arbitration and the Dallas Court of Appeals affirmed.<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">Reversing, the Court, after
reviewing the Texas Uniform Electronic Transactions Act, determined that Aerotek’s
evidence showing the security procedures its hiring application used to verify
that a candidate electronically signed the arbitration agreement was “uncontroverted.”<span style="mso-spacerun: yes;"> </span>According to the majority, once Aerotek proved
its security procedures, which it did, the burden shifted to the employees to demonstrate
how their electronic signatures could have wound up on the arbitration
agreements, considering that “mere denials do not suffice.”<o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">The Court further noted that the
employees were free to seek discovery to attack the reliability of the hiring
application’s security procedures, but chose not to do so.<span style="mso-spacerun: yes;"> In short, an employee's mere denial of his electronic signature on a document, in the face of evidence establishing the efficacy of the employer's security procedures used in generating the agreement, will not suffice.</span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;">This case is important because it
establishes a clear burden of proof for an employer seeking to enforce a
digitally signed employment-related agreement when the employee disavows the
signature.<span style="mso-spacerun: yes;"> </span><o:p></o:p></p>
<p class="MsoNormal" style="text-align: justify;"><o:p> </o:p></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com4tag:blogger.com,1999:blog-21345986055386203.post-64485223800534261602021-05-29T14:22:00.004-07:002021-05-31T05:05:10.959-07:00Does the Supreme Court’s Bostock Decision Allow Employers, Religious or Secular, to Discriminate Against Bisexual Employees?<p><span style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: justify;">According to the
plaintiffs in </span><i style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: justify;">U.S. Pastor Council et al. v. Equal Employment Opportunity Commission,
et al.</i><span style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: justify;">, No. 4:18-cv-00824-O, In the United States District Court, Northern
District of Texas, Fort Worth Division, who filed a motion for summary judgment
on this issue last week, the answer should be yes.</span></p>
<div style="text-align: justify;"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">In <i>U.S. Pastor</i>,
the plaintiffs contend that <i>Bostock’s</i> interpretation of Title VII does
not prohibit discrimination against bisexual employees (as opposed to
homosexual or transgender employees specifically referenced in <i>Bostock)</i>
as long as the employer regards bisexual behavior or orientation <i>as equally
unacceptable in a man or woman</i>.<span style="mso-spacerun: yes;"> </span>In
support of their argument, the plaintiffs cite the following language from <i>Bostock</i>:</span></div><div style="text-align: justify;"><blockquote><span style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: left;">Take an employer who fires a female employee for tardiness
or incompetence or simply supporting the wrong sports team. </span><span style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: left;">Assuming the employer would not have
tolerated the </span><span style="font-family: "Times New Roman", serif; font-size: 12pt; text-align: left;">trait in a man, Title VII
stands silent.</span><span style="text-align: left;"> </span></blockquote></div><div style="text-align: justify;"><div><i>Bostock v. Clayton County, Georgia</i>, 140 S. Ct. 1731, 1740 (2020). Setting aside any personal beliefs or opinions regarding the Supreme Court’s decision, the plaintiffs’ argument appears misplaced based on <i>Bostock’s</i> logic. More specifically, the quote relied on by plaintiffs is cherry-picked from the opinion and omits the related logic which immediately follows:</div><div><p class="MsoNormal"></p><blockquote><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">But unlike any of these
other traits or actions, homosexuality and transgender status are inextricably
bound up with sex. Not because
homosexuality or transgender status are related to sex in some vague sense or
because discrimination on these bases has some disparate impact on one sex or
another, but because to discriminate on these grounds requires an employer to
intentionally treat individual employees differently because of their sex. <o:p></o:p></span></blockquote><p></p></div><div><i>Id</i>. As the Court explained further:</div><div><blockquote><span style="font-family: "Times New Roman", serif; font-size: 12pt; font-style: italic; font-weight: bold; line-height: 107%;">An employer
musters no better a defense by responding that it is equally happy to fire male
and female employees who are homosexual or transgender. </span><span style="font-family: "Times New Roman", serif; font-size: 12pt;">Title VII liability is not limited to employers who, through the sum of all of
their employment actions, treat the class of men differently than the class of
women. Instead, the law makes each instance of discriminating against an
individual employee because of that individual’s sex an independent violation of Title VII. <b style="font-style: italic;">So just as an employer who fires
both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles
rather than eliminates Title VII liability, </b></span><b style="font-family: "Times New Roman", serif; font-size: 12pt; font-style: italic;"><i>an employer who fires both
Hannah and Bob for being gay or transgender does the same</i></b><span style="font-family: "Times New Roman", serif; font-size: 12pt; font-style: italic; font-weight: bold;">.</span></blockquote></div><div><blockquote><span style="font-family: "Times New Roman", serif; font-size: 12pt; font-style: italic; font-weight: bold;"></span></blockquote></div><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"><o:p></o:p></span></p><div><i>Id.</i> at 1742-43 (emphasis added). Stated differently, it certainly appears the Court addressed and rejected the very argument the<i> U.S. Pastor</i> plaintiffs make.</div><div><br /></div><div>Additionally, in their summary judgment motion, the <i>U.S. Pastor</i> plaintiffs contend that “<i>Bostock</i> did not hold that an employer violates Title VII whenever it discriminates on account of ‘sexual orientation,’” but this argument also appears to be contradicted by <i>Bostock’s </i>logic:</div><div><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"></span></p></div><blockquote><div><p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">When we apply the simple
test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to other men,
would have been fired had he been a woman—we don’t just change his sex. <b><i>Along the way, we
change his sexual orientation too</i></b> (from homosexual to heterosexual). <b><i>If
the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the
employers stress, we must hold sexual orientation constant—meaning we need to
change both his sex and the sex to which
he is attracted.</i></b> So for Mr. Bostock, the question should be whether he
would’ve been fired if he were a woman attracted to women. And because his
employer would have been as quick to fire a lesbian as it was a gay man, the
employers conclude, no Title VII violation has occurred. <o:p></o:p></span></p>
<p class="MsoNormal"><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;">While the explanation is
new, the mistakes are the same. The employers might be onto something if Title
VII only ensured equal treatment between groups of men and women or if the
statute applied only when sex is the sole or primary reason for an employer’s
challenged adverse employment action. But both of these premises are mistaken.
Title VII’s plain terms and
our precedents don’t care if an employer treats men and women comparably as
groups; an employer who fires both lesbians and gay men equally doesn’t
diminish but doubles its liability.<o:p></o:p></span></p></div><div></div></blockquote><div><i>Id.</i> at 1747-48 (emphasis added). Simply put, bisexuality, like homosexuality and transgender status, is by definition a form of sexual orientation. And, according to <i>Bostock</i>, when an employer discriminates against an individual based on other types of sexual orientation, the action amounts to discrimination “based in part on that individual’s sex.” <i>Id</i>. at 1743. </div><div><br /></div><div>In summary, and based on the reasoning in <i>Bostock</i>, the <i>U.S. Pastor</i> plaintiffs’ argument would create a difference without a distinction if the sexual orientation categories of homosexuality and transgender status are “inextricably bound up with sex” and therefore protected under Title VII, but the sexual orientation category of bisexuality is not. Such a position would contravene <i>Bostock’s</i> reminder that, “[a]s enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them.” <i>Id</i>. at 1747.</div><div><br /></div><div>Also of note is the fact that the Fifth Circuit, in the <i>Olivarez v. T-Mobile USA et al</i>. decision issued on May 14, 2021 and covered in my previous blog post, unequivocally stated, "Under <i>Bostock</i>...discrimination on the basis of sexual orientation...is a form of sex discrimination under Title VII." </div><div><br /></div><div>It will certainly be interesting to see how the district court approaches such an argument.</div><div><br /></div><div><span style="white-space: pre;"> </span></div><div><br /></div></div>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-1379068838462154192021-05-22T05:28:00.000-07:002021-05-22T05:28:52.142-07:00Fifth Circuit Opinion Affirming Dismissal of Transgender Employee's Title VII and ADA Claims Provides Valuable Insight into Dismissal Standard<p style="text-align: justify;"><span> The Fifth Circuit's recent opinion in </span><i>Olivarez v. T-Mobile USA, Incorporated; Broadspire Services, Incorporated</i>, No. 20-20463 (May 14, 2021) is interesting for two reasons.</p><p style="text-align: justify;"><span> First, it provides a useful analysis regarding whether, i</span>n disparate treatment cases under Title VII or the ADA, a plaintiff must establish all elements of a <i>prima facie</i> case under <i>McDonnell Douglas</i> to survive a Rule 12(b)(6) dismissal.</p><p style="text-align: justify;"> In <i>Olivarez, </i>the Court, citing to <i>Swierkiewicz v. Sorema N.A</i>., 534 U.S. 506 (2002), said no, but its analysis belies this conclusion. Under <i>Swierkiewicz</i>, as interpreted by the Fifth Circuit, to avoid a 12(b)(6) dismissal, there are two ultimate elements a plaintiff must plead to support disparate treatment claims: (1) an adverse employment action; (2) taken against a plaintiff <i>because of</i> his or her protected status. </p><p style="text-align: justify;"><span> To</span> determine whether the employer took action against the plaintiff <i>because of</i> his protected status (transgender), the Court also cited <i>Chhim v. Univ. of Texas at Austin</i>, 836 F.3d 467, 470 (5th Cir. 2016), wherein it previously determined that although a plaintiff does not have to submit evidence to establish a <i>prima facie</i> case of discrimination under <i>McDonnell Douglas</i> at the 12(b)(6) dismissal stage, <b>the plaintiff must "plead sufficient facts on <u>all</u> of the ultimate elements of a disparate treatment claim</b> <b>to make his case plausible." </b> </p><p style="text-align: justify;"><span> That certainly sounds contradictory.</span><br /></p><p style="text-align: justify;"><span> Finding that the plaintiff </span>failed to plead any facts indicating less favorable treatment than others similarly situated outside the protected class. the Fifth Circuit affirmed the dismissal.</p><p style="text-align: justify;"><span> Second, the case is interesting because it includes a provocative sound bite with no analysis. More specifically, on the second page of the opinion, the Court notes, "</span>An employer discharged a sales employee who happens to be transgender---but who took six months of leave, and then sought further leave for the indefinite future. That is not discrimination---that is ordinary business practice." </p><p style="text-align: justify;"><span> Yet, the Court's opinion does not include an analysis of the length of leave issue or explain what it meant by the phrase, "ordinary business practice." </span><br /></p><p style="text-align: justify;"><span><span> In short, the opinion may be useful to defendants seeking an early dismissal. A copy of the opinion is here: </span></span><span style="text-align: left;">https://www.ca5.uscourts.gov/opinions/pub/20/20-20463-CV0.pdf</span></p><p style="text-align: justify;"><span style="text-align: left;"><br /></span></p><p style="text-align: justify;"><span style="text-align: left;"><br /></span></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-17062389550732767722021-02-22T04:26:00.002-08:002021-02-22T04:29:55.360-08:00New Fifth Circuit Opinion Reminds Employers of the Dangers of Failing to Maintain Accurate Time Records under the FLSA <p style="text-align: justify;">What happens when an employer fails to keep accurate or adequate records of all time worked by an employee?</p><p style="text-align: justify;">Seventy-five years ago, the United States Supreme Court, in <i>Anderson v. Mt. Clemens Pottery Co</i>., 328 U.S. 680, 687 (1946), <i>superseded by statute on other grounds</i>, 29 U.S.C. § 254(a), created a burden-shifting framework for FLSA claims where an employer fails to maintain proper records. More specifically, in those cases, a plaintiff need only show by "just and reasonable inference" that she was an employee, worked the hours, and wasn't paid." <i>Id</i>. </p><p style="text-align: justify;">On February 9, 2021, the Fifth Circuit released its opinion in <i>United States Department of Labor v. Five Star Automatic Fire Protection, L.L.C</i>., No. 19-51119, applying this framework and affirming a bench trial award of nearly $250,000 in damages, including liquidated damages, to employees of a fire-sprinkler installation and service company who claimed they were not compensated for pre- and post-shift work including, for example, time spent loading material onto company trucks. </p><p style="text-align: justify;">In <i>Five Star</i>, the employer required its employees to maintain their own time records, which only included the total number of hours worked at a jobsite, even though they performed pre- and post-shift work and often traveled between jobsites. At the bench trial, the DOL presented six employee witnesses who testified about the activities in which they and others engaged but for which they were not paid. The court found for the DOL, and the employer appealed.</p><p style="text-align: justify;">Affirming the findings of fact on liability and damages, the Fifth Circuit, relying on <i>Mt. Clements</i>, agreed the district court properly relied on the testimony of the six employee witnesses to fill in the "evidentiary gaps" left by the incomplete time records. The Court also rejected the employer's attempt to rely on an after-the-fact chart created from the company President's memory related to different work projects, agreeing that such "evidence" was unreliable. And, the Court noted that all testifying employees stated their lead supervisor either said or implied they shouldn't record pre- and post-shift time worked, which created a de facto policy that they shouldn't.</p><p style="text-align: justify;">In short, the opinion provides a valuable reminder of the importance of understanding the record-keeping and substantive provisions of the FLSA to avoid both liability and liquidated damages findings. The opinion can be found here: <a href="https://www.ca5.uscourts.gov/opinions/pub/19/19-51119-CV0.pdf">https://www.ca5.uscourts.gov/opinions/pub/19/19-51119-CV0.pdf</a></p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><span><span></span></span></p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-17224102418025323362021-02-14T14:13:00.001-08:002021-02-14T14:32:29.714-08:00In Case of First Impression, Federal Court Tackles Issue of Whether the Wearing of BLM Masks is Protected Activity Under Title VII<p style="text-align: justify;">In a case of first impression, a federal judge in Massachusetts recently found that the wearing of Black Lives Matter (BLM) masks by employees at work was not protected activity under Title VII of the Civil Rights Act of 1964, as amended (Title VII). </p><p style="text-align: justify;">In <i>Frith v. Whole Foods Mkt., Inc.</i>, Civil Action No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021), current and former employees of Whole Foods, which has publicly supported the BLM Movement, sued their employer claiming they were discriminated and retaliated against in violation of Title VII when Whole Foods disciplined them for wearing BLM masks in violation of its dress code policy that prohibited employees from wearing clothing with visible slogans, messaging, and/or advertising that was not Whole-Foods-related. </p><p style="text-align: justify;">The plaintiffs, who are from a variety of racial backgrounds, claimed that wearing BLM attire was a demand for better treatment of Black employees and that they continued to wear the BLM masks for the added purpose of challenging what they perceived to be racism and discrimination by Whole Foods for not allowing employees to wear BLM masks. They also pointed out that Whole Foods had allegedly not strictly enforced the policy, permitting at least one employee to wear a Sponge-Bob SquarePants mask.</p><p style="text-align: justify;">Whole Foods moved for dismissal under Rule 12(b)(6) and, except as to one plaintiff's retaliation claim, the Court granted the motion.</p><p style="text-align: justify;">Addressing the race discrimination claim first, the Court began its analysis with the well-established principle that the heart of a Title VII claim is the requirement that the unlawful conduct is "<i>because of</i>" an individual's protected characteristic, in this case, race. Here, the plaintiffs did not allege any facts regarding their own races. More specifically, they did not allege they were disciplined because of their race, or that Whole Foods' application of the policy had a disproportionate impact on employees of any particular race. Instead, they alleged that Whole Foods disciplined them, regardless of their race, for wearing BLM clothing, and that the discipline was content-based and intended to suppress the BLM messaging.</p><p style="text-align: justify;">Recognizing the importance of the BLM Movement, the Court found that, "inconsistent enforcement of a dress code does not constitute a Title VII violation because it is not race-based discrimination and because Title VII does not protect free speech in a private workplace." Additionally, the Court dispensed with the plaintiffs' associational discrimination theory on similar grounds, namely, that plaintiffs failed to allege they were discriminated against on the basis of race, as opposed to race-related messaging. </p><p style="text-align: justify;">In connection with their retaliation claim, plaintiffs argued that wearing BLM attire is protected conduct under Title VII because they were doing so to protest racism and police violence against Black people and to show support for Black employees. Rejecting this argument, the Court noted first, that wearing such attire is not done so "to oppose any practice made an unlawful employment practice" under Title VII, as required by the statute, and second, that wearing BLM attire to challenge what the employees perceived as racism and discrimination for not allowing employees to wear BLM masks was a "somewhat circular" theory. In short, plaintiffs were arguing that they wore BLM masks to protest not being allowed to wear BLM masks. The Court also found, based on facts in plaintiffs' pleading, the lack of a causal relationship between any allegedly protected activity and the discipline, and that plaintiffs "could not have formed a good faith, reasonable belief that Whole Foods' conduct ran afoul of Title VII."</p><p style="text-align: justify;">The decision is important because it tackles a current issue, support for the BLM Movement, in a society polarized by politics and issues regarding race relations and racial injustice. It also highlights important legal concepts, including that Title VII protection exists to protect against unlawful decisions made by employers <i>because of</i> an individual's protected characteristic, and that employees in private workplaces do not have First Amendment protections. </p><p style="text-align: justify;"><br /></p><p style="text-align: justify;"><br /></p>Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-52006200958748882182018-08-08T12:15:00.000-07:002018-08-08T12:20:10.873-07:00A Cautionary Tale About Discharging a Disabled Employee for a Policy ViolationIn its Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act issued in 2002, which hasn't yet been withdrawn or updated as a result of the passage of the Americans with Disabilities Act Amendment Act, the Equal Employment Opportunity Commission (EEOC) opines that an employer is generally <em>not</em> required to provide a reasonable accommodation to an employee who violates a conduct rule where the consequence of the violation is the termination of employment.<br />
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But what happens when an employer denies an employee the reasonable accommodation of a policy modification and then uses that same, underlying policy as a basis to terminate the employee's employment?<br />
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Yesterday, the Sixth Circuit answered that question by affirming a jury verdict in favor of an employee who was terminated for violating Dollar General's "anti-grazing" policy, a policy to which the employee sought (but was refused) a modification due to her diabetic condition. <em>See EEOC v. Dolgencorp, LLC</em>, No. 17-628 (6th Cir. Aug. 7, 2018). <br />
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The facts of the case are straightforward. The employee was a diabetic who asked her manager for permission to keep orange juice at her cash register. The manager refused the request citing the company's anti-grazing policy, and apparently failed to engage in any further dialogue about the possibility of an alternative accommodation.<br />
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During a store audit to address employee theft and shrinkage issues, the employee admitted that on two separate occasions when she was working alone in the store, she'd suffered a hypoglycemic episode, taken a bottle of orange juice from the store cooler, consumed it, and then paid for it. In response, she was fired.<br />
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The employer appealed a jury award of over $700,000 and in a <em>We are not amused</em> decision, the Sixth Circuit affirmed the award.<br />
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First, the Court rejected the employer's "accommodate thyself" defense because the employer failed to provide the employee with any reasonable alternative to keeping orange juice at her register. Second, the Court made clear that "a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him." Third, the Court found that "failing to provide a protected employee a reasonable accommodation constitutes <em>direct evidence</em> of discrimination." (Emphasis added).<br />
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The decision underscores the need for employers to carefully evaluate accommodation requests to determine whether they can, among other things, make policy modifications absent an undue hardship. <br />
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<br />Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-38601573473823261372018-07-29T13:07:00.000-07:002018-07-29T13:07:11.627-07:00Yelp to Post Restaurant Health Inspection ScoresStarting this coming Tuesday, August 31, 2018, Yelp will post restaurant health inspection scores directly on a restaurant's Yelp page.<br />
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Yelp initially launched this program in San Francisco in 2013 and to expand it nationwide, hired a third-party company to trawl through government websites to find the health inspection reports to post.<br />
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Texas is among the states with a health inspection score roll-out date in August. Restaurateurs should review the scores posted by Yelp to ensure they are accurate. Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-46278686450069955742018-05-01T07:25:00.000-07:002018-05-01T07:25:34.609-07:00Restaurant Clients Be Advised---There's a New Health Inspection Grade Website in TownRestaurant health inspection grades have been available to the public for some time, but in Dallas and Fort Worth, they were difficult to locate in the public health data.<br />
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<div style="text-align: justify;">
In case you missed it, the Dallas Morning News (DMN) has just rolled out a new website located at restaurantinspections.dallasnews.com that includes health inspection grades for restaurants in Dallas, Carrollton, Plano, Richardson, and Fort Worth. The site includes three main ways to search: (1) by restaurant name; (2) by issue (such as mold or rodents); and (3) by letter grade (A, B, C, D or F). The DMN reports it hopes to add new cities to the database and has provided an e-mail address for readers to submit suggestions.</div>
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<div style="text-align: justify;">
Counsel for restaurants should advise their clients of the existence of this site to avoid negative publicity and ensure that inspection grades are accurately reflected.</div>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-79290294215329769222018-04-16T14:22:00.000-07:002018-04-16T14:22:53.660-07:00Texas District Court "Assumes" Title VII Protects Transgender Status<div style="text-align: justify;">
The Fifth Circuit has not yet ruled on the issue of whether transgender status is a protected category under Title VII, but earlier this month, a federal district judge in the Southern District of Texas, Houston Division, <em>assumed </em>that it was.</div>
<div style="text-align: justify;">
</div>
<div style="text-align: justify;">
In <em>Wittmer v. Phillips 66 Company</em>, No. H-17-2188 (S.D. Tex. April 4, 2018), the plaintiff sued Phillips 66 claiming it rescinded her job offer based on her identity as a transgender woman and her failure to conform to female sex stereotypes. </div>
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</div>
<div style="text-align: justify;">
Noting the prohibition against gender stereotyping in <em>Price Waterhouse v. Hopkins</em>, 490 U.S. 228, 250-51 (1989) and the Fifth Circuit's absence of guidance on the issue, as well as conflicting opinions from other courts, the Court found recent decisions from the Sixth, Second, and Seventh Circuits "persuasive" and applied them to "assume" a protected status.</div>
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<div style="text-align: justify;">
Despite the assumption, the Court nevertheless granted summary judgment for the employer because the plaintiff could not prove a <em>prima facie</em> case or pretext. </div>
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</div>
<div style="text-align: justify;">
What is interesting about this case is the Court's decision to forego a substantive analysis of the issue as many other courts have done, and instead, rely on case law from outside the Fifth Circuit. Practitioners may be left wondering whether the Court's assumption creates enough of a toehold to use the decision as support for similar cases.</div>
Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-86206285543997169002018-02-12T14:42:00.000-08:002018-02-12T14:42:01.667-08:00Is an Employee on FMLA Leave Entitled to Unemployment Benefits in Texas?<div style="text-align: justify;">
The question of whether an employee on FMLA leave is entitled to apply for and receive unemployment benefits from the Texas Workforce Commission (TWC) is the issue that pits the TWC against Wichita County, Texas in a case currently pending before the Texas Supreme Court.</div>
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<div style="text-align: justify;">
In <em>TWC v. Wichita County, Texas</em>, No. 17-0130, the TWC contends that an employee on FMLA leave was entitled to unemployment benefits because the employee left work, and was therefore unemployed, due to a medically verifiable illness. Wichita County, on the other hand, contends that the Texas Unemployment Compensation Act (TUCA) does not apply to employed individuals on FMLA whose employment is protected by federal law.</div>
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Key to the Court's ruling will be a clarification of what it means to be "unemployed" under the TUCA. Section 207.045 of the TUCA permits a person who has voluntarily left her job due to a medically verifiable illness to receive benefits. Does an employee who exercises her right to FMLA leave become "unemployed" under the TUCA?</div>
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<div style="text-align: justify;">
Wichita County argues that the TWC's position effectively creates a paid leave law in Texas, which the Texas Legislature has expressly and recently declined to do. </div>
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Oral arguments are scheduled for February 28th. </div>
Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-85263562531332149202017-11-02T11:00:00.000-07:002017-11-02T11:00:08.111-07:00Is an Employee's Inability to Read or Understand English a Defense to a Motion to Compel Arbitration?<div style="text-align: justify;">
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. <em>MiCocina, Ltd D/B/A Taco Diner v. Jose Balderas-Villanueva</em>, No. 05-16-01507-CV (Oct. 27, 2017). <a href="http://www.search.txcourts.gov/Case.aspx?cn=05-16-01507-CV&coa=coa05">http://www.search.txcourts.gov/Case.aspx?cn=05-16-01507-CV&coa=coa05</a></div>
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<div style="text-align: justify;">
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, the employee was injured at work when an oven exploded, and sued the employer for damages.</div>
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<div style="text-align: justify;">
The trial court denied the employer's motion to compel arbitration, finding that no contract formation existed and that the employee was misled into signing the document, but the Fifth Court of Appeals reversed and remanded with instructions to grant the motion. </div>
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Key to the appellate court's ruling were the following points:<br />
<ul>
<li><div style="text-align: justify;">
An employer may enforce an arbitration agreement with an at-will employee if the employee received notice of the employer's arbitration policy and accepted it.</div>
</li>
<li><div style="text-align: justify;">
An at-will employee who receives notice of an employer's arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law.</div>
</li>
<li><div style="text-align: justify;">
It was undisputed that the employee's claims fell within the scope of the Mutual Agreement to Arbitrate.</div>
</li>
<li><div style="text-align: justify;">
The Mutual Agreement to Arbitrate did not need to be signed by both parties because it was incorporated by reference in the paper signed by the person sought to be charged.</div>
</li>
<li><div style="text-align: justify;">
The signed Acknowledgment that specifically identified the Mutual Agreement to Arbitrate was evidence of notice.</div>
</li>
<li><div style="text-align: justify;">
Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.</div>
</li>
<li><div style="text-align: justify;">
Illiteracy will not relieve a party of the consequences of his contract.</div>
</li>
<li><div style="text-align: justify;">
If a person is unable to read a contract, it is his duty to find some reliable person to read and explain it to him before he signs it.</div>
</li>
<li><div style="text-align: justify;">
The fact that a person may not be fluent in English does not of itself create the type of confidential relationship that would relieve the person from his duty to read a contract.</div>
</li>
<li><div style="text-align: justify;">
A party does not have a general duty to explain, discuss, or translate an arbitration agreement merely because the subject matter concerns arbitration.</div>
</li>
</ul>
<div style="text-align: justify;">
Here, despite conflicting testimony regarding whether the employee was provided with copies of various documents translated into Spanish, and despite the fact that the employer told the employee to sign the Acknowledgment because it was related to restaurant policies, the appellate court concluded that the employee failed to provide evidence of a fraudulent misrepresentation or trickery.</div>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-3272082628197073362017-10-05T08:50:00.000-07:002017-10-05T08:50:55.136-07:00Seventh Circuit Panel Affirms that the ADA is Not a Medical-Leave Statute<div style="text-align: justify;">
<span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"> 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.<span style="mso-spacerun: yes;"> </span><i style="mso-bidi-font-style: normal;">Severson v. Heartland Woodcraft, Inc</i>., No. 115-3754 (7th Cir. Sept.
20 2017).<span style="mso-spacerun: yes;"> </span></span></div>
<span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"><span style="mso-spacerun: yes;"></span></span><br />
<div class="MsoNormal" style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"> 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 will enable the
employee to work.<span style="mso-spacerun: yes;"> </span>An employee who needs
long-term medical leave cannot work, and thus is not a “qualified individual”
under the ADA.</span></div>
<div class="MsoNormal" style="margin: 0in 0in 8pt; text-align: justify;">
<span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"></span><span style="font-family: "Times New Roman",serif; font-size: 12pt; line-height: 107%;"> The Court noted that a leave of absence “may” be a
reasonable accommodation, provided that the duration of the leave is short
(such as a few days), but squarely rejected the idea that the ADA is a medical
leave statute, or an “open-ended extension of the FMLA.”<span style="mso-spacerun: yes;"> </span>Simply put, an extended leave of absence does
not give a disabled employee the means to work; rather, it <i style="mso-bidi-font-style: normal;">excuses</i> his work.<span style="mso-spacerun: yes;"> </span>An inability
to do the job’s essential functions means that one is not “qualified”; it does
not mean that the employer must excuse the inability.<span style="mso-spacerun: yes;"> </span>This decision follows several others,
including the 2014 <i style="mso-bidi-font-style: normal;">Hwang v. Kansas State
University</i> decision by a panel of the Tenth Circuit, which are providing
employers with much-needed guidance on the issue of leave as a reasonable
accommodation.<span style="mso-tab-count: 1;"> </span><o:p></o:p></span></div>
Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-72784425802132782542017-09-01T06:03:00.000-07:002017-09-01T06:04:42.954-07:00New Texting and Driving Ban Effective Today in Texas<div style="text-align: justify;">
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. </div>
Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-77630160551113202672017-08-21T12:15:00.000-07:002017-08-21T12:15:03.126-07:00Scimitars, Sabers and Samurai Swords, Oh My! Texas’s New Open Carry of Blades Law<span style="mso-spacerun: yes;">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.<span style="mso-spacerun: yes;"> </span>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.<span style="mso-spacerun: yes;"> </span><br />
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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 racetracks; or in or into the secured area of an
airport.<span style="mso-spacerun: yes;"> </span></div>
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The new law provides that a person commits a Class C
misdemeanor if he intentionally, knowingly, or recklessly possesses or goes with
a location-restricted knife into a bar; on the premises where a high school,
collegiate, or professional sporting event is taking place; on the premises of
a correctional facility, hospital, mental hospital, or amusement park; or on
the premises of an established place of religious worship.<span style="mso-spacerun: yes;"> </span></div>
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Whether you’re a swashbuckler or a Samurai, and whether your
blade of choice is the Sword of Gryffindor or a Katana, polish up those sheaths
and scabbards to be ready for September 1<sup>st</sup>.<o:p></o:p></div>
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<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYv879CZaTzSr0ZJDj1X2v0tYcskrq8MaEPS3wQllw_phRQBgHNq-q-GOrXYUcC19KLy4UFrV9tsy2YoT75jFWuJrQ3RJH5h9dWEEghNcaSrxjPNgNmuU0sCY3vrY2fQHY7QHKur2i6Q/s1600/DSCN0326.JPG" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="1200" data-original-width="1600" height="240" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgYv879CZaTzSr0ZJDj1X2v0tYcskrq8MaEPS3wQllw_phRQBgHNq-q-GOrXYUcC19KLy4UFrV9tsy2YoT75jFWuJrQ3RJH5h9dWEEghNcaSrxjPNgNmuU0sCY3vrY2fQHY7QHKur2i6Q/s320/DSCN0326.JPG" width="320" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Blades of Glory</td></tr>
</tbody></table>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-30984270301701060202017-08-14T15:59:00.000-07:002017-08-14T16:22:21.963-07:00Citing Stephen Colbert, the Fifth Circuit Rolls Back Several NLRB Handbook Positions<div style="text-align: justify;">
<span style="font-family: "calibri";">Not long ago, I wrote about how
the National Labor Relations Board’s (NLRB's) positions on various handbook
policies transcended common sense.<span style="mso-spacerun: yes;"> </span>In a
recent opinion, a three-judge panel of the Fifth Circuit Court of Appeals
agreed, holding that the following employer handbook policies <i style="mso-bidi-font-style: normal;">did not</i>, 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. <i style="mso-bidi-font-style: normal;">See T-Mobile USA, Inc. v. National Labor
Relations Board</i>, No. 16-60284 (<span style="font-family: "calibri" , sans-serif; font-size: 11pt; line-height: 107%;">5th</span> Cir. July 25, 2017).<span style="mso-spacerun: yes;"> </span></span></div>
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<span style="font-family: "calibri";"><span style="mso-spacerun: yes;"></span></span><o:p></o:p> </div>
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<span style="font-family: "calibri";">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 reasonable employee reading the rule “would”
construe it to prohibit Section 7 activity.<span style="mso-spacerun: yes;">
</span>A reasonable employee is one who is aware of her legal rights, "but who
also interprets work rules as they apply to the everydayness” of her job.<span style="mso-spacerun: yes;"> </span></span></div>
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<span style="font-family: "calibri";"></span><br /></div>
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<span style="font-family: "calibri";">As I said in my earlier blog, and
as the Court reasoned, <i style="mso-bidi-font-style: normal;">reasonable people</i>
understand the meaning of work rules such as, “treat employees with respect,”
and “don’t fight at work.”<span style="mso-spacerun: yes;"> </span>To drive home
its point, the Court, in a footnote, cited a YouTube clip from Stephen Colbert
mocking the NLRB’s position.<span style="mso-spacerun: yes;"> </span>And if you’re
wondering, the Fifth Circuit doesn’t routinely cite to YouTube in its opinions. </span><span style="font-family: "calibri";">The decision is important for
Texas employers because it reinforces the idea that an employer has the right
to enact “reasonable” work rules.<span style="mso-spacerun: yes;"> </span><span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-75390750161370469952017-05-31T11:04:00.000-07:002017-05-31T11:04:18.719-07:00The Texas Supreme Court Takes an Egg from the Employment Plaintiff's Basket<div style="text-align: justify;">
In its <em>ExxonMobil Corporation and WHM Custom Services Inc. v. Rincones</em> decision issued last week, the Texas Supreme Court held that there is no independent cause of action in Texas for compelled self-defamation. <a href="http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/">http://www.txcourts.gov/supreme/orders-opinions/2017/may/may-26-2017/</a>.</div>
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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 theory.</div>
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In its decision, the Court cited several reasons for its refusal to recognize the claim. First, such a refusal is a natural extension of the well-established rule that if the publication about which the plaintiff complains was consented to, authorized, invited, or procured by the plaintiff, she cannot recover for injuries sustained by reason of the publication. Second, the recognition of such a claim would not only discourage plaintiffs from mitigating damages to their own reputations, but would also enable an employee to unilaterally create an actionable tort against the employer, and third, the compelled, self-defamation doctrine would unacceptably impinge on the at-will employment doctrine. </div>
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In short, employment plaintiffs now have one less claim to assert against employers in Texas.</div>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-41665789241778323432017-05-16T11:33:00.000-07:002017-05-16T11:33:37.465-07:00When Can Employers Expect a Cessation of the NLRB's Handbook Policy Hostilities?<div style="text-align: justify;">
<span style="font-family: inherit;">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.</span></div>
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<span style="font-family: inherit;"></span> </div>
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In <em>Entergy Nuclear Operations Inc. and United Government Security Officers of America, Local 25</em>, 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:</div>
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1. <em>Integrity Code</em> <em>(communications):</em> 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 because it restricts employees in the exercise of their Section 7 rights by prohibiting statements which are merely false, as distinguished from those which are maliciously so. Bottom line: Section 7 protects employees who make false statements. </div>
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2. <em>Information Protection Policy (disclosure of employee information)</em>: provisions that prohibit employees from disclosing "employee information" and "employee records." According to the ALJ, the policies "fail to clarify that they do not prohibit employees from disclosing such information as part of NLRA-protected activity."</div>
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3. <em>Information Protection Policy (use of company name and logo)</em>: employees are prohibited from allowing any outside party to use "the name of any [employer] and any [employer] logo...without prior approval" from management officials. The ALJ found that the employer could not articulate a "business reason" for the restrictions.</div>
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4. <em>Information Protection Policy (recordings):</em> prohibits employees from photographing, video-recording, or audio-recording anything at the facility and/or anything that includes information that the employer deems "confidential" or an "information asset" without approval from the employer. The ALJ found that the employer, which operates a nuclear power plant and must comply with various Nuclear Regulatory Commission regulations, could not articulate a "legitimate business need" for a blanket policy.</div>
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5. <em>Issue Resolution Policy (confidentiality):</em> prohibits employees, without the approval of the senior vice president of human resources, from discussing with, or disclosing to, individuals who do not have a legitimate business reason to know any information collected by the decision-making panel. The ALJ found that a blanket policy such as this one interferes with the employees' Section 7 rights.</div>
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6. <em>Government Investigations Policy (participation):</em> various provisions prohibit employees from answering any questions posed by a governmental investigator without first contacting the company's legal departments, prohibit employees from providing any documents requested by a government investigator without first contacting the company's legal department, and require employees to contact the legal department before contacting a governmental agency about the company's business. Without hesitation, the ALJ found that these provisions "unlawfully interfere with employees' independent communications with the NLRB and its representatives." </div>
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Absent a clear directive from the administration or definitive action by the Board, unionized and non-unionized employers need to continue to ensure that their handbook policies comply with the myriad of restrictions imposed by the NLRB. </div>
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<span style="font-family: Times, "Times New Roman", serif;"></span> </div>
Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-14205824585125546482017-05-12T13:24:00.000-07:002017-05-12T13:25:47.991-07:00Texas Supreme Court Takes Up Important Issues in Same-Sex Harassment Case<div style="text-align: justify;">
<span style="font-family: "calibri";">Currently pending before the Texas Supreme Court is a case
involving three important issues for Texas employers, both public and
private.<span style="mso-spacerun: yes;"> </span>First, to invoke the TCHRA’s
waiver of governmental immunity, must a plaintiff establish but-for causation
found in the third step of the <i style="mso-bidi-font-style: normal;">McDonnell
Douglas</i> burden-shifting framework? Second, what kind of evidence can establish
that same-sex harassment was not just about gender, but because of
gender?<span style="mso-spacerun: yes;"> </span>And third, must a supervisor
actually exercise hiring and firing authority under the United States Supreme
Court’s standard in <i style="mso-bidi-font-style: normal;">Vance v. Ball State
Univ</i>. for the purpose of establishing vicarious liability?</span></div>
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<span style="font-family: "calibri";"><o:p></o:p></span> </div>
<div style="text-align: justify;">
<span style="font-family: "calibri";">In <i style="mso-bidi-font-style: normal;">Alamo Heights Ind.
Sch. Dist. v. Clark</i>, 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.<span style="mso-spacerun: yes;">
</span>In the trial court below, the school district filed a plea to the
jurisdiction, which the trial court denied, and then appealed the denial to the
Fourth Court of Appeals, which upheld the trial court’s ruling.<span style="mso-spacerun: yes;"> </span>The Texas Supreme Court recently agreed to
hear the case.</span></div>
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<span style="font-family: "calibri";"><o:p></o:p></span> </div>
<div style="text-align: justify;">
<span style="font-family: "calibri";">Both sides weave vastly different stories in their
briefing.<span style="mso-spacerun: yes;"> </span>The school district claims that
the trial court and the Fourth Court of Appeals erred, and should have: (1)
required Clark to prove but-for causation to survive the plea to the
jurisdiction; (2) determined that Clark was unable to prove her sex harassment
claim because the harassment was about gender, but not based on gender; and (3)
found that Clark’s “supervisor” was not a “supervisor” in accordance with the <i style="mso-bidi-font-style: normal;">Vance</i> standard.</span></div>
<div style="text-align: justify;">
<span style="font-family: "calibri";"><o:p></o:p></span> </div>
<div style="text-align: justify;">
<span style="font-family: "calibri";">In turn, Clark: (1) disputes that she is required to prove but-for
causation to survive the plea to the jurisdiction, and instead claims she must
only establish a <i style="mso-bidi-font-style: normal;">prima facie</i> case; (2)
claims that the evidence, which includes lewd comments and touching,
establishes that the harassment was based on sex; and (3) contends that one of
the harassers was a <i style="mso-bidi-font-style: normal;">de facto</i>
supervisor under <i style="mso-bidi-font-style: normal;">Vance</i>,<i style="mso-bidi-font-style: normal;"> </i>and was also a “supervisor” for other
reasons.<span style="mso-spacerun: yes;"> </span></span></div>
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<span style="font-family: "calibri";"><span style="mso-spacerun: yes;"></span><o:p></o:p></span> </div>
<div style="text-align: justify;">
<span style="font-family: "calibri";">If the school district is right about the jurisdictional
issue, plaintiffs seeking a waiver of sovereign immunity under the TCHRA will
face a high burden early in the litigation when challenged by a plea to the
jurisdiction.<span style="mso-spacerun: yes;"> </span>If Clark is right about
her same-sex harassment claim, then the Court could arguably, expressly or
implicitly, expand the evidentiary routes for a plaintiff to establish
harassment <i style="mso-bidi-font-style: normal;">because of</i> gender.<span style="mso-spacerun: yes;"> </span>And finally, the Court’s decision about the
scope of authority required to establish “supervisor” status, if reached, could
either expand or contract the pool of individuals who can subject an employer to
vicarious liability. <o:p></o:p></span></div>
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Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0tag:blogger.com,1999:blog-21345986055386203.post-52536923517313472152017-04-21T07:14:00.000-07:002017-04-21T07:17:42.030-07:00Slow Death on the Vine? 5th Circuit Grants Second Extension in Overtime Suit<div style="text-align: justify;">
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.</div>
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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. </div>
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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 overtime rules in the future.</div>
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<br />Dallas Hospitality Employment Lawyerhttp://www.blogger.com/profile/07020813769341588779noreply@blogger.com0