New Fifth Circuit Opinion Reminds Employers of the Dangers of Failing to Maintain Accurate Time Records under the FLSA

What happens when an employer fails to keep accurate or adequate records of all time worked by an employee? Seventy-five years ago, the United States Supreme Court, in Anderson v. Mt. Clemens Pottery Co ., 328 U.S. 680, 687 (1946), superseded by statute on other grounds , 29 U.S.C. § 254(a), created a burden-shifting framework for FLSA claims where an employer fails to maintain proper records.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."  Id .   On February 9, 2021, the Fifth Circuit released its opinion in United States Department of Labor v. Five Star Automatic Fire Protection, L.L.C ., 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 incl

In Case of First Impression, Federal Court Tackles Issue of Whether the Wearing of BLM Masks is Protected Activity Under Title VII

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).   In Frith v. Whole Foods Mkt., Inc. , 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.     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 challeng

A Cautionary Tale About Discharging a Disabled Employee for a Policy Violation

In 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Accommodation and Undue Hardship under the Americans with Disabilities Act issued in 2002, which hasn't yet been withdrawn or updated as a result of the passage of the Americans with Disabilities Act Amendment Act, the Equal Employment Opportunity Commission (EEOC) opines that an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 not 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. 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? 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 dia

Yelp to Post Restaurant Health Inspection Scores

Starting this coming Tuesday, August 31, 2018, Yelp will post restaurant health inspection scores directly on a restaurant's Yelp page. 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. 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. 

Restaurant Clients Be Advised---There's a New Health Inspection Grade Website in Town

Restaurant 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. In case you missed it, the Dallas Morning News (DMN) has just rolled out a new website located at 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.   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.  

Texas District Court "Assumes" Title VII Protects Transgender Status

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, assumed that it was.   In Wittmer v. Phillips 66 Company , 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.    Noting the prohibition against gender stereotyping in Price Waterhouse v. Hopkins , 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.   Despite the assumption, the Court nevertheless granted summary judgment for the employer because the plaintif

Is an Employee on FMLA Leave Entitled to Unemployment Benefits in Texas?

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.   In TWC v. Wichita County, Texas , 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.   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 ri