The Dallas Hospitality Employment Lawyer Blog

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. More specifically, the statute provides that "any person" other than a state actor can bring an action against "any person" who: knowingly engages in [or intends to engage in] conduct that aids or abets the performance or   inducement of an abortion , 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, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of this subchapter. ..(emphasis added). How could this affect employers?   First, how broadly will c...

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.  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: First, the legislature amended Chapter 21 to provide that with respect to sexual harassment , an "employer" is a person who employs 1 or more employees or "acts directly in the interest of an employer in relation to an employee."   What does this mean and why does it matter?   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 indivi...

In what I'll call its Quantum of Evidence decision issued this month, not to be confused with the 2008 James Bond flick, Quantum of Solace , 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 the formation of an agreement is disputed. In Gallagher v. Vokey , 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. Under existing Fifth Circuit precedent, a party resisting arbitration:   bears the burden of showing he is entitled to a jury trial; must make some showing that under prevailing law, he would be relieved of his contractual  obligation to ...

 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.  Here's what Texas employers need to know: 1.     The effective date of the new law is September 1, 2021. 2.     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. 3.    Persons who meet the criteria in #2 above will be able to carry a firearm without 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. 4.     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. 5....

Can private employers enforce mandatory COVID-19 vaccines as a condition of employment? In December 2020, the EEOC said "yes," subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs.   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.   What is interesting about the Court's opinion is the approach to the issue.   First, the Court refused to consider vaccine safety and efficacy in adjudicating the issue, stating they were "irrelevant." Second, and reaffirming Texas's strong public policy related to employment at-will, the Court found that the plaintiffs did not meet the Sabine Pilot exception to at-will employment, which protects employees from being terminated for refusing to commit an illegal act carrying criminal ...

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. 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.  See U.S. v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC , 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. 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...

Last Friday, the Texas Supreme Court, in Aerotek, Inc. v. Boyd et al ., 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. Like many employers, Aerotek uses a computerized hiring application for onboarding.   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.   Once there, the candidate creates a unique user ID and password and selects security questions.   To later log in to the hiring application, the candidate must enter this user ID, password, and security-question combination correctly.   Aerotek’s witness testified that the steps could not be skipped to reach the end of the process, and that Aerotek c...

According to the plaintiffs in U.S. Pastor Council et al. v. Equal Employment Opportunity Commission, et al. , 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. In U.S. Pastor , the plaintiffs contend that Bostock’s interpretation of Title VII does not prohibit discrimination against bisexual employees (as opposed to homosexual or transgender employees specifically referenced in Bostock) as long as the employer regards bisexual behavior or orientation as equally unacceptable in a man or woman .   In support of their argument, the plaintiffs cite the following language from Bostock : Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team.  Assuming the employer would not have tolerated the trait in a man, Title VII stands silent.   Bostock v. Clayton County, Geo...

    The Fifth Circuit's recent opinion in  Olivarez v. T-Mobile USA, Incorporated; Broadspire Services, Incorporated , No. 20-20463 (May 14, 2021) is interesting for two reasons.     First, it provides a useful analysis regarding whether, i n disparate treatment cases under Title VII or the ADA, a plaintiff must establish all elements of a  prima facie case under McDonnell Douglas to survive a Rule 12(b)(6) dismissal.     In Olivarez, the Court, citing to Swierkiewicz v. Sorema N.A ., 534 U.S. 506 (2002), said no, but its analysis belies this conclusion.  Under Swierkiewicz , 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 because of his or her protected status.       To  determine whether the employer took action against the plaintiff...

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 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 a...

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...

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 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 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.   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.  

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...

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...

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...