The Dallas Hospitality Employment Lawyer Blog

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 April 4, 2018), the plaintiff sued Phillips 66 claiming it rescinded her job offer based on her identity as a transgender woman and her failure to conform to female sex stereotypes.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...

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