Texas Employment Law Update : Texas Employment Lawyer & Attorney : Russell D. Cawyer : Kelly Hart & Hallman Law Firm : Dallas TX Labor Updates

Texas has a reputation for being business friendly.  More often than not, the Texas Legislature refrains from passing legislation providing solutions for nonexistent problems.  However, a recent bill, passed by the Texas House and submitted to the Texas Senate would prohibit Texas employers from requesting social media user names and passwords from applicants and employees, addresses a problem that, in my opinion, does not exist in the Texas workplace. 

HB 318 makes it an unlawful employment practice for an employer to require or request an employee or applicant disclose a user name, password, or other means for accessing a personal account of the employee or applicant, including a personal e-mail account or a social networking website account or profile.  The bill does not prohibit employers from enforcing policies regarding the appropriate use of employer-supplied devices or use of devices (employer provided or personal) during work hours; from accessing publicly available or lawfully obtained information or monitoring employee usage of employer-provided devices.  The bill exempts law enforcement agencies, employees of financial services companies and situations where the employer and employee enter into a contractual agreement where the employees consents to the disclosure of a user name and password of a personal social media account.  

HB 318 appears to create a new private right of action against Texas employers because it makes the request or requirement a prohibited practice under the Labor Code akin to discriminating against applicants or employees on the basis of race, sex, religion, age and other prohibited categories.  HB 318's amendment of the Labor Code would allow new causes of action to be filed against employers who violate the prohibition.  Moreover, HB 318 contains no exception for employers to require employees who are the subject of an internal investigation of harassment, violation of law or company policy to provide user names and passwords to social media accounts that are the subject of an investigation.  The bill also precludes employers from requesting or obtaining user names or passwords for social media accounts that are accessed by the employee through employer-owned or provided electronic devices.

In nearly 18 years of practice, I have never had an employer ask if it was legal to request or require an employee or applicant to provide a social media password.  Not only have I never had an employer ask the question, I have never been involved in any case where the employer requested an applicant or employee to provide a social media password.  In the Business and Industry Committee testimony on HB 318, there was no evidence of the prevalance of Texas employers who request or require employee user names or passwords of social media accounts --only anecdotal, second-hand accounts of such instances.

Can a Texas employer presently ask that applicants and employee provide social media user names and passwords?  Absolutely.  Can Texas employer currently separate an employee who refuses to provide those passwords?  Absolutely.  Can an employee resign who do not want to provide his or her passwords?  Absolutely.  But are Texas employers doing this in practice? Not in my experience.  

House Bill 318 attempts to remedy a problem that does not really exist.  It should continue to do so without HB 318. You can review the text of HB 381 here.

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

In what could become an important case for employers faced with FLSA wage and hour collective actions, the United States Supreme Court held that a named plaintiff who rejects an offer of judgment for full relief before any other party joins the action cannot continue to pursue the claims on behalf of the putative class because the dispute between the named plaintiff and employer has become moot.  

In Genesis Healthcare, the plaintiff was a registered nurse who brought suit on her behalf, and on behalf of all similarly situated individuals, alleging that her health care employer automatically deducted a thirty minute meal period even though the nurses were regularly required to work through their lunches or perform compensable work during those breaks. When served with the action, the employer made a offer of judgment (i.e., offering to let the court enter judgment against it) for the full amount of the plaintiff's individual claim ($7,500) plus reasonable and necessary attorney's fees as determined by the Court.  When the plaintiff did not respond to the offer, the employer moved to dismiss the action arguing to the court that the controversy was moot (i.e., there was not longer an actual dispute because the employer conceded judgment).  The trial court determined that since the offer fully compensated the plaintiff for her damages and no other party had joined the lawsuit as a party plaintiff, the dispute was moot and dismissed it.

The Third Circuit Court of Appeal reversed the trial court's judgment observing that while the named plaintiff's individual claims were moot, her collective action was not and that allowing an employer to strategically pick off named plaintiffs with strategic settlement offers would frustrate the goals of collective actions.

The U.S. Supreme Court majority held that when a named plaintiff rejects (or in this case ignores) an offer of judgment that offers full relief and no other potential plaintiff has joined the FLSA collective action, the dispute is moot and must be dismissed. In an unconventionally written dissent, Justice Kagan (joined by three Justices) criticized the majority opinion for side-stepping the real issue in the case.  In Justice Kagan's opinion, she explained that the real issue in the case was whether an ignored or rejected offer of judgment moots a controversy. 

Because the parties stipulated (and the Court assumed) that the offer of judgment constituted full relief thereby mooting the named plaintiff's individual claim, there are several issues that will need to be resolved by the lower courts.  For example, unanswered by Genesis Healthcare is what offer constitutes an offer of full relief in the context of a putative FLSA collective action.  Also unresolved is an apparent circuit split as to whether an unaccepted offer of judgment moots an entire dispute in such a case.  

You can download a complete copy of Genesis Healthcare Corp. v. Symczyk here.

Follow me on Twitter@RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Texas law only recognizes a whistleblowing cause of action for public employees that, in good faith, report violations of law to an appropriate law enforcement authority. In two cases reported last month, the Supreme Court of Texas clarified that internal reports of violations of law, even if made in good faith, to officials having purely internal authority to regulate the employer’s own compliance with the law, as opposed to the authority to enforce, investigate or prosecute violations of law against third parties, do not qualify as protected whistleblowing reports.

In UTSWMC v. Gentilello, the plaintiff claimed that he was terminated for complaining to management that trauma residents at Parkland Hospital (in Dallas) were treating and operating on patients without the supervision of an attending physicians in violation of Medicare and Medicaid requirements. In TAMUK v. Moreno, the plaintiff claimed that she was terminated because she reported to the TAMUK president that her supervisor’s daughter was receiving in-state tuition in violation of state law. 

In both cases, the individuals to whom the plaintiffs reported only had authority to oversee the employer’s (and its employees) own compliance with various laws and regulations. This authority, the Court held, did not amount to the power to regulate and enforce the law. A report is only a protected whistleblowing report where it is made to an entity that has the “authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, of must have authority to promulgate regulations governing the conduct of such third parties.”

You can download Texas A&M University –Kingsville v. Moreno here.

You can also download University of Texas Southwestern Medical Center at Dallas v. Gentillo here.

Follow me on Twitter@RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Yesterday the Fifth Circuit Court of Appeals affirmed, a judgment for an employer who was sued by its employees for travel time that the employer did not include as working time.   Its a complicated set of facts and you can read Griffen v. S&B Engineers and Constructors, Ltd. here if you're interested.  While most employers don't have travel time issues nearly as complex as the Griffen case, it provides sufficient reason to review the general rules about when travel time constitutes working, compensable time for nonexempt employees. There are essentially four general rules:

1. Regular Home-to-Work: Regular home-to-work commuting time is not compensable. Consequently, an employee’s travel time from the employee’s home to her regular place of business does not count as hours worked. However, where the employee’s workday begins and ends at home such as where the employee drives co-workers to work in a company-owned vehicle at the employer’s request or where the employee has to run errands on behalf of the employer on the way to work, such time might be compensable if it integral and indispensable part of the employee’s principal duties; is required by the employee and/or is more than de minimus.
2. Special One-Day Assignment: Travel time spent in the commute to a one-day (non-overnight) special assignment in another city, away from the normal fixed location of work, may be considered working time. The employer should include the commuting time less that amount of time the employee normally spends commuting from home to the regular fixed location of work. 
3. Travel as Part of the Job: Travel time for employee who must travel as part of their regular, principal duties are included as hours worked. For example, the hours that an employee who is tasked with visiting different locations of the employer or customers during the course of the business day, spends commuting between those locations are hours worked. The employer is generally permitted to deduct from those hours worked an amount of time equal to the average normal commute time immediately prior to the first visit of the day and after the last visit of the day 
4. Overnight Travel: Travel time that takes an employee away from home overnight is called travel away from home. Travel time occurring during the employee’s regular work hours, whether on regular workdays or corresponding not work days is compensable. Travel time occurring outside those regular working hours is not compensable unless the employee is required to perform work while traveling. The DOL’s current enforcement position is to ignore travel time occurring outside the normal working hours as a passenger on a plane, train, automobile, boat or bus as working time unless the employee is required to work while engaged in such travel.

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week the Texas Legislature opened its 83rd regular session.  The Texas Legislature meets every other year and only for 140 days.  Here are the labor and employment related bills that have been introduced that may eventually effect Texas employers.  I will supplement this post with newly filed bills during the session.

HB 372 (Deshotel) (Relating to establishing the Workplace Prevention Fraud Act; providing penalties)

HB 418 (Farias) (Relating to leave for certain veterans returning to state employment)

HB 342 (Marquez) (Relating to employees of or applicants for employment with school districts who have been convicted of or pled guilty to certain offenses)

HB 318 (Giddings)/SB 118 (Hinojosa)  (Relating to prohibiting an employer from requiring or requesting access to the personal accounts of employees and job applicants through electronic communication devices; establishing an unlawful employment practice)

HB 298 (Rodriguez, E) (Relating to prohibiting employer retaliation against employees who seek recovery of unpaid wages and procedures in wage claim hearings conducted by the TWC; providing administrative penalties)

HB 285 (Zedler) (Relating to prohibiting discrimination by public institutions of higher education against faculty members and students based on their conduct of research relating to intelligent design)

HB 480 (Alvarado) (Relating to leave for certain state employees who are attending educational activities of their children.

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Since the shooting this weekend in Newtown, Connecticut, I have received several questions regarding a Texas employer’s right to ban or prohibit firearms on company property.  Without debating the wisdom of such a decision or the likelihood that the mentally ill who generally participate in mass shooting will abide by those restrictions, Texas law generally provides broad property rights to the employer/landowner to control the premises.  However, eighteen months ago the Texas Legislature passed a law prohibiting public and private employers from restricting employees who are concealed handgun license holders, or are otherwise lawfully possessing firearms or ammunition, from transporting or storing firearms or ammunition in the employee's privately-owned, locked car on the employer's premises.  You can access a copy of the law here.

The law lacks a private right of action leaving in question the remedies a disciplined employee can utilize against an employer who has a policy violating the statute and does not prohibit employers from prohibiting non-employees from lawfully possessing firearms on company property.

If you need advice on steps employers can take to attempt to reduce the likelihood of incidents of workplace violence or in interpreting the laws regarding an employer's ability to regulate the possession of firearms on its property, contact our office.  

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last month Washington and Colorado voters passed state laws authorizing the legalization of recreational marijuana use. Given that there are pockets of the United States where the medical or recreational use of marijuana is legal or tolerated under state law, some Texas employers have asked whether it has any effect on their drug testing or substance abuse policies.

For example, an employee testing positive for marijuana may attempt to justify the positive test explaining that he used marijuana while on a weekend trip to a state that has decriminalized marijuana.   The short answer is that these laws have little, if any, effect on employers drug testing and substance abuse policies for their Texas operations and employees. First, Marijuana possession is still unlawful under Texas and federal law. Federal law still criminalizes the possession if this controlled substance even in states that have legalized it. Second, some states have laws that prohibit employers from taking adverse action against employees who engage in lawful off-duty conduct. Texas has no such law.

Consequently, if an Texas employer would take disciplinary action against an employee testing positive for past marijuana usage, recent legislation in other states place no limits on the employer continued ability to discipline employees for that usage even if it was legal where the employee used the substance. 

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a per curiam opinion, the U.S. Supreme Court held that under the Federal Arbitration Act arbitrators, not courts,must determine the enforceability of covenants not to compete when the parties are subject to agreements that call for the mandatory arbitration of disputes.

In Nitro-Lift Technologies v. Howard, two employees left their employment with Nitro-Lift and began working for a competitor. During their employment with Nitro-Lift, the employees parties to employment agreements containing covenants not to compete and provisions requiring the mandatory arbitration of all disputes between the parties. Nitro-Lift served a demand for arbitration on the employees and they responding by commencing a declaratory judgment action in state court seeking to declare the noncompetition provisions unenforceable under state law.

The trial court dismissed the complaint based on the existence of a valid arbitration provision. The Oklahoma Supreme Court, however, issued a show cause order requesting briefing on why the restrictive statutory provisions of Oklahoma state law on the enforcement of noncompete agreements did not dispose of the issues. The Oklahoma high court determined that it had adequate and independent state law grounds to consider the enforceability of the agreement notwithstanding the arbitration provision, and held the agreement unenforceable under Oklahoma law.

On appeal to the U.S. Supreme Court, the Court reversed the Oklahoma Supreme Court. The Court explained that when an arbitration provision is governed by the Federal Arbitration Act, the court has jurisdiction to consider challenges to the arbitration provision, but it is the arbitrator’s jurisdiction to consider all other challenges to the validity of the contract (if the arbitration provision is valid). Because the Oklahoma court assumed the role of the arbitrator in determining that the noncompetition agreements at issue violated state law, the U.S. Supreme Court vacated the decision and remanded the case for further proceedings consistent with its opinion.

You can download a complete copy of Nitro-Lift Technologies v. Howard here.

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Now that the election is over and most of the Affordable Care Act (aka Obamacare) is likely to take effect, some employer will want to revisit the new obligations and requirements of the Act.  On November 30, 2012, our firm is presenting a complimentary webinar titled "Health Care Reform:  What Lays Ahead with the Affordable Care Act?"  My partner, Henry Robinson, will cover the following topics likely to be of interest to any employer that will be covered by the Act:

• Can my company avoid the employer mandate, and if so, how?
• What will and will not actually subject my company to employer mandate penalties and how can they be minimized?
• Can my company expect to avoid all penalties or should we learn to accept them as a cost of doing business?
• Why will the individual mandate impact employers?
• Does my company have any discretion that might help minimize health care costs?
• Will there be any advantage my company can derive from an Exchange?
• Are Tax Credits worth the effort?
• How can my company turn Health Care Reform into a positive?
• Should my company ignore the Cadillac tax until 2018?

You can register for this complimentary webinar here.

Follow me on Twitter @RussellCawyer.

• Email This
• Print
• Comments
• Trackbacks
• Share Link