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

Texas is known for its business/employer-friendly legal climate.  In a bill passed by the Texas Legislature, the climate just got friendlier.  HB 274, sent to the Governor for signature, requires the Supreme Court of Texas to adopt rules providing for the early dismissal of causes of action that have no basis in law or fact and provide for the shifting of litigation expenses to the losing party filing such cases.

The bill requires the Supreme Court to create procedural rules to create a state court motion to dismiss.  The motion to dismiss is to be considered without the production of evidence.  Presumably, this will be similar to Federal Rules of Civil Procedure 12(b)(6) (dismissal for failure to state a cause of action) and 12(c) (for judgment on the pleadings).  Trial courts will be required to rule on the motions within 45 days of filing and to award to prevailing parties their costs and attorney's fees.  The bill does not define "prevailing party."  The bill also provides that a trial court's granting or denial, in whole or in part, of a motion to dismiss shall award a prevailing party its costs and reasonable attorney's fees.  Unanswered is the question of "who is a prevailing party?"; "who is a prevailing party when the motion is granted in part and denied in part (i.e., both parties prevail on parts of the motion)?" and "whether a plaintiff who prevails on the motion to dismiss (i.e., the defendant's motion is denied) is a prevailing party entitled to fees and costs?"

The bill passed by the Legislature also creates appellate jurisdiction over certain appeals of controlling questions of law prior to a final judgment.  This is similar to a federal statute that provides for interlocutory appeals of controlling questions of law where a substantial ground for difference of opinion exists and the immediate appeal of the trial court's order may result in the termination of the litigation.

The bill is effective September 1, 2011 and applies to most civil actions filed on or after that date.  You can access the text of the bill here.

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There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA.  Today I read about a potential consequence I had not been able to imagine. 

Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality."  This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)?  I think the answer, despite what Congress intended, is probably "yes".

First, is hypersexuality or severe anxiety a disability?  The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders.  Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V.  (check) 

Second, does it substantially affect a major life activity?  The EEOC's regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively.  Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems.  Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee's ability to think or concentrate?  (check)

Third, are reasonable break times to relieve stress reasonable?  Unless the employer can show undue hardship, probably so.  Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals.  Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship.  (check).

Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission.  Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer.  This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability.  Did Congress go too far when it passed the ADAAA?

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In a suit you don't see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC's Complaint:

Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life activities of, including but not limited to, reaching, lifting, and performing manual tasks.  Charging Party was hired by the [Starbucks] as a barista, a customer service position.  The job description for the barista position stated that no prior experience was required. . .  On or about July 30, 2009, Charging Party requested the use of a stool and/or small step-ladder as a reasonable accommodation to enable her to perform the essential functions of her job.  With reasonable accommodation, [she] would have been able to perform the essential functions of her job; to operate the cash register and prepare beverages.

After the Charging Party requested a reasonable accommodation, [Starbucks] failed or refused to engage in the interactive process and failed or refused to provide the Charging Party with a reasonable accommodation.  On or about July 30, 2009, [Starbucks] terminated Charging Party's employment, claiming that she would be a danger to customers and employees.

In my quick, and admittedly non-exhaustive research while writing this post, individuals suffering from achondroplastic dwarfism have not fared well in suits filed under the ADA.  However, with the relaxed standard for qualifying for "disabled" status under the Americans with Disabilities Amendments Act and its accompanying regulations (see post), the EEOC may have a stronger hand in this case if it can overcome Starbucks apparent "direct threat" defense.

You can review a copy of the EEOC's complaint here.

UPDATE:  On August 16, 2011, Starbuck entered a Consent Decree with the EEOC where it agreed to pay $75,000 to settle the charges of discrimination.  You can see all of the terms of the Consent Decree here.

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The EEOC published its final regulations interpreting the ADA Amendments Act on March 25, 2011.  Consequently, those regulations become effective on March 24, 2011.  The effect of the Act and these regulations is that large numbers of employees will qualify as disabled under the law thereby triggering an increased number of applicants and employees who may be eligible for reasonable accommodations.  Here are a summary of the regulations:

1. Defines "major life activities" broadly to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and the operation of a major bodily functions such as the immune system, special sense organs and skin, normal cell growth and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive systems.
2. Clarifies that the term "substantially limits" is not to be a demanding standard; should be construed expansively; the impairment's limitations should be viewed in their active, rather than remissive, state; mitigating measures should not be considered; and the examination should not usually require scientific, medical or statistical analysis.
3. Identifies impairments that will almost always substantially limit a major life activity such as:  deafness, blindness, intellectual disability, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, depressive disorder, bipolar disorder, OCD, schizophrenia, muscular dystrophy. 
4. Confirms that temporary or episodic conditions (including those in remission) may qualify as disabilities and that it is appropriate to consider the additional time, effort or pain the employee experiences in performing a major life activity in determining whether it is substantially limited (i.e., the conditions under which the individuals performs the activity).
5. Confirms that individuals qualifying as "disabled" only under the "perceived as" prong are not entitled to reasonable accommodation but those who are disabled due to "actual disability" or a "record of disability" are entitled to reasonable accommodations that do not cause undue hardship.

 You can access a full copy of the regulations here.

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I have written some of the disadvantages of arbitration over other procedural methods of resolving cases such as waivers of jury trial.  (See post and post).  However, in an opinion from the Supreme Court of Texas, one disadvantage of arbitration (i.e., the limited appellate review of arbitration awards that is available) can be minimized where the parties draft their agreement to apply the Texas General Arbitration Act (TAA) rather than the Federal Arbitration Act (FAA).

In Nafta Traders, Inc. v. Quinn, an arbitrator found for the plaintiff in a sex discrimination case.  The arbitration agreement contained a provision limiting the arbitrator's authority such that he lacked "authority (i) to render a decision which contains a reversible error of state or federal law, or (ii) to apply a cause of action or remedy not expressly provided for under existing state or federal law."

The employer sought to vacate the arbitration award claiming that the arbitrator exceeded his authority by rendering a decision containing reversible error.  The issue tackled by the Supreme Court of Texas was whether the TAA precludes an agreement for judicial review of an arbitration award for reversible error, and if not, whether the FAA preempts enforcement of such an agreement.  The Court held that parties may, pursuant to the TAA agree (subject to limits) to expanded judicial review of arbitration awards and that the FAA did not preempt such a conclusion.

Consequently, parties in Texas are free to agree that arbitration awards made subject to state law may be reviewed on a more expanded basis than awards rendered under the FAA.  However, the scope of that expanded judicial review is not without limits.  As the Court stated:

arbitration parties cannot agree to a different standard of judicial review than the court would employ in a judicial proceeding involving the same subject matter.  '[A]n arbitration agreement providing that a 'judge would the award by flipping a coin or studying the entrails of a deal fowl' would be enforceable.'

Moreover, to have a meaning judicial review the Court cautioned parties that they will need to be able to submit "a sufficient record of the arbitral proceedings, and complaints must have been preserved, all as if the award were a court judgment on appeal."  Consequently, some of the perceived advantages of arbitration (i.e., reduced cost, less formal etc.) will have to give way to parties that want to preserve a right to expanded judicial review because proper objections will have to be preserved and a transcript of the proceeding made.  In any event, employers who use arbitration as a form of alternative dispute resolution made consider making those agreements subject to state law so that they can take advantage of opportunities for judicial review.  Employers should keep in mind that, unlike the FAA, the TGAA requires that agreements to arbitrate personal injury (and like tort claims) be made only after the cause of action has accrued thereby excluding some claims from arbitration that would be covered by the FAA. 

You can access a copy of the concurring opinion here.

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Today the U.S. Department of Labor announced publication of a time keeping App for smart phones --the DOL -Timesheet.  Employees can download the free App through iTunes and can be used with the iPad, iPhone and iTouch.  The App is an electronic timesheet that allows employees to record their hours worked and calculate the amount of wages (including overtime) the employee may be owed by the employer.

The App allows employees to track multiple employers; input time manually or start and stop work time automatically; track meal period and other breaks and can even e-mail reports of the hours worked that are already converted into Excel format.  Finally, the App contains a glossary explaining common wage and hour terms and even a function to contact the Department of Labor.  DOL Timesheet is programmed for FLSA compliance; however, I would expect state wage and hour divisions or enterprising wage and hour class action counsel to develop similar Apps that would apply state wage and hour laws.

DOL Timesheet is another example (like the private attorney referral program --Bridge to Justice) of the Department's attempt to make it easier for employees to pursue claims against employers for wage and hour violations.  Employers must be vigilant to ensure that they are properly paying employees for all hours worked and at appropriate rates of pay for those hours.

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