Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Category Archives: Case Summaries

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Employers Using Fluctuating Workweek Method of Overtime Compensation Should Memorialize Understandings in Writing

Posted in Case Summaries, Wage & Hour
In Texas, an employer can satisfy its overtime obligation to nonexempt employees whose hours fluctuate from week-to-week and are paid on a salary basis, by using the fluctuating workweek (FWW) method of overtime compensation.  Under the FWW, a nonexempt employee who has hours of work which fluctuate from week to week may be paid a… Continue Reading

Fifth Circuit Affirms Summary Judgment For Drilling Company in WARN Case

Posted in Case Summaries, Layoffs and WARN
With the drop oil prices several years ago, many energy companies conducted reductions in force. Some of those headcount reductions triggered litigation under the Worker Adjustment and Retraining Notification Act (WARN).  WARN requires employers with 100 or more full time employees conducting plant closings and mass layoffs to provide at least 60 days advance notice of… Continue Reading

Fifth Circuit Holds Employer’s No Photography Rule Violated the NLRA but Other Standard Policies Were Lawful

Posted in Case Summaries, Human Resources
Last week the Court reviewed, and largely reversed, a National Labor Relations Board’s (NLRB or Board) order finding that four policies contained in a Company’s employee handbook violated the National Labor Relations Act (the Act). The case is important because the challenged policies are similar to policies contained in many employee handbooks.  Moreover, an employee… Continue Reading

Texas Supreme Court Holds Defendant Attorney Fee Data Not Normally Discoverable

Posted in Case Summaries
In many employment disputes, the recovery of reasonable attorney’s fees is an element a prevailing plaintiff-employee can recover. Some plaintiffs attempt to show the reasonableness of their counsel’s rates and fees by comparing it to the rates and amounts billed by the employer’s counsel. In In re National Lloyds Ins. Co., et al., the Texas… Continue Reading

Texas Supreme Court Rejects Compelled Self-Publication Theory in Defamation Case

Posted in Case Summaries
An element of a defamation claim is that the defamatory statement was published to a third party. Plaintiff-employees sometimes attempt to satisfy this element by arguing that, while the former employer never published any defamatory statements about the employee to a third party, the employee is compelled to self-disclose the reasons for his or her… Continue Reading

Two Day Unpaid Suspension Not a Materially Adverse Action in Title VII Retaliation Case

Posted in Case Summaries, Retaliation
Retaliation cases can be more difficult for employers to defend because “revenge” is a motive easily understood and identified with.  From a purely legal standpoint, retaliation cases are also more problematic to defend because of the wider variety of employment actions that are actionable under a retaliation theory.  In discrimination claims, only ultimate employment actions (i.e., failure to hire, promote, terminate) are actionable.  In… Continue Reading

Employers Using On-line Acknowledgments to Enter Arbitration Agreements May Face Problems of Proof

Posted in Arbitration, Case Summaries
Texas law favors the resolution of disputes using alternative dispute resolution mechanisms such as arbitration.  To compel an employee’s claim to arbitration, the employer need only show that a valid agreement to arbitrate exists and the claims asserted by the employee fall within the scope of the agreement.  Many companies utilize technology such as online applications and… Continue Reading

Fifth Circuit Holds Nonemployee Lacks Claim but Employee Can Recover Emotional Distress Damages in FLSA Retaliation Suit

Posted in Case Summaries, Retaliation, Wage & Hour
The Fifth Circuit recently held that a plaintiff-employee in an FLSA retaliation claim can recover damages for emotional distress but that the statute does not provide a retaliation cause of action for a nonemployee spouse. In Pineda v. JTCH Apartments, LLC, an employee of the apartment complex who did maintenance work around the property and… Continue Reading

Texas Court Holds Employees on FMLA Leave Not Qualified to Receive Unemployment Benefits

Posted in Case Summaries, Unemployment
In a Texas case of first impression, Fort Worth Court of Appeals held that an employee on FMLA leave of absence is not entitled to receipt of state unemployment benefits reversing the Texas Workforce Commission’s administrative decision.  In Texas Workforce Commission v. Wichita County, Texas, a county employee applied for state unemployment benefits when she started FMLA… Continue Reading

Supreme Court Holds Constructive Discharge Administrative Filing Deadlines Commence When Plaintiff Gives Notice of Resignation

Posted in Case Summaries, Discrimination, Retaliation
Plaintiffs and employers often dispute when an employee’s time period for filing a charge of discrimination commences.  Plaintiffs argue that it commences on the date the adverse action is effective (e.g., the termination date) where employers often argue that it commences earlier when the employee is advised of the decision (i.e., notice of termination that is effective… Continue Reading

HR Directors Beware: You Too Can be Sued for FMLA Violations

Posted in Case Summaries, Human Resources, Leave of Absence
A recent case from the Second Circuit Court of Appeals should remind HR Directors (and supervisors) to be particularly vigilant in handling employee FMLA leaves of absence. In Graziadio v. Culinary Institute of America, the appellate court reversed a trial court victory for the employer and the two individual supervisors (one of whom was the HR… Continue Reading

Fifth Circuit Refuses to Enforce Illusory Handbook Arbitration Provision

Posted in Arbitration, Case Summaries
It’s a rare day when a Texas state court or federal court sitting in Texas refuses to enforce an arbitration agreement.  The Texas law is well-developed on this issue and the table is heavily tilted in favor of arbitration.  Consequently, most employer arbitration programs in Texas are enforced.  However, a recent opinion from the Fifth… Continue Reading

Houston Court of Appeals Holds that Allegation of Constructive Discharge Must be Included in the Charge of Discrimination

Posted in Case Summaries, Race, Retaliation, Sex and Gender
In an opinion likely to prove useful to employers defending a termination based on a constructive discharge theory, a Houston Court of Appeals held that a resigning employee whose charge of discrimination lacks an allegation of constructive discharge, fails to exhaust his administrative remedies on that theory.  In court of appeals opinion, Parker was an African American pharmacy supervisor for the… Continue Reading

Court of Appeals Holds that Notes of Counsel’s Communications with EPL Carrier are Privileged

Posted in Case Summaries
In an important case for any employer that has Employment Practices Liability (EPL) coverage (and lawyers that represent clients with EPL insurance), the Dallas Court of Appeals recently held that the communications between an employer’s in-house counsel and its EPL insurance adjuster were privileged communications and exempted from discovery.  In In re Texas Health Resources, the… Continue Reading

Texas Statutory Damages Caps Need Not Be Pled As Affirmative Defense

Posted in Case Summaries, Discrimination, Harassment, Retaliation
In a non-employment case that is nonetheless important for labor and employment lawyers, the Texas Supreme Court has held that statutory damage caps under the Texas Civil Practice and Remedies Code need not be plead as an affirmative defense by the defendant.  While the case applies to the damage caps of Chapter 41 of the… Continue Reading

Texas Supreme Court Reverses Million Dollar Verdict in Retaliation Case

Posted in Case Summaries, Retaliation
Last week the Texas Supreme Court reversed a $1 million jury verdict in a retaliation case arising under state law. In San Antonio Water Systems v. Nichols, the court held that the former employee’s confrontation of a male executive about his repeated lunch invitations to other female coworkers occurring three years before the plaintiff’s termination… Continue Reading

Fifth Circuit Resolves Intra-Circuit Split on Important ADA Issue

Posted in Case Summaries, Disability, Discrimination
Last month the Fifth Circuit resolved an intra-Circuit split on the appropriate prima face case that should be used in a discrimination case under the Americans with Disabilities Act.  In EEOC v. LHC Group, Inc., the EEOC brought suit on behalf of a home health field nurse who was terminated after she was rendered unable… Continue Reading

Texas Supreme Court Provides Defendants with Halloween Discovery Treat; Not Trick

Posted in Case Summaries, Discrimination
Last Friday, Halloween, the Texas Supreme Court delivered defendants a “treat” in the form of a mandamus opinion articulating the standard for when discovery requests seeking information related to claims other than the plaintiff’s claims crosses the line from seeking relevant information into an impermissible fishing expedition. In In re National Lloyds Insurance Company, the… Continue Reading

I Quit! Constructive Discharge Serves as Substitute for Adverse Employment Action

Posted in Age, Case Summaries, Discrimination
An essential element of most employment discrimination claims is that the employee suffered an adverse employment action. An employee who resigns often has difficulty making out a prima facie case of discrimination. An exception to this general rule is where the employee suffers a constructive discharge. Stated another way, where the employee can prove that the employer,… Continue Reading

Employee Wins Reversal of Religious Discrimination Defeat at the Fifth Circuit

Posted in Case Summaries, Reasonable Accommodation, Religion
Last week I wrote about a religious discrimination case where an employer snatched victory from the jaws of defeat at the Fifth Circuit Court of Appeals. This week, we have a Fifth Circuit opinion where the court took away an employer’s victory in another religious discrimination case and sent the case back to the trial court… Continue Reading

Texas Supreme Court Holds that Forfeiture Provision In Incentive Plan Not A Noncompete

Posted in Case Summaries, Noncompetes and Restrictive Covenants
I wrote about the case of Drennen v. Exxon Mobile over a year ago.  Drennen was the case of the Exxon executive who forfeited millions of dollars in incentive compensation when he left Exxon to work for a competitor.  You can read the background of the case here.  Today, the Texas Supreme Court held that a forfeiture clause contained… Continue Reading