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.

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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.

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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.  

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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. 

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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.

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My colleague, Alison Rowe, is what I affectionately call a horse lawyer.  Actually, Alison practices Equine Law (which broadly includes a diverse area of transactional and litigation issues involving farm, ranch, agricultural and real and personal property issues) and is recognized as a "go to"  authority on this subject area in Texas.  She also happens to publish the award winning Equine Law Blog.  This week Alison agreed to guest post an article on a legal subject she and I have been debating for weeks and that is the breadth of the immunity that may be afforded certain farm and ranch employers in the state of Texas.  Without further introduction, here is Alison's take on thescope of employer immunity under the Texas Farm Animal Limitation of Liability Act.

By Alison Rowe

If you have been sued by a worker whose injuries resulted from inherent risks associated with farm animals, you may be able to successfully assert the defense of immunity from liability under Chapter 87 of the Texas Civil Practice & Remedies Code (“Chapter 87”). 

Passed in 1995, Chapter 87 (formerly entitled, “Texas Equine Limitation of Liability Act”) originally only afforded immunity in suits arising from equine activities. Chapter 87 (now entitled “Texas Farm Animal Limitation of Liability Act”) was amended in 2011 to, among other things, expand its applicability to suits involving all farm animals. 

The Supreme Court of Texas interpreted the pre-amendment version of Chapter 87 for the first time in Loftin v. Lee (Tex. 2011). The Court construed Chapter 87 broadly, stating,

The Equine Act is a comprehensive limitation of liability for equine activities of all kinds…The Equine Act applies to all ‘participants’”. [Emphasis supplied].

Though the Supreme Court has never directly addressed the issue of whether Chapter 87 applies to suits brought by employees or independent contractors, two courts of appeals have weighed in in favor of employers, at least where the injured plaintiff was found to be an independent contractor. Here is a summary of the three appellate cases that have addressed the issue:

1) Johnson v. Smith, 88 S.W.3d 729 (Tex. App. – Corpus Christi 2002, no pet.)-- The Corpus Christi court of appeals acknowledged that an independent contractor in charge of breeding and handling stallions was a participant under Chapter 87. As such, the employer in that case was found to have appropriately raised the defense of immunity under Chapter 87. Johnson was not appealed to the Supreme Court of Texas. For more information, see this post and this post.

2) Dodge v. Durdin, 187 S.W.3d 523 (Tex. App. – Houston [1st] 2005, no pet.)-- The 1st Court of Appeals held that Chapter 87 does not apply to an employer - employee relationship. Citing its review of legislative intent, together with the duties assigned to Texas employers under the Texas Workers’ Compensation Act, the 1st Court of Appeals held that, “the Equine Act applies to consumers and not to employees and that Dodge is therefore not a ‘participant’ under the Equine Act.” Dodge was not appealed to the Supreme Court of Texas. For more information, see this post and this post.

3) Young v. McKim, No. 14-11-00376-CV, 2012 WL 1951099 (Tex. App.—Houston [14th] May 31, 2012, pet. denied)--The Fourteenth Court of Appeals determined that Young was an independent contractor, not an employee, and affirmed the employer’s summary judgment under Chapter 87. The court did not reach the issue of whether Chapter 87 would have applied had Young been an employee. Citing the Supreme Court’s broad interpretation of Chapter 87 in Loftin, the Fourteenth Court disagreed with the discussion in Dodge suggesting that Chapter 87 only applied to “tourists and other consumers of equine activities.” Young was appealed to the Supreme Court of Texas, but the petition for review was recently denied. More information can be found here and here.

Until the Supreme Court or another appellate court takes up a case specifically involving an employer-employee relationship, plaintiff’s lawyers continue to argue that a nonsubscriber employer should not be afforded the benefits of Chapter 87, or any other defense not specifically enumerated in the Workers’ Compensation Act. In other words, plaintiff’s lawyers will continue to cite Dodge in cases involving employees, in an effort to get around Chapter 87. 

I personally disagree with the reasoning in Dodge, and so might the Supreme Court. In a recent tort case involving a hospital employee, the Supreme Court was willing to allow a tort-reform statute to override Workers’ Compensation Act’s limitations on non-subscriber defenses. For more information, see this post. 

The Legislature has also expressly exempted certain farm or ranch workers from the provisions of Workers’ Compensation Act altogether, as long as the employer has a payroll of less than $25,000 or fewer than three employees. See Section 406.091 of the Texas Labor Code. This issue seems to have been completely ignored in Dodge.

Texas farm and ranch employers should be sure to raise Chapter 87 as a defense in farm animal-related injury cases. However, until the Supreme Court takes up this issue, employers should not rely completely upon Chapter 87 to provide immunity from suits brought by employees or independent contractors.

Farms and ranches can take several steps to minimize liability risk in this area, including 1) procuring insurance to cover employee or independent contractor injuries; 2) having workers sign liability releases; 3) posting the applicable warning signs referenced in Chapter 87; and 4) including the applicable Chapter 87 warning language in all written agreements with workers.

Follow Alison @alisonmrowe

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Yesterday, I had the privilege of speaking to the Texas Society of CPAs, Tarrant County Chapter, Nonprofit Study Group on current employment law issues affecting nonprofit organizations. Some of the topics we covered included the use of volunteers and unpaid interns by nonprofit organizations, proper classification of independent contractors and employees, and employment policies that are useful for nonprofits to adopt.  

If you were unable to attend the luncheon, but are interested in reviewing the materials, they are available to download here.  

Follow me on Twitter @RussellCawyer 

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Last week I had the privilege of volunteering at my firm's pro bono legal clinic at the U.S. Department of Veterans Affairs.  The clinic provides pro bono legal services and advice to our country's veterans.  The veterans who served have a wide variety of need for legal advice --primarily in the area of family law, estate and probate, employment and criminal law.  It was my privilege to be able to assist five different veterans and their families who collectively served in every conflict since the Korean war.

While most employers cannot provide pro bono legal services to our veterans, one of their biggest needs is employment opportunities.  The U.S. Department of Veterans Affairs provides a variety of services that will assist employers in hiring and retaining veterans such vocational rehabilitation and Vetsuccess programs.  Similarly, the 501(c)(3) Hire Heros USA assists in creating job opportunities for US military transitioning service members, veterans, and their spouses through personalized employment training and corporate engagement.

When you have hiring needs, consider whether you can make that opportunity available to a military veteran.  Those men and women served our country and each of us should do what we can to thank them for their service. 

Follow me on Twitter @RussellCawyer.

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This morning I heard about a new service offered by a Lubbock, Texas company that raised my eyebrows--nude maid service.  I've heard of a lot of bad employment relations ideas in my career, but on my drive to work this morning, I was hard pressed to think of one that was worse than this one.   Legal pitfalls apart and having gone to law school in this very conservative West Texas community, I cannot imagine this business succeeds.  I mean, when I was in law school, Lubbock was so conservative that it was a "dry" town and you had to leave the city limits above 89th Street to buy beer (although I understand that since has changed).  I also tried to image all of the impediments this "business" will face.  For example, how will the company obtain essential and necessary insurance?  Who would write even general liability coverage let alone EPLI insurance.  Certainly law enforcement will provide the company with close scrutiny to ensure the "maid service" is not a front for other nefarious activity.  Finally, can you say "potential for sexual harassment" of the employees/independent contracts?  

By the time I arrived a work I had yet to think of a worse employment relations idea for a business that I remembered actually being implemented.  If you can think of a employment relations idea worse than nude maid service, leave it in the comments.

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I like to try cases to judges and juries but my enjoyment almost always comes at great out-of-pocket expense to my employer-clients in terms of cost of defense.  The reality of any civil practice is that most cases will settle or be disposed of short of trial  When it comes to settling employment disputes, the earlier settlement are reached, the earlier the employer has certainty over the outcome and can focus its attention operating its business. 

Jon Hyman is an employment lawyer in Ohio who recently opined that while an employer's motion for summary judgment is pending (and before can be an ideal time to leverage a settlement because the Plaintiff runs the risk of having the case disposed before trial and the employer risks increased settlement demands or an eventual trial if the motion for summary judgment is denied.  I can't disagree with Jon's assessment and he makes a good point.  However, in my experience I frequently encountered situations where the parties are so enamored by their summary judgment briefing (the employer just "knows" (read believes) the motion will be granted and the employee is equally convinced it will be denied) that that parties appear to be evaluating different cases making settlement more difficult (i.e., the employer believes the case is frivolous and the employee expects to try the case to a jury of his or her peers).

I once heard a plaintiff's lawyer I respect tell a defense lawyer that he would not agree to a mediation date until the employer's motion for summary judgment was heard by the court.  The plaintiff's lawyer told me later than so long as the employer has a motion for summary judgment pending the employer wouldn't see the "value" in his client's case.  Therefore, the plaintiff's lawyer wanted, even insisted, that the employer's motion for summary judgment heard and ruled on before going to mediation.  Eliminating the uncertainty in whether a dispositive motion will be granted or not certainly ensures the parties are evaluating the "same" case and increases the likelihood that the case will be settled.

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Daniel Schwartz at the Connecticut Employment Law Blog has an interesting post today about the effect the American Psychiatric Association's proposed changes the Diagnostic & Statistical Manual could have to the Connecticut body of disability discrimination law.  While Connecticut is unique, according to Schwartz, in its definition of disability and expressly includes mental conditions listed in the current DSM as disabilities, I wrote (facetiously) last year that under the ADA's new, expanded (and inclusive) definition of disability, having a disorder that compelled excessive masturbation (i.e., hypersexual disorder) could qualify as a disability under the American with Disabilities Act entitling an employee to all manner of reasonable accommodation in the workplace.

In determining whether a mental impairment qualifies as a disability under the ADA, plaintiffs sometimes argue that because the mental impairment is a recognized disorder under the DSM, it qualifies as a mental impairment under the ADA.  While the identification of a mental disorder in the DSM is not alone sufficient to satisfactorily show that an individual with that disorder is disabled, given the lower standard necessary to show that an impairment substantially limits a major life activity, it is not a stretch to believe that a trial court would find a genuine issue of material fact as to whether a mental disorder like hypersexuality, qualified as a disability.   I predict that eventually, Congress' massive expansion of the ADA will compel a trial court to recognize an individual as disabled under circumstances that were never contemplated by Congress and will be viewed as outrageous to much of the general public.  Until that occurs, and the media uncovers and widely reports it, there is little likelihood that Congress will revisit (or rein in) its extension of ADA rights.  

Related Links:

Could the EEOC Sue on Behalf of an Employee Who Wanted the Right to Masturbate at Work?

Proposed DSM-5

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The Texas Association of Responsible Nonsubscribers (TXANS) Texas' leading proponent of sound and ethical practices relating to injury prevention and the provision of quality workplace injury benefits by non-subscribers to workers' compensation.  TXANS is hosting its 22nd Annual Nonsubscriber Conference and Exhibition March 22, 2012 in Austin, Texas.  I'll be speaking at the conference.   Some of the other topics that will be covered during the conference, to both subscribers and nonsubscribers, include:

• New Transportation Regulations: Managing Transportation Risks Effectively
• ERISA Update: Fiduciary Duties and Liabilities
• New Regulations to Protect Returning Service Members: Understanding USERRA
• Engaging Employee to Gain Competitive Advantage
• Misclassification of Employees: Avoiding Costly Tax & Legal Consequences
• Union-Free but no Scot-Free: A Warning for Non-Union Employers
• Navigating the Texas Unemployment Compensation System

You can access the Conference Brochure and register for the event here.

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When competitors make agreements with one another about what they will charge, the territories they will divide, the customers each will sell or the employees they will hire, red flags should raise because antitrust issues may be implicated. Last year I wrote about the settlement several Silicon Valley technology companies reached with the US Department of Justice's Antitrust Division over their agreements not to cold-call recruit each others employees. 

Last week, Bloomberg reported on the follow-along civil claim being asserted by a group of tech company employees who claim that their wages were unlawfully depressed by the agreements that were the subject of the DOJ settlement.  According to lawyers for the plaintiffs, the unlawful conspiracy to violate the antitrust laws had the effect of artificially depressing employee wages that could amount to hundreds of millions of dollars.  Regardless of the merits of the civil conspiracy action, it has and will take millions of dollars for the employers to defend the DOJ Antitrust investigation and the resulting civil action.  Competitors must  be careful when they work with one another to ensure not only that their actions comply with the relevant employment laws, but also with state and federal antitrust laws.

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Yesterday I had the privilege to serve on a panel discussion of employment defense attorneys covering Title VII Litigation: Persistent Evidentiary Challenges.  We had lawyers from twenty-two states registered for the program.  If you have an evidentiary question involving a discrimination, retaliation or harassment claim, these materials may provide you a head start on your research or quick answer to your issue.

You can download a copy of the presentation materials here.

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Last week there was a lot of coverage about Mitt Romney's remarks on being able to terminate those who provide services to him.  In viewing his remarks, I think the criticism of his comments comes, not so much from what he said, but how he said it.  In a somewhat cavalier manner, Romney said he liked have the option to be able fire people; not that he liked firing them.   Here is the context of what he had to say:

Romney's remarks have been construed to mean that he likes firing people; something I don't think he said or meant.  However, I've written before on the dynamics of terminating the employment relationship with employees.  Studies have shown that losing a job can be one of the most stressful life events one can experience --akin to the loss of a family member or divorce.  And while terminating the employment of an employee is not normally easy, it is an inevitable part of most manager, supervisor and human resource professional's job.  

Terminating the employment relationship with an employee is a serious matter and should be treated as such.  When communicating the decision, an employer should be guided by being as compassionate as is possible under the circumstances.  That doesn't mean that the decision is debated with the employee.  Rather, it goes more into delivering the planning of the announcement. Plan to communicate the decision in a way that will minimize the trauma to the employee to the extent possible.  Take steps to ensure that the employee is not unduly embarrassed by the decision.  It is good to remember that we are all human before communicating an employment termination decision, particularly where there is not egregious.  We all have families to support and the decisions made by employers, and the employees who call upon employers to make those decisions, have consequences.  Communicate adverse employment actions to employees accordingly.  And never, never (whether you are running for President or not) tell anyone you like firing people.

Follow me on Twitter @RussellCawyer.  

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There are a few pockets in the state where lawyers representing employees still vigorously fight the arbitration agreements their clients signed with employers agreeing to arbitrate all disputes. One of the pockets is in El Paso, Texas as evidenced by the number of opinions out of the court of appeals addressing the enforceability of an arbitration agreement between employers and employees.

An example of one of these challenges is found in the recent opinion of Mendivil v. Zanios Foods, Inc.  In Mendivil, the plaintiff-employee challenged the arbitration agreement he signed with his employer when he wanted to sue in court under a workers’ compensation retaliation theory. Mendivil challenged the agreement on a variety of grounds including the fact his employer did not promise to arbitrate its disputes with Mendivil; he had to arbitrate his claims in New Mexico rather than El Paso; he had give notice of intent to arbitrate within thirty days of the incident and respond to all correspondence from his employer within ten days or waive arbitration; and he had to pay for one-half of the arbitration fees. In legalese, Mendivil claimed the agreement was illusory and not supported by adequate consideration (because the employer made no return promises) and was legally unconscionable (because it made him arbitrate far away, bear one-half of the arbitration expenses and make requests for arbitration on short time tables). 

The court of appeals considered Mendivil’s challenge to the trial court’s order to arbitrate. The appeals court was persuaded that the agreement was unsupported by adequate consideration because the employer made no promises to Mendivil and that alone was sufficient to warrant reversal of the trial court’s arbitration order.   

The takeaway from this case is twofold. First, an employer that desires to enforce an arbitration programs with its workforce must make sure the agreement is supported by valuable consideration. This is usually accomplished by having the employer make the return promise to arbitrate all of its disputes it has with employees. The mutual promises to arbitrate claims will almost always suffice as adequate consideration to support the arbitration agreement. Second, arbitration is meant to be a meaningful alternative to a judicial forum. Where a party uses the arbitration agreement to impose onerous conditions far more restrictive than would be found in a judicial forum, the court will view the enforceability of the agreement more skeptically. Remember, pigs get fat but hogs get slaughtered.

You can download a full copy of the Court’s opinion in Mendivil v. Zanios Foods, Inc. here.

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Wow!  That is all I could say after I read the recent NLRB decision holding that an employer's requirement that employee sign mandatory arbitration agreements waiving the right to litigate claims in a collective or class action violates the National Labor Relations Act.  

In the case styled D.R. Horton, Inc. and Michael Cuda, the Board considered an arbitration program used nationwide by the home builder employer.  The arbitration agreement, signed by all employees, required that all disputes be resolved through arbitration and that no disputes would be arbitrated on a class or collective basis in any forum, judicial or arbitral.  When Michael Cuda sought to bring a nationwide wage and hour class action on behalf of all of the company's superintendents, the company sought to enforce the arbitration agreement and its mandate that claims be litigated individually --not collectively.  Cuda filed an unfair practice charge claiming that the waiver of arbitrating or litigating claims on a representative, class or collective action basis violated the employees' Section 7 rights to engage in mutual aid or protection.  

Since the U.S. Supreme Court decision in Concepcion, more employers have incorporated strategies to ensure that claims are litigated on a level playing field by requiring employees to arbitrate or litigate those claims on an individual (or non-class action) basis.  Notwithstanding the Board's commentary to the contrary (i.e., the Board professed that the decision would impact few agreements), the Board's decision will have widespread ramifications on companies use of arbitration programs.  Despite the disadvantages that arbitration carries, one advantage was the widespread belief that employers could better manage the prospect of having to litigate class actions with large numbers of their workforce through arbitration agreements designed to decide claims on an individual basis. The decision in D.R. Horton eliminates that potential advantage of arbitration.  Moreover, the Board's decision is not limited to arbitration programs and its rationale may be applied outside of arbitration agreements such as agreements with individual employees

Finally, because it is a decision applying federal labor law, a law that applies to most employers and employees, the Board's position could have wide-reaching, adverse consequences for employers seeking to control the risk of defending against class or collective actions.  This is an important decision that warrants following through the inevitable appeal that D.R. Horton will make.

You can download a full copy of the Board's decision here.

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The current federal administration is making significant changes in employment law through its rulemaking and regulatory authority rather than seeking Acts of Congress.  Another example of this method of legislature-through-rulemaking is the new federal regulation taking effect on January 3, 2012 that prohibit all commercial motor vehicle drivers from using hand-held telephones while driving.  The new rules provide significant penalties for drivers and employers of drivers caught violating them.

In summary, the final rule provides as follows:

• Restricts use of hand-held mobile telephone by drivers of commercial motor vehicles;
• Prohibits employers of CMV drivers from requiring or allowing drivers to use hand-held mobile telephones while driving and provides a civil monetary penalty of up to $11,000 per violation;
• Imposes new driver disqualification sanctions for drivers violating the rules, or state law equivalents, on multiple occasions;
• Requires states, within three years, to implement the new rules regarding disqualifying CDL drivers for violating the new serious traffic violation of using a hand-held mobile telephone while driving a commercial motor vehicle;
• Provides limited exceptions for communications to law enforcement personnel and emergency services;
• Applies to school bus drivers and drivers of small, passenger-carrying vehicles (designed to transport 9-15 passengers), not for direct compensation that were otherwise exempt from the Federal Motor Carrier Safety Regulations;
• Defines "use [of] a hand-held mobile telephone" to include holding, dialing and reaching in a proscribed manner to conduct voice communication;
• Includes "push-to-talk" functions within definition of hand-held mobile telephone. 

If you are a CDL driver or employer of CDL drivers, you should review these regulations carefully and update your fleet management and employee handbook policies accordingly.  A full copy of the final regulation can be accessed here.

Follow me on Twitter @RussellCawyer.

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A lot, relatively speaking, happened while I took a few days off to celebrate Christmas.  The DOL published three new fact sheets on retaliation (here, here and here); the NLRB delayed its mandatory posting of employee rights and the Board passed its ambush election rules.  Hopefully this will be a quiet week and I'll be posting again once the new year breaks.

Hoping you all have a safe and happy New Years Eve.  I'm looking forward to what 2012 brings in the way of Texas employment law updates.

Follow me on Twitter@RussellCawyer.

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I read a thought provoking article by Colin Turner in Business Review Europe about the importance of rewarding employees at Christmas and how those rewards can motivate employees. The article emphasized the importance of rewarding employees not only for the service they have provided, but to reward them prospectively for the service the employer expects to receive. This pay-it-forward concept is exemplified by the following: 

The tale goes that prior to the 18^th century you would give a tip to the groom at the Highway Inn in advance of the service you wanted. This was to insure performance that your horse would be fed and watered. Similarly if we want the best out of employees we must take the opportunity to reward them in advance of the service we expect and at the time when people really want to be valued – Christmas or the Festive Holiday.

The take-away from the article was that if employers should treat their employees as the valued professionals it expects and wants them to be, the employees will respond accordingly. Its an interesting philosophy to think about and may be successful in motivating some employees.

A full copy of Colin’s article can be review in at page 60 of December's Business Review Europe published by White Digital Media.

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The Federal Judicial Center has announced a new pilot program to streamline discovery in employment disputes filed in federal court.  The program, announced in November, would compel initial discovery for certain employment cases where an adverse action is alleged.  Under the program, parties would have to produce, as part of initial disclosures, commons discovery items that are asked in almost every case.  For example:

Plaintiff must produce:

• Communications with the employer concerning the factual allegations or claims at issue;
• All other claims, charges, complaints or lawsuits that rely on the same factual allegations or claims at issue in the suit;
• Documents concerning the formation and termination of the employment relationship;
• Documents concerning the terms and conditions of the employment relationship;
• Diaries, journals and calender entries maintained by plaintiff about the facts or claims in the lawsuit;
• Current resume;
• Documents concerning claims for unemployment benefits;
• Communications with prospective employers; job search efforts; offers; job descriptions; income and benefits of subsequent employment (although the program places limitations on the employer's ability to obtain discovery from these third-party prospective or current employers);
• Documents regarding the termination of any subsequent employment;
• Any other document the plaintiff relies on to support his or her claims.

Employer's must produce

• Communications between the plaintiff and the employer (its managers, supervisors and human resources representatives);
• Responses to complaints, claims, lawsuits or charges by the plaintiff that rely on the same facts or claims as the subject suit;
• Documents concerning the formation and termination of the employment relationship;
• Plaintiff's personnel file;
• Plaintiff's performance evaluations and formal discipline;
• Documents relied up on to make the employment decision at issue;
• Workplace policies relevant to the adverse action;
• Table of contents or index for the employee handbook or code of conduct;
• Job description for the position held by plaintiff;
• Documents showing the plaintiff's compensation and benefits;
• Agreements between the parties to arbitrate or waive trial by jury of disputes;
• Non-privileged documents concerning any investigations done by the employer of the plaintiff's complaints or allegations;
• Documents concerning unemployment benefits;
• Any other document on which the employer relies to support its defenses; affirmative defenses or counterclaims including any other document describing the reasons for the adverse action.

The initial disclosures must be made within 30 days of the employer's first responsive pleading or motion thereby speeding the exchange of information between the parties.  The standing order also contains a model protective order for use in these proceedings.  Other than the limitation (or delay) on employers being able to subpoena records from the plaintiff's subsequent employers, this programs sounds very interesting.  It is not unlike some of the standing discovery orders that are used by the California state courts.  I am hopeful that it will reduce some of the cost involved in defending employment claims for employers that are litigated in federal court.  I look forward to seeing how it works and expect it to be a success since the mandatory disclosure subjects are discovery items requested in almost every employment discrimination or retaliation case.

H/T to Molly DiBianca and Jon Hyman who first wrote about the new program.  (here and here) 

Follow me on Twitter @RussellCawyer.

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If you attend many EEOC meditations or the meditations of lawsuits, you know it is important to keep an accurate record of the parties' respective settlement offers.  This is useful in trying to glean where the parties are going and whether there may be an overlap in their respective settlement positions.  Picture it Settled recently released a new Free Iphone App to assist in tracking and making settlement offers.  Picture it Settled Lite allows a party to track the dollar amount and time of each parties offers; assist a party in making subsequent offers based on prior moves in dollars or as percentages of offers; and even predicts when, in terms of time, the parties, based on their prior concessions, might reach an agreement.  While the applications is not an adequate substitute for the strategy and tactical issues that go into mediation bargaining, it is useful in that it quickly provides some common calculations parties use during the course of mediation.

Try the App and let me know what you think. You can download Picture it Settled Lite at the Itunes Store.  The company states that an Android application is also available.

Follow me on Twitter @RussellCawyer.

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Last weekend, the Dallas Cowboys lost a close game to the Arizona Cardinals.  If you watched the game, you know how it ended (and probably have a bad taste in your mouth).  For those of you who didn't see the game, here is a summary of what occurred.  

With two minutes left it the 4th Quarter and the score tied 13-13, Dallas is driving down field.  At about 28 seconds left in the game and still possessing 2 timeouts, Quarterback Tony Romo completes a pass to Dez Bryant to Arizona's 32 yard line making a first down.  Rather than calling a time-out to run a few plays to gain a few yards for a shorter game winning field goal attempt, Dallas ran the clock down to 7 seconds before stopping the clock.  Then, a split second before his kicker kicks the field goal, Dallas head coach Jason Garrett called a timeout --but not before the kicker knocked the 49 yard field goal through the uprights.  Because Garrett called the timeout, the kick had to be redone and was missed.  The teams went to overtime where the Cowboys lost.

In the post-game press conference, Garrett refused to accept blame for any of the poor time management and decisions made in the final minute of the game. Moreover, with 24 hours to reflect on the events of the game (and every sports radio and television talk show critical of his decision), in Garrett's Monday press conference, he did not accept blame nor did he concede that perhaps he should have made different decisions.  His explanations appeared, to some, to be of questionable believability.

And here is where the lesson lies for employers.  From time-to-time we all make mistakes. When an employer, with the benefit of hindsight, makes an obvious mistake in the manner or treatment of an HR issue, the employer should not attempt a cover-up or set forth explanations of dubious believability.  Rather, the employer should consider whether a sincere apology is in order along with taking steps to minimize or correct the mistake.  Of course acknowledging or admitting to a mistake may be used against the employer as an admission and can carry adverse legal consequences.  It may, however, help the employer avoid a lawsuit altogether. 

Garrett's explanations for his game day decisions, in my opinion, did far more to undermine faith in his judgment and credibility than a simple acknowledgment of his mistake would have done.  Employers can learn from his mistake.

Follow me on Twitter @RussellCawyer.

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I want to thank my clients and other readers of the Texas Employment Law Update for your loyalty and support.  More importantly, I hope that you and your families have a safe and happy Thanksgiving holiday.  For my part, our family will be spending a traditional Thanksgiving (traditional for us) with extended family and friends, both a smoked and cajun fried turkey, and as much football as is humanly possible to consume in a single day.  While I won't be participating, much of my family will brave the Black Friday crowds looking for deals and kicking the holiday season off in full force.

Despite the fact I'll be enjoying the holiday, employment law and related-matters won't be far from my mind.

Here are a few Thanksgiving-related employment items for your consumption.

Department of Labor is encouraging retailers to take steps to provide for crowd managment and safety during Black Friday sales.  Additional resources for retailers, employees and shoppers related to Black Friday sales and safety can be found here.

Facts about Texas Employment Law and Thanksgiving.

• Texas has no law requiring employers to provide a day off at Thanksgiving.
• Texas law does not require premium pay for working on holidays like Thanksgiving.
• Employees on FMLA leave may be entitled to the paid Thanksgiving holiday under company policy if the company's policy provides holiday pay if the employee were on vacation instead of FMLA leave.  

Next week I'll turn to seven things you should consider adding or confirming are in your employee handbook for 2012.

Happy Thanksgiving!

Follow me on Twitter @RussellCawyer.

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Yesterday, the President signed a bill that is good for veterans and employers.  The law provides new and enhanced tax credits for employers hiring veterans.  The law, effective immediately, allows employers to claim certain tax credits for hiring unemployed veterans ($2,400 in the case of a veteran unemployed at least 1 month; $5,600 for a veteran unemployed at least 6 months; and $9,600 for hiring an unemployed veteran with service-related disabilities).  You can review a full copy of the act here.  Its nice to be able to write about a new law that provides benefits for both employers and employee --particularly for our veterans that have served this country so well.

Follow me on Twitter @RussellCawyer. 

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Penn State announced that it selected former federal judge and FBI Director Louise Freeh to lead an independent investigation of all aspects of the University’s actions related to the child sexual abuse allegations that have been reported.  While federal and state (two states) authorities are investigating the allegations, Penn State’s investigation is likely to be more widespread than the criminal investigations as it will also evaluate the University’s governance, controls, protocols and oversight and not just the actions or inactions of school officials.  Penn State’s actions are laudable in that criminal investigations will be designed to prosecute and punish those that have broken the law while the University’s investigation may lead to changes and reforms at the school that will prevent similar kinds of actions from being unreported, undiscovered or unpunished.

I’ve written before about the things an employer should consider in selecting an investigator to conduct an inquiry into employee misconduct.  In selecting an independent investigator in a matter that is of such high profile and subject to intense media scrutiny, it is important that the investigator be truly independent.  While some have already questioned Freeh's independence, according to Penn State, the scope of Freeh’s inquiry “will be expansive, and he is free to take his work to whatever conclusions he deems appropriate. No one at Penn State will be exempt from this review, including the Board of Trustees itself.”

Penn State’s decision to appoint an independent investigator like Major League Baseball’s appointment of George Mitchell to investigate the use of steroids in baseball in 2006.  However, Penn State’s inquiry purports to be potentially unlimited in scope and goes further than in that no one will be exempt from Freeh’s review (although some current and former employee may refuse to cooperate for Fifth Amendment or other reasons and the University will have little control over those former employees that decline to participate).  Mitchell, during the time period he investigated baseball, had close ties to the Boston Red Sox; initially limited his inquiry to the time period after 2002 when baseball began testing for steroids; was limited to player’s voluntary cooperation in providing interviews and information; and he (and MLB) had no authority to discipline players (of course where were represented by a union).  That Penn State’s independent investigation appears to provide Freeh with unfettered access to university information and officials and the pronouncements that Freeh may take the investigation wherever it leads shows the University’s commitment to uncovering the truth.  

Follow me on Twitter @RussellCawyer.

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Recently, the Supreme Court of Texas heard oral arguments in an interesting case regarding the outer limits of the attorney-client privilege with respect to a workers' compensation insurance carrier attorney's communications with its insured.  The communications at issue were made between the carriers and the insured/employer during the administrative proceeding before the Texas Workers' Compensation Commission over the compensability of a workers' compensation claim.  The case is styled In re XL Specialty Insurance Company and Cambridge Integrated Services Group Inc. (No. 10-0960).

At issue is a trial court's order that the workers' compensation insurance carriers turn over, in a civil lawsuit over the allegedly bad faith denial of workers' compensation benefits, communications they had with their insured/employer during the course of the underlying administrative litigation over the compensability of the workers' compensation claim. 

This case could have important ramifications for the Texas law of attorney-client privilege of communications between an insured and its insurance company's counsel.  Employers, and their attorneys, routinely communicate with insurance companies about the status of potential and pending claims.  Similarly, counsel for insureds routinely provide litigation updates about the potential strengths, weaknesses, potential exposure and likely outcomes on pending litigation.  These types of communications are normally treated as confidential and subject to the attorney-client privilege under the common legal interest doctrine (i.e., the privilege extends communications between parties or attorneys that share a common legal interest).  And while the case before the court is slightly different from the way EPL claims are handled because the insured/employer is not party (and is therefore a third-party) to the underlying lawsuit, the Court's pronouncements regarding the limits of the attorney-client privilege could have wide reaching effects on the manner in which employers communicate with their insurance carriers about pending claims.

We'll have more from this case when the Court renders its opinion in the case. 

Follow me on Twitter @RussellCawyer.

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Several years ago I took the deposition of the business owner who hired several employees from a competitor in violation of a noncompetition agreement the employees had with the competitor.  As part of enforcing the agreements against the former employees, the competitor sued the new employer for tortious interference with contract because the new employer/business owner was aware of the noncompetition agreements and hired the employees nonetheless.

During the deposition the indignant business owner repeatedly justified the hiring of the employees that had noncompete agreements as being appropriate because, "Texas is a right to work state!"  It made me realize that some employers, and probably many employees, don't know what it means to be a right to work state.  Here is what it means.

A right to work state is one in which prohibits employers and unions from agreeing to make membership in a union a condition of employment.  The fact that Texas is a right to work state has no effect on the enforceability of a noncompete agreement nor does it provide any legal excuse or justification to ignore the employees prospective employees have with their former employers.   So if you are a business owner considering hiring employees from a competitor who have noncompetition agreements, don't think that the fact that Texas is a right to work state will justify that behavior and contact a labor and employment lawyer to ensure that the hiring of those employees will not result in litigation.  There may be other good and sufficient grounds to have the noncompetition agreements set aside, but the the fact Texas is a right to work state is not one of them.

Follow me on Twitter @RussellCawyer.

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If you have not experienced it already, the EEOC is very active under the Obama administration.  Proof of this heightened activity is evident in the most recent statistics released by the EEOC for the fiscal year ending September 20, 2011.

Here is a summary of some of the highlights from the EEOC FY 2010 statistics (the Commission's fiscal year ends September 30, 2011)

• Total Charges of Discrimination filed reaches all time high of 99,922 (an increase of 6,645).
• Cause findings of discrimination were up over 1,000 from last year (and the highest number in 5 years).
• Disability charges of discrimination increased by almost 5,000 totaling a full 25% of all charges filed (expect that percentage to increase under the ADAA).  Only race, retaliation and disability showed an increase in percentage of total charges over last year.
• EEOC's backlog of charges is decreasing indicating that the Commission is processing charges faster.
• Conducted or are conducting 580 systemic investigation and filed 23 lawsuits alleging systemic allegations of discrimination.

Unless a projected budget cut decreases the EEOC's ability to process charges and conduct investigations and litigation, it is expected that next year's charge filing statistics will meet or exceed this year's record numbers.

Follow me on Twitter @RussellCawyer.

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I have already written about the Herman Cain story and won't opine further on it here except to say, I have no idea who is telling the truth in the he-said-she-said (and she-said; and she said) story.  The headlines do remind me about what little rights the accused harasser has when, as Herman Cain claims, a false complaint of harassment has been made.   And before you start sending me the hate mail over this HSO, read the remainder of this post.

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The recent scandal at Penn State University is both shocking and troubling.  That high level officials of a such a prestigious university would allegedly overlook or cover-up allegations of the sexual abuse of a child is truly reprehensible.  Notwithstanding the intense media coverage of these events, each of those accused is presumed innocent until proven guilty.  But how does the scandal at Penn State tie into Texas employment law?  Here is the nexus.

Texas, like many other states, is a mandatory reporting state when it comes to the suspected abuse or neglect of a child.  Every person who has cause to believe that a child is being abused or neglected is required to report it.  Certain Texas professionals are required to report with 48 hours.  Similarly, federal law requires employers and IT professionals to report violations of involving child pornography on employer computers to the Cyber Tip Line at the National Center for Missing and Exploited Children (who will in turn report to the appropriate law enforcement agencies).  Employers and employees must understand their legal reporting requirements.

Employees and employers who believe that child abuse or neglect is occurring or that an employer's computer system possess child pornography should immediately report their concern to the in-house legal department or human resources and also to the NCMEC, the Texas Department of Family and Protective Services or another appropriate law enforcement agency.  Failure to do so may subject the employer and employee to significant criminal jeopardy, fines and a a potential Penn State size media catastrophe --not to mention delaying an end to the abuse of the child.

Follow me on Twitter @RussellCawyer.

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The Fort Worth Star Telegram has reported that the Texas Rangers are investigating the leak of Manager Ron Washington's pre-game speech to the team before Game 7 of the World Series.  The speech was reportedly taped by a member of the clubhouse staff and then leaked to JoeSportsFan.com.  You can listen to the full recording here.  (Foul Language Warning).

Where every employee, customer and vendor carries a high capacity telephone, video camera and tape recorder in the form of a PDA or smart phone, employers should adopt written policies prohibiting employees from making video or audio recordings during working time and while on the employer's property.  These audio and video recordings can be posted to Facebook, YouTube or Twitter and can have the effect of embarrassing an corporation or disclosing confidential, trade secret information.  Written policies provide a deterrent for employees who would attempt to harm the company through surreptitious records and provide a basis for disciplining employees who violate the policy.  And of course, if employees record communications in Texas to which they are not a party, they are potentially subject to criminal prosecution.  Keep in mind that any policies that prohibit these recordings must either be tailored so as to not violate employees' NLRA Section 7 rights or should contain a disclaimer that the policy is not intended to nor will it be applied to trample on those rights.

Follow me on Twitter @RussellCawyer.

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Last week I was in Seattle attending the ABA's 5th Annual Labor and Employment Law Conference.  While there have been a number of interesting and informative sessions, I wanted pass along an interesting demonstration that was done by Dr. Anthony Greenwald to demonstrate implicit bias (i.e., the internal, subconscious stereotypes we all allegedly have from our past experiences).

In large scale class actions, lawyers representing the classes have attempted to show systemic discrimination in corporations using, in part, implicit bias science.  Implicit bias science attempts to measure the extent to which individuals have implicit bias and how such bias might be predictive of discrimination.  Dr. Greenwald is the developer of the Implicit Association Test.  The test is designed to measure implicit attitudes people may harbor but are unaware of or would otherwise be unwilling to admit.

For example, in the test demonstrated last week, the group was shown a series of names and asked to answer whether the names were male or female names.  Response times were measured and the quicker the response time, the easier a person's brain has in processing a response.  Next, the group was shown a series of job titles and asked categorize each as being a leadership position or non-leadership position (e.g., Boss, Supervisor, Leader, Executive, Assistant, Co-worker etc).  After measuring response times, the group's response times tended to show that male names more closely correlated with leadership positions and female names correlated with non-leadership positions.  This, the test administrator believes, shows that the implicit bias of our group was to associates leadership job titles with males and lower job titles with females.  Dr. Greenwald observed that he has measured implicit bias in many areas such race, gender, appearance (obesity) and age; all useful things in employment discrimination cases --if valid.

While I didn't come away from the demonstration with the belief that the IAT is useful evidence to prove discrimination or predictive of discriminatory behavior, it was interesting.  Do you have implicit bias?  Dr. Greenwald's computer based test is available on-line and you can take it here (We took the Gender Career IAT).  What do you think?  Are you more likely to discriminate because your implicit bias?

Follow me on Twitter @RussellCawyer.

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 Herman Cain is in the news for all the wrong reasons.  During his tenure at the National Restaurant  Association the Association apparently settled two complaints of sexual harassment involving Cain.  

I have no idea what the underlying allegations were against Cain or whether the settlements were made to avoid inconvenience and buy peace or because the allegations had legs and carried potential exposure.  I know one thing about the Cain complaints --continued defense of the complaints would carry additional significant expense to the Association.

Employers settle employment disputes for all manner of reasons; but rarely because the employer believes it violated the law.  Litigation is expensive, distracting and inconvenient for companies.  While the statutory damages caps for federal employment civil rights claims have not increased in twenty years, the rates of attorneys defending those cases have increased many times over.  A $300,000 damages cap case in 1991 was much more significant compared with the fees that would be incurred in defending that case.  Today, the attorney's fees incurred in defending the same case would be a much greater percentage of the potential damages as it would have been in 1991. 

For the same reasons employers should not use arrest records in making hiring decisions (i.e., arrests are no indicia of guilt), the mere fact a company settled an employment dispute is no indication that the law was violated.

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By the time most of you read this, I will be headed to Seattle for the ABA's 5th Annual Labor and Employment Law Conference.  Attended this year by approximately 1,300 labor and employment attorneys from across the country, the ABA's conference provides some of the most comprehensive coverage of current developments in U.S. labor and employment law.

One great thing about the annual ABA conference is that it makes the program materials available on-line.  If you can't get to Seattle this year, but want to review the materials, check out the dozens of papers that will be presented at this year's conference here.

Also, if you want to follow the Seattle Conference live on Twitter, you can by following @abalel or #abalel.

Follow me on Twitter @RussellCawyer.

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Some of you may have noticed that my regular blogging activity has been less-regular.  With the Texas Rangers winning the American League Championship to advance to the World Series and a number of key depositions I've been preparing for and taking, time dedicated to the blog is in short supply.  I hope to return to more regular activity once the World Series concludes.

And when regular blogging resumes, look for updates from the ABA's National Labor and Employment Law Conference from Seattle that I will be attending from November 2-5.

Go Rangers!

Follow me on Twitter @RussellCawyer.

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In this current political cycle there is a lot of talk about the adverse effect unnecessary governmental regulation has on business.  Here is one example.  The FMLA requires employers to post notice of FMLA rights (and include an FMLA policy in their handbooks) even if they have no FMLA eligible employees that can take FMLA leave.  Employers with fifty or more employees have to post notice of FMLA rights even if they do not have fifty or more employees within seventy-five miles of one another.  As written, this is a ridiculous regulation.  The regulation requires employers to advise employee about rights that they don't have.  Do you think some of those ineligible employees might be confused about the rights?   If I'm an employee, I'm not thinking that my employer would include policies in a  handbook that have no applicability to me.  Indeed, based on the employer's inclusion of such a policy in its handbook, I would likely think that government-mandated FMLA leave was available to me.

Certainly I don't think this specific regulation is cause of our Nation's economic troubles.  It is, however, an example of how regulation can place ridiculous obligations on business.  Hopefully the political debate will cause all involved to require governmental agencies to review the regulations they put in place to determine which are necessary and eliminate the ridiculous ones.  

Follow me on Twitter @RussellCawyer.

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I suggested that employers should wait until November 14, 2011 (the implementation deadline) to post the new regulatory-requirement posting on employees' NLRB rights because of several lawsuits seeking to enjoin the requirement.

The Board has now postponed the initial posting deadline until January 31, 2012 "to allow for further education and outreach."  I'm not sure who else they feel they need to educate and reach out to, but the deadline is changed nonetheless.  Because there is still some uncertainty as to when, and even if, employers will have to make this new posting available to employees, don't post it until you have to.  If you already posted it, take it down.

Hat tip to Jon Hyman at the Ohio Employer's Law Blog for first alerting me to the news.

Follow me on Twitter @RussellCawyer.

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One of the most popular posts (i.e., most read) I've written is one I published two years ago on whether employer can or should ban the use of e-cigarettes in the workplace.  Some employers have gone so far as to implement the complete ban on the use of all products containing nicotine --both during and after work.  I thought that now would be a good time to update my thoughts on the subject.

Recently, the U.S. Department of Transportation issued a press release announcing its proposal to explicitly ban electronic cigarettes on U.S. flights.  According to the DOT's release:

Electronic cigarettes cause potential concern because there is a lack of scientific data and knowledge of the ingredients in electronic cigarettes.  The Department views its current regulatory ban on smoking of tobacco products to be sufficiently broad to include the use of electronic cigarettes.  The Department is taking this action to eliminate any confusion over whether the Department’s ban includes electronic cigarettes.  The proposal would apply to all scheduled flights of U.S. and foreign carriers involving transportation to and from the U.S.

Amtrak has banned the use of electronic smoking devices on trains and in any area where smoking is prohibited. The Air Force Surgeon General issued a memorandum highlighting the safety concerns regarding electronic cigarettes and placed them in the same category as tobacco products. The U.S Navy has banned electronic cigarettes below decks in submarines.  Further, several states have taken steps to ban either the sale or use of electronic cigarettes.

This is a fairly contentious issue.  On the one hand, smokers and supporters of e-cigarettes claim that they are odorless devices that emit nothing more than water vapor and are no more harmful to coworkers than allowing a nearby employee to chew nicotine gum or wear a nicotine patch.  On the other hand, some employers have expressed concern over the lack of scientific evidence over what is emitted into the air from the electronic cigarettes; over the perception that the employer is condoning or sponsoring any kind of addiction or dependence; and whether some of the types of employment (i.e., retail or customer service) are inconsistent with image the company wants to foster.

In the end, and assuming that nicotine dependence is a disability that must be reasonably accommodated under the ADA, an employer can reasonably accommodate the disability without allowing the use of e-cigarettes in the workplace or at work stations.  It is the long-standing rule that the employer gets to select the accommodation provided among various effective accommodations.  For example, the employer could allow the use of e-cigarettes in the same manner as it allows employees to use other tobacco products (e.g., outdoors during break times).  Similarly, the employer could allow the the employee to use nicotine gum during working time.  If the employer allowed the use of e-cigarettes during working time or in working locations (and assuming it is not prohibited by state law), the employer could require that the employee refrain from using scented e-cigarette flavors to further reduce the potential effect on nearby co-workers.

Follow me on Twitter @RussellCawyer.

DOT Notice of Proposed Rulemaking here.

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One of North Texas' largest employers announced that it will not longer hire or consider for hire any individual who uses any nicotine product (i.e., cigarettes, nicotine gum or patches, chewing tobacco or electronic cigarettes).  Baylor Health Care Systems announced its new policy on the careers page of its website stating:

As a health care system committed to improving the health of those we serve, we are asking our employees to model the same behaviors we promote to our patients. Beginning January 1, 2012, Baylor will no longer hire individuals who use nicotine products. Applicants who profess to use nicotine will not have their applications processed. Anyone who is offered and accepts a position with BHCS will be tested for nicotine during our regular post-offer pre-employment testing. Applicants who test positive for nicotine will be eliminated from consideration and pending job offers will be rescinded.  We encourage candidates who do not pass the nicotine testing to consider taking steps to stop the use of nicotine and reapply for consideration after a period of 90 days. 

The policy appears to screen out any applicants, regardless of the type of product used containing nicotine and whether the product is use on non-working time off the employer's premises.  Smoking or nicotine dependence has not historically had success in the courts as being a recognized ADA disaiblity.  However, it will be interesting to see if in a post-ADAAA world, where the definition of disability has been greatly relaxed, this policy comes under scrutiny by the EEOC or applicants rejected for employment based on their use of products containing nicotine. 

Baylor is not the first hospital to implement such a policy.  However, similar policies are not without their critics.  The National Workrights Institute, a nonprofit human rights organization focused on workplace issues, has been quoted that "such policies are a slippery slope — that if they prove successful in driving down health care costs, employers might be emboldened to crack down on other behavior by their workers, like drinking alcohol, eating fast food and participating in risky hobbies like motorcycle riding." 

Presumably Baylor had its policy fully vetted by its legal experts and believes it can defend the policy.  However, a quick, admittedly nonexhaustive research search, failed to find any cases holding that nicotine addiction is not a disability under the ADAAA.  Only time will tell whether these kinds of policies will be upheld by the courts.

Follow me on Twitter @RussellCawyer.

Other Articles on Failure to Hire Tobacco Users:

Refusing to Hire Tobacco Users --Valid Argument or Just Blowing Smoke?

Hospital Hiring Goes Up in Smoke.

Hospitals Shift Smoking Bans to Smoker Ban

ADA Amendments May Open the Door for Nicotine Addiction Claims

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If you are are regular reader of this blog, you know that by November 14, 2011, most private employers (union and non-union) have to post notice of employees' federal labor rights to form and join a union.  Some of you may have even already posted the NLRB-sanctioned poster.  

However, several lawsuits have been filed seeking to have the new NLRB rule declared invalid.  The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce sued in federal district court to have the new posting rule declared invalid.   The U.S. Chamber's lawsuit follows on the heels of last week's suits seeking similar relief by the National Federation of Independent Business and the National Association of Manufacturers.

Given the uncertainty about whether the posting requirement will actually take effect, it may be prudent to wait and see whether one or more federal courts will enjoin the NLRB from enforcing its new rule.  And while an injunction may or may not be binding on the NLRB in Texas (because neither lawsuit seeking an injunction was filed in Texas) an injunction could prohibit the NLRB from enforcing it nationwide.  In the meantime, employers should hold off on posting the new poster until November 14, 2011 so that the courts have an opportunity to address this issue.

Follow me on Twitter @RussellCawyer.

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In jury selection of an employment discrimination case, the employer addresses the potential jury pool after it has already heard from the employee's lawyer. When the employee's lawyer has done an effective voir dire (i.e., jury selection), the employer might start to see the panel members begin to express verbal and nonverbal cues that the jurors are beginning to form opinions about the case that would tend to favor the employee.  The plaintiff employee, as the party bearing the burden of proof, always has a real advantage in getting to talk first and last at every stage of a trial. 

While the trial judge will undoubtedly advise the jury that nothing the lawyers say is evidence, it is important to remind the jury to refrain from from forming their opinions until all of the evidence is in (read:  the employer has a chance to put its case on).  I've even some some defense lawyers go so far as to ask potential jurors at the beginning of jury selection if, having heard the plaintiff employee's voir dire, was anyone leaning just a little toward thinking the plaintiff might have a case.  That is usually following by some example to show that every story has two sides and the jury can't really decide what happened until they have heard all of the evidence. 

The importance of ensuring that jurors are reminded to keep an open mind until they have heard all of the evidence is exemplified in two posts written by two of my colleagues about the same case.  On September 8, 2011, the EEOC announced that it filed a lawsuit against Walgreens for allegedly violating the Americans with Disabilities Act when it fired an employee for eating chips to stop a hypoglycemic attack.    The EEOC summarized the facts as follows:

Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when  she opened a $1.39 bag of chips because she was suffering from an attack of  hypoglycemia (low blood sugar). Hernandez  had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens  knew of her diabetes. Nevertheless, Walgreens  fired her after being informed that Hernandez had eaten the chips because her  blood sugar was low, even though she paid for the chips when she came off  cashier duty.

Jon Hyman, who represents employers, defended Walgreen's actions on his blog the Ohio Employer Law Blog.  He wrote that:

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it’s allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control.

After reading Jon's post, you might be inclined to side with the employer and believe that the EEOC overstepped its bounds by suggesting that Walgreens had to, as a reasonable accommodation, excuse one of its personal conduct rules.

Shortly after Jon's post was published, Chris McKinney (a fellow Texas lawyer) who represents employees, suggested that Jon's defense of Walgreens was as good as could be done if not a little over the top in accusing Ms. Hernandez of stealing the chips and further suggesting the company's defense was factually false.  Chris had the following closing argument on Walgreen's actions:

At trial, Walgreens will presumably say that Ms. Hernandez had any number of alternative actions available to her, including: 1) leaving her station to get some food from her purse or locker (for which she would undoubtedly be fired; or 2) risk going into diabetic shock.  From the company's point of view, choice 2 is obviously the preferable solution.

No one can accurately predict how this case will ultimately conclude (although I'd bet a large sum of money that like most civil cases --and most brought by the EEOC --it will end with a settlement) but it a good reminder that every case has at least two sides and the jury must be reminded not to forms its opinions until it has heard all of the evidence.

Follow me on Twitter @RussellCawyer.

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Yesterday, the Supreme Court of Texas heard oral argument in two employment cases.

In El Apple I, Ltd. v. Olivas, (No. 10-0490), the Court is considering whether detailed lodestar attorney fee calculation is required with breakdowns for each specific task.  Also under consideration is whether appellate fees should be calculated in advance or only upon remand from appeal.  You can access a video of the oral argument here.

I've written before about the Prairie View A&M University v. Chatha case, which I believe was wrongly decided by the court of appeal.  (post here).  In Chatha (No. 10-0353), the Court is considering whether the statute of limitations on an employee's complaint of discriminatory pay commences on the date the decision is communicated to the employee or on the date the paycheck reflecting the allegedly discriminatory pay decision is issued to the employee. You can watch the video in Chatha here.

Follow me on Twitter @RussellCawyer.

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When I started the Texas Employment Law Update almost three years ago, there were only three employment law blogs I was familiar with written by Texas attorneys:  Work Matters -Texas Employers Blog, Jottings by an Employer's Lawyer and the Texas Employment Law Blog. Today there are a number of other good blogs focused primarily on developments in Texas law.  Some has an employer's focus and some focus on issues of importance to employees and individuals.

As you consider which votes to cast the the ABA Journal Blawg 100 (i.e., the list of the top 100 legal blogs), and after you've voted for the Texas Employment Law Update for the Blawg 100 (nomination form here), check out the following employment blogs authored by Texas attorneys to see if one or more of them should be nominated too (voting ends September 9, 2011). 

San Antonio Employment Law Blog (employee)

Houston Employment Law Blog (employee)

Employment Law Blog by Strasburger & Price (employer)

Smooth Transitions (noncompete law employee and employer)

Dallas Noncompete Lawyer (noncompete law employee and employer)

Texas Employer Handbook (employer)

If you're in a voting mood, you can also cast your ballet for the LexisNexis Top 25 Employment Law Blogs.  I'd appreciate your vote for that honor as well.  Voting ends September 12, 2011.   You can find out how to vote for the LexisNexis Top 25 here and see other blogs outside of Texas that are worthy of following.

Follow me on Twitter @RussellCawyer.

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Next week we celebrate Labor Day; the first Monday in September (although my Labor Day celebration starts a little later today).  Labor Day is and has been one of my favorite holidays.  As a child, we didn't start school until after Labor Day and it marked the end of summer vacation.  Now, my children start school much earlier; but they still get an extra day off.  In most years when a trial or other proceeding hasn't been unfortunately scheduled the week after the Labor Day, I also get to spend an extra day with the family. 

But Labor Day wasn't started so school children (and their lawyer fathers) could get an extra day off.  Labor Day was originally celebrated to honor workers and as a force for changes in the workplace.  In particular to encourage reforms in employee safety, working conditions and pay.  On Monday, celebrate America's workers and the sacrifice they make (albeit not unrewarded) for their employers and their families.

Have a safe and happy Labor Day holiday weekend.

Now for a little Texas Labor Day employment law (or as evidenced below, the lack of Texas employment law).

Texas Holiday or Premium Pay for Labor Day

Unlike some states, there is no requirement that employees be paid premium pay or overtime merely because they work on an official holiday like Labor Day.  Of course, if the employee is non-exempt and the work on Labor Day pushes him over the 40 hour per week threshold, the FLSA would require overtime be paid for those hours worked over 40 per week.

Follow me on Twitter @RussellCawyer.

More Labor Day resources:

U.S. Department of Labor's 2011 page.

A History of Labor Day and More Labor Day History.

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I almost never read the letters to the editor in my local newspaper because, well . . . opinion are like . . . noses; everyone has one. However, last week I “stumbled” on a letter that was thought provoking in this period of high unemployment and borderline recession.

Jack Durham of Fort Worth, Texas proposes that the elimination of overtime would create job growth. He writes:

End overtime

I have a plan to help create jobs. The government should eliminate or drastically reduce the amount of overtime an employee could work. Employers would then seek other full-time employees to cover the gap. Smarter people than me would have to draft the provisions, but we have lawyers for that.

Instead of trying to create jobs over the next two to six years, these new employees could be hired by Labor Day. The job increase should be significant. This would discourage employers from paying 20 hours of overtime to avoid paying benefits to a full-time worker. Just a thought.

Maybe Jack is on to something; although, I think the French tried something similar with the 35-hour workweek.  A prohibition against overtime might create jobs.  It might add to some employee's desire to have better work-life balance (i.e., less work time and more time to spend on the employee's personal endeavors).  It would also negatively impact those employees who are willing to work longer hours for more money and could have a adverse effect on business productivity thereby hurting job growth.

Are there other reforms to the FLSA that might also create job growth?  How about elimination of the "white collar" exemptions?  Rather than paying an employee a salary for all hours worked, employers could be required to pay employees covered by the white collar exemption overtime for hours in excess of forty per week.  Would that lead employers to hire more "white collar" workers to spread the work around and reduce overtime payroll costs?  Employers that wanted to do more with fewer workers would see increased overtime expenses but those employers that wanted to avoid overtime would increase the number of workers to spread the work around so that it would be paid at straight time rates. 

Are there other reforms in the employment law context that create job growth without unduly hampering the operations of employers?  Let me know and I'll post them in the comments section.

Follow me on Twitter @RussellCawyer.

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Yesterday, the NLRB issued its final rule requiring all employer subject to the National Labor Relations Act to post notices to employees of their NLRA rights such as the right to form and join a union, bargain collectively over wages and to file unfair labor practice charges with the Board as well as instructing employees on how to file those charges. 

Highlights of the Final Rule posting requirement include:  

• Posting required not later than November 14, 2011;
• Posting must be at least 11 x 7 inches;
• Posted in conspicuous places where will be readily seen by employees and in all places where notices to employees concerning personnel rules or policies are customarily posted;
• Must also be posted electronically on employer's intranet or Internet site if the employer regularly communicates with its employees about personnel rules or policies in such manner;
• Must be posted in language spoken primarily by 20 percent or more of workplace; 
• Federal contractors are also covered;
• Excluded from posting requirements are U.S. (and its wholly owned Governmental corporations), Federal Reserve Banks, States or political subdivisions, persons subject to the RLA, labor organizations and a few others. 

You can access the full Final Rule here (skip to page 174 to see the text of the Rule).  The content of the required posting is found in Appendix A (beginning on p. 185).  The NLRB also published a Fact Sheet on the new posting requirement you can read here.

Follow me on Twitter @RussellCawyer.

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The Texas Employment Law Update has been nominated for LexisNexis's Top 25 Labor & Employment Law Blogs and needs your help.  To be included in the Top 25, LexisNexis counts your comments as votes.

To vote for this blog, click here; register (sorry, voting for President and the Top 25 requires FREE registration) and vote for the Texas Employment Law Update in the comments.

If you enjoy reading this blog and want it to continue, vote early and often because voting ends September 12, 2011.  This is separate and apart from the ABA Journal's Top 100 Blawgs.  You can see how to vote (Free) for the ABA Journal Blawg 100 here.  I appreciate your support.

Follow me on Twitter @RussellCawyer.

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Walter Olson at Overlawyered started they debate by asking “If I could press a button and instantly vaporize one sector of employment law…”  He answered age discrimination.  I'll let him defend his selection and you can read his explanation here. 

Jon Hyman and Daniel Schwartz weighed in that they would reform the depression-era outdated Fair Labor Standards Act and leave laws generally.  Both areas are ready for reform and simplification.  I asked my partners what area of employment law they thought most needed vaporizing (or at least reform).  One identified the varying mosaic of state immigration laws that are being passed across the country and that carry substantial (perhaps catastrophic) financial penalties for employing individuals not authorized to work in the U.S.  Another colleague identified the new health care law that requires employers to provide health plans or pay a penalty for each uninsured employee as an area of law that is stifling job growth --at least for small to mid-sized employers. 

My choice for vaporization is a little more specific.  I would target the FMLA regulations that limit how much information an employer can require from an employee on intermittent FMLA leave --particularly when the leave results from unexpected, anticipated and unscheduled flare-ups of serious health conditions.  These limitations place unreasonable restrictions on an employer's ability to manage and identify intermittent FMLA abuse.  Employers face regulatory barriers in determining whether the employee's absence on Friday was a result of his migraine headache (for which he was approved to take intermittent leave) or because he stayed out too late with friends carousing.  Verifying, in a meaningful way, that employees are using intermittent FMLA leave for approved purposes should not be prohibited or even discouraged.

If you think a particular area of employment law needs vaporizing (or at least reform), post it in the comments below and I'll publish them to continue the debate.

Follow me on Twitter @RussellCawyer.

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The EEOC is reviewing whether the use of arrest and criminal conviction information acts as a hiring barrier and whether employers should be precluded from asking about criminal convictions.  The EEOC publicized the meeting in a press release titled  Striking a Balance Between Workplace Fairness and Workplace Safety.  Particularly troubling about this hearing is the fact that the EEOC appears to be looking at the issue as one of workplace fairness rather than discrimination.  Workplace fairness is admirable, however, the EEOC's mission and mandate is not to try and achieve workplace fairness.  The EEOC's mission is educate, investigate and enforce the protections put in place by Title VII and related laws.  Stated differently, the EEOC is charged with ensuring that individuals are not treated differently because of their race, sex, color, religion, national original, age, and disability; not to ensure that the workplace is fair.

In my experience, few (if any) employers ask for or rely on arrest information in making hiring decision.  I've never seen an employment application that stated that a criminal conviction would be an outright bar to employment.  Most employers that seek criminal conviction information consider the nature and severity of the offense, the length of time since the offense occurred and the position for which the applicant is applying.  Banning the box (i.e., prohibiting employers from asking about criminal convictions on applications) will result in employers needlessly interviewing applicants who, by the nature or severity of their crime, will not ultimately be hired.  This is a waste of employer time and resources.  Moreover, given the EEOC's limited resources, its time, effort and money would be better spent on core mission rather than trying to administratively expand the scope of Title VII to effectively make convicted felons a protected class.

Follow me on Twitter @RussellCawyer.

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Imagine this, its Friday and you are sitting in your office as Director of Verizon’s newly created Office of Reasonable Accommodation.  An employee, I’ll call him Joe, walks into your office.  Joe tells you he's recently converted to the Church of the Flying Spaghetti Monster (i.e., he is now a Pastafarian); that Friday’s are his religion’s holiday; and that his religion requires him to wear a spaghetti strainer on his head at all times. He requests, as a reasonable accommodation of his religious beliefs, all Friday’s off from work and to have the photograph on his employee identification badge retaken so that he be shown wearing a colander on his head. What do you do?

Most employment civil rights laws require that employers treat all employees equally without regard to age, sex, color, race, national origin etc.  The ADA and Title VII's protection of employee's religious beliefs, however, may require employers to treat employees differently (i.e., reasonable accommodation).  Here, Joe's request to accommodate his beliefs (which appear sincerely held) can only be denied if accommodating the belief would cause undue hardship to the employer.  Undue hardship under Title VII is different than under the ADA.  Under Title VII, a proposed religious accommodation is often an undue hardship where it requires the employer to incur more than de minimus expense; violates a CBA, law or valid seniority system; ignores safety risks or requires other employees to work longer or harder. 

Applying these rules to Joe's request, unless you can establish that for security reasons employee photographs on access badges must be taken without headwear, you should probably tell Joe to get his colander while you get out the Kodak.  With respect to the request for all Fridays off, unless Joe's request would violate a CBA provision regarding bidding for schedules or would otherwise make Joe's co-workers work longer or harder, Joe should probably be allowed to take his Fridays off.

Follow me on Twitter @RussellCawyer.

Church of Flying Spaghetti Monster Resources Facebook and Wikipedia.

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The ABA Journal is compiling its annual list of the 100 best legal blogs and is seeking nominations on the blogs to include.  Inclusion on this list (which is not limited to labor and employment law blogs but includes all legal blogs) is prestigious and is something that I, and others that blog regularly, aspire to achieve.

This post is a shameless request (read "beg") that, if you like the Texas Employment Law Update, you nominate this blog for the Blawg 100 list.  Nominating a blog is easy.  You can access the on-line ABA Journal nomination form to nominate the Texas Employment Law Update (or other worthy blogs) here.

Nominations must be submitted by September 9, 2011.  Thank you for reading the Texas Employment Law Update.

Follow me on Twitter @RussellCawyer.

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There has been significant coverage of the unfair labor practice charges that have been filed by employees who were terminated over their postings made on Facebook, Twitter and other social media applications.  (Examples here, here and here).  The NLRB actions in some of these cases have lead to the belief by some union agents and employee representatives that comments made by employees (whether working at union or nonunion shops) through social media have greater protection than comments made in person. 

Recently, the NLRB Office of General Counsel issued three advice memoranda clarifying what does and does not constitute protected concerted activity in the social media context.  This advice dispells the argument that comments made through social media gain any greater protection under labor law than comments made in person.  This guidance is important in that it makes clear that employers may discipline employees for their personal comments made in the social media world when:

• the comments are merely expressions of an individual's gripe or frustration with an individual in management rather than an attempt to initiate or induce coworkers to engage in group action.
• the comments are made to those who are not co-workers of the employee (and the employee wasn't Facebook friends with any co-workers).
• merely communicating with friends about happenings at work.

Whether an employee's comments, whether made through social media or in person, constitutes protected concerted activity is an incredibly fact-intensive analysis.  It may depend on whether the employee has any co-worker Facebook friends, Twitter followers or included in Google+ circles; what comments or feedback co-workers provide to the posts; whether posts are discussed with or seen by co-workers; and of course, the content of the communications themselves.  The General Counsel guidance provide useful parameters for determining whether the conduct is protected under federal labor law.

You can download a copy of the Advice Memorandum here, here and here.

Follow me on Twitter @RussellCawyer

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