Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

Tag Archives: Fifth Circuit Court of Appeals

Fifth Circuit Holds That Telecommuting Not a Reasonable Accommodation Because Regular In-Office Work Was Essential Job Function of Litigation Attorney

Posted in Case Summaries, Disability, Reasonable Accommodation
In Credeur v. State of Louisiana, an attorney working as a litigator with the attorney general’s office experienced health issues related to a kidney transplant. The Office of the Attorney General allowed Credeur to work from home temporarily while she was recovering from her transplant surgery. After several months of telecommuting, the Office of the… Continue Reading

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

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

Fifth Circuit Affirms Summary Judgment For Drilling Company in WARN Case

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

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

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

Fifth Circuit Refuses to Enforce Illusory Handbook Arbitration Provision

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

Fifth Circuit Resolves Intra-Circuit Split on Important ADA Issue

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

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

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

Employee Wins Reversal of Religious Discrimination Defeat at the Fifth Circuit

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

Distinction Between Supervisor/Nonsupervisor Makes $70,000 Difference in Religious Discrimination Case

Posted in Case Summaries, Discrimination, Religion
The status of an employee as a supervisor or nonsupervisor can have a significant impact on the outcome of a discrimination, harassment or retaliation case. For example, if an employee who commits a hostile work environment is a supervisor, the employer could be deprived of valuable legal defenses like the Faragher/Ellerth affirmative defense. A recent case from… Continue Reading

Fifth Circuit Holds that Volunteer Firefighter is not an “Employee” for Purposes of Title VII

Posted in Case Summaries, Disability, Discrimination, Harassment, Retaliation
In an issue of first impression in this Fifth Circuit, the Court held that a volunteer firefighter making a Title VII claim of sexual harassment is not an “employee” for purposes of the statute and therefore had no legal claim. The case arose from a suit filed by a former firefighter for the Livingston Parish… Continue Reading

Fifth Circuit Reverses Controversial Trial Court Decision and Holds Termination of Employee for Expressing Breast Milk Constitutes Sex Discrimination

Posted in Case Summaries, Discrimination
Last week the Fifth Circuit Court of Appeals reversed a widely criticized trial court ruling that had held that a discharge of an employee because she was lactating or expressing breast milk did not constitute unlawful sex discrimination.  In EEOC v. Houston Funding, II, Ltd, the employer moved for summary judgment arguing that Title VII did not… Continue Reading

Fifth Circuit Holds That Attorney’s Fees Not Recoverable In Title VII Mixed-Motive Retaliation Case

Posted in Case Summaries, Retaliation
In a recent case from the Fifth Circuit, the Court held that attorney’s fees are not recoverable for a prevailing plaintiff in a Title VII mixed-motive retaliation case. In Carter v. Luminant Power Serv. Co., the plaintiff employee brought a Title VII discrimination and retaliation claim alleging that he was disciplined for his complaints of racial… Continue Reading

Fifth Circuit Interprets Ministerial Exception Broadly in Case of First Impression

Posted in Age, Case Summaries, Disability, Religion
Last term the U.S. Supreme Court confirmed the existence of the ministerial exception to many of the federal employment discrimination laws. This week, the Fifth Circuit took up the application of the ministerial exception for the first time since the Supreme Court’s opinion in Hosanna-Tabor and applied the exception broadly. Philip Cannata was the Music Director… Continue Reading

Finally, Private Litigants Can Settle Bona Fide FLSA Disputes Without DOL or Court Supervision!

Posted in Case Summaries, Wage & Hour
Some of you may be surprised to learn that conventional wisdom was that claims arising under the Fair Labor Standards Act (the federal law requiring the payment of minimum wage and overtime to most employees) cannot be released or waived without court or Department of Labor supervision. I certainly thought that until several years ago when I had… Continue Reading

Texas At-will Employees Cannot Prevail on Fraud Claims

Posted in Case Summaries
Common law employment claims have certain advantages for plaintiffs over statutory discrimination, harassment or retaliation claims.  For starters, there are no administrative prerequisites to exhaust and the kinds of damages one can seek for common law claims can sometimes be be more "creative" than the straight forward, capped damages recoverable under statutory claims.  In my nonscientific, anecdotal… Continue Reading

Fifth Circuit Recognizes Hostile Work Environment Claim Under Age Discrimination in Employment Act

Posted in Age, Case Summaries, Discrimination, Harassment
This week the Fifth Circuit held that a cause of action exists for hostile work environment under the ADEA –the first such express holding in the Circuit.  In Dediol v. Best Chevrolet, the plaintiff filed a hostile work environment and constructive discharge claim against the employer. During the brief two months of employment, Dediol claimed… Continue Reading

Fifth Circuit Holds Loss of Consortium Damages Unavailable To Spouse of Successful Title VII Plaintiff

Posted in Case Summaries, Discrimination, Harassment, Retaliation
The Fifth Circuit held today that a spouse of a successful Title VII plaintiff cannot maintain a legal claim for loss of consortium (i.e., loss of spousal services) under state and federal law.  In Barker, Tracey Barker was a civilian worker employed by Halliburton (aka KBR).  She claimed she was subjected to sexual harassment, retaliation and various… Continue Reading

Anti-Discrimination Provisions Related to Prior Bankruptcy Do Not Apply to Applicants

Posted in Case Summaries, Discrimination
Federal law prohibits private employers from terminating the employment of or discriminating with respect to employment against an individual because the individual is or was a debtor under the Bankruptcy Code.  In a recent decision of the U.S. Court of Appeals for the Fifth Circuit, the appellate court held that the anti-discrimination provisions of the… Continue Reading

Fifth Circuit Holds that FLSA Action Is Improper Forum for Employer to Seek Set-Off Against Wage and Overtime Claims

Posted in Case Summaries, Judicial Updates, Wage & Hour
Employers often consider asserting counterclaims against employees who file lawsuits against them.  Most lawyers representing employers counsel against filing counterclaims except in exceptional cases (e.g., an employee’s theft of trade secrets or breach of a covenant not to compete). However, where an employer pays an employee valuable severance benefits in return for a release or a… Continue Reading