Texas Employment Law Update

Texas Employment Law Update

A Resource for Texas Employers

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Fifth Circuit Affirms Summary Judgment for Employer in Transgender Title VII Case

By Russell Cawyer on Posted in Case Summaries, Discrimination

In Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed a trial court’s summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status.  While affirming the judgment for the employer, the Court wrote to reject the district court’s summary conclusion that Title VII prohibited employment discrimination on the… Continue Reading

Supreme Court Enforces Arbitration Agreement that Prohibits Class Action Arbitration

By Russell Cawyer on Posted in Arbitration, Case Summaries, Jury Waivers, News & Commentary, Wage & Hour

I’m traveling for work this week but today’s Supreme Court opinion is one I have been waiting for all term. In Epic Systems v. Lewis, the Court held that arbitration agreements between employees and employers that require mandatory arbitration of disputes can also require that all disputes be arbitrated individually and not as a class… Continue Reading

El Paso Court of Appeals Clarifies Fiduciary Duty At-Will Employees Owe to Employers

By Russell Cawyer on Posted in Case Summaries, News & Commentary, Noncompetes and Restrictive Covenants, Trade Secrets

In Texas, absent a valid noncompete, an at-will employee is generally free to compete with the former employer so long as the employee does not take or use the company’s confidential information or trade secrets. Notwithstanding this general rule, employees also have common law fiduciary duties that limit what activities they can engage in prior to resigning… Continue Reading

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

By Hannah Parks and Russell Cawyer on 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

By Russell Cawyer on 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

By Russell Cawyer on 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

By Russell Cawyer on Posted in Case Summaries, Human Resources

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

Texas Supreme Court Holds Defendant Attorney Fee Data Not Normally Discoverable

By Russell Cawyer on Posted in Case Summaries

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

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

By Russell Cawyer on Posted in Case Summaries

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

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

By Russell Cawyer on Posted in Case Summaries, Retaliation

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

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

By Russell Cawyer on Posted in Arbitration, Case Summaries

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

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

By Russell Cawyer on Posted in Case Summaries, Retaliation, Wage & Hour

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

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

By Russell Cawyer on Posted in Case Summaries, Unemployment

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

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

By Russell Cawyer on Posted in Case Summaries, Discrimination, Retaliation

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

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

By Russell Cawyer on Posted in Case Summaries, Human Resources, Leave of Absence

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

Fifth Circuit Refuses to Enforce Illusory Handbook Arbitration Provision

By Russell Cawyer on Posted in Arbitration, Case Summaries

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

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

By Russell Cawyer on Posted in Case Summaries, Race, Retaliation, Sex and Gender

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

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

By Russell Cawyer on Posted in Case Summaries

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

Texas Statutory Damages Caps Need Not Be Pled As Affirmative Defense

By Russell Cawyer on Posted in Case Summaries, Discrimination, Harassment, Retaliation

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

Texas Supreme Court Reverses Million Dollar Verdict in Retaliation Case

By Russell Cawyer on Posted in Case Summaries, Retaliation

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

Fifth Circuit Resolves Intra-Circuit Split on Important ADA Issue

By Russell Cawyer on 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