By Russell Cawyer on Posted in Case Summaries,News & Commentary,Noncompetes and Restrictive Covenants,Trade SecretsIn 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
By Hannah Parks and Russell Cawyer on Posted in Case Summaries,Disability,Reasonable AccommodationIn 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
By Russell Cawyer on Posted in Case Summaries,Wage & HourIn 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
By Russell Cawyer on Posted in Case Summaries,Layoffs and WARNWith 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
By Russell Cawyer on Posted in Case Summaries,Human ResourcesLast 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
By Russell Cawyer on Posted in Case SummariesIn 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
By Russell Cawyer on Posted in Case SummariesAn 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
By Russell Cawyer on Posted in Case Summaries,RetaliationRetaliation 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
By Russell Cawyer on Posted in Arbitration,Case SummariesTexas 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
By Russell Cawyer on Posted in Case Summaries,Retaliation,Wage & HourThe 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
By Russell Cawyer on Posted in Case Summaries,UnemploymentIn 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,RetaliationPlaintiffs 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
By Russell Cawyer on Posted in Case Summaries,Human Resources,Leave of AbsenceA 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
By Russell Cawyer on Posted in Arbitration,Case SummariesIt’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
By Russell Cawyer on Posted in Case Summaries,Race,Retaliation,Sex and GenderIn 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
By Russell Cawyer on Posted in Case Summaries,Harassment,Sex and GenderThe Supreme Court of Texas agreed to hear a case affirming summary judgment in favor of an employer sued for the acts of its supervisor in a sexual assault case. In B.C. v. Steak and Shake Operations, the Dallas Court of Appeals held that the employee’s common law tort claims (i.e., assault, battery, and negligence)… Continue Reading
By Russell Cawyer on Posted in Case Summaries,Wage & HourThe wave of wage and hour collective actions being filed and litigated in the district courts in the Fifth Circuit are making their way to the court of appeals. Last week the U.S. Court of Appeals for the Fifth Circuit issued an opinion in an FLSA case over the compensability of meal periods provided by… Continue Reading
By Russell Cawyer on Posted in Case SummariesIn 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
By Russell Cawyer on Posted in Case Summaries,Discrimination,Harassment,RetaliationIn 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
By Russell Cawyer on Posted in Case Summaries,Wage & HourIt’s a rare day with the U.S. Department of Labor is assessed attorney’s fees against it for bringing a suit against an employer in bad faith. However, in Gate Guard v. Secretary of Labor, the Fifth Circuit Court of Appeals ordered that a trial court award attorney’s fees to a Texas employer in a claim… Continue Reading
By Russell Cawyer on Posted in Case Summaries,RetaliationLast 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
By Russell Cawyer on Posted in Case Summaries,Disability,DiscriminationLast 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
By Russell Cawyer on Posted in Case Summaries,DiscriminationLast Friday, Halloween, the Texas Supreme Court delivered defendants a “treat” in the form of a mandamus opinion articulating the standard for when discovery requests seeking information related to claims other than the plaintiff’s claims crosses the line from seeking relevant information into an impermissible fishing expedition. In In re National Lloyds Insurance Company, the… Continue Reading
By Russell Cawyer on Posted in Age,Case Summaries,DiscriminationAn 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
