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
Fifth Circuit Affirms Summary Judgment For Drilling Company in WARN Case
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
Fifth Circuit Holds Employer’s No Photography Rule Violated the NLRA but Other Standard Policies Were Lawful
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
Texas Supreme Court Holds Defendant Attorney Fee Data Not Normally Discoverable
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 Supreme Court Rejects Compelled Self-Publication Theory in Defamation Case
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
Two Day Unpaid Suspension Not a Materially Adverse Action in Title VII Retaliation Case
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
Employers Using On-line Acknowledgments to Enter Arbitration Agreements May Face Problems of Proof
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
Fifth Circuit Holds Nonemployee Lacks Claim but Employee Can Recover Emotional Distress Damages in FLSA Retaliation Suit
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
Texas Court Holds Employees on FMLA Leave Not Qualified to Receive Unemployment Benefits
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
Supreme Court Holds Constructive Discharge Administrative Filing Deadlines Commence When Plaintiff Gives Notice of Resignation
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