Texas Employment Law Update

Texas Employment Law Update

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Category Archives: News & Commentary

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Austin Court of Appeals Temporarily Enjoins Austin Sick Leave Ordinance

Posted in Human Resources, News & Commentary
Earlier this year, the City of Austin passed the first local ordinance requiring employers in Austin to provide paid sick leave to its employees.  The law was scheduled to take effect on October 1, 2018.  Late last week, the Austin Court of Appeals issued a temporary stay of the ordinance while the Texas Association of Business’ interlocutory… Continue Reading

Supreme Court Enforces Arbitration Agreement that Prohibits Class Action Arbitration

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

Department of Labor Rolls Out Pilot Program for Employers to Correct Inadvertent Wage and Hour Violations

Posted in News & Commentary, Wage & Hour
One of the biggest criticisms I have of the FLSA is that it provides no safe harbor or protection for an employer, who having realized it made a wage and hour mistake, to voluntarily self-report and correct its mistake. Instead, it can encourage employers who learn of a potential FLSA violation that has not otherwise been… Continue Reading

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

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

Austin Passes Law Requiring Private Employers to Provide Paid Sick Leave

Posted in Leave of Absence, News & Commentary
This month the City of Austin passed the State’s first municipal paid sick leave ordinance requiring private employers to provide earned sick time to employees. Beginning on October 1, 2018 (and October 1, 2020 for employers with five or fewer employees), employers with employees working in the City of Austin must provide employees with earned… Continue Reading

U.S. Department of Labor Revises and Clarifies Unpaid Intern Test

Posted in Human Resources, News & Commentary, Wage & Hour
The U.S. Department of Labor recently abandoned its six-factor internship test in favor of the seven-factor primary beneficiary test utilized by most Courts. The primary benefit test adopts a temporal limitation for the internship that was not in the old six-factor test and incorporates two elements linking eligibility to the intern’s education programs and academic commitments.  For employers already… Continue Reading

New Tax Law Limits Deductibility of Sexual Harassment and Abuse Settlements Containing Nondisclosure Provisions

Posted in Harassment, News & Commentary
The #Metoo movement and high profile sexual harassment allegations involving prominent Americans has influenced provisions of the new tax reform law.  The Tax Cuts and Jobs Act signed by President Trump on December 20, 2017, limits the deductibility settlements paid on sexual harassment claims where the settlement agreement contains nondisclosure provisions.  Section 13307 of the… Continue Reading

New Lawsuit Claims Companies Discriminate Against Older Workers in Facebook Job Placement Advertising

Posted in Age, News & Commentary
Facebook ads allow advertisers to target their advertising towards a variety of metrics. For example, you can target an ad to users in a city, state or zip code. You can also target particular professions and users in various age bands. In a recently filed age discrimination lawsuit, several large employers are accused of committing age discrimination by… Continue Reading

Employers Using Biometric Systems to Track Hours Must Dot Their I’s and Cross Their T’s

Posted in Human Resources, News & Commentary
Many employers have adopted various technologies for tracking employee worktime.  One type commonly used is the biometric timekeeping system (e.g. fingerprint or retina scanners) that employees use to clock-in and clock-out of work.  A recent putative class action filed in Illinois should act as a reminder that such biometric systems may be subject to state… Continue Reading

Everyday is Take Your Dog to Work Day: EEOC Sues Employer Alleging Ban on Service Dog at Workplace

Posted in Disability, Discrimination, News & Commentary
One of the consequences of the Americans with Disabilities Amendment Act’s expanded definition of disability is that employers are facing a much larger number of accommodation requests and therefore a greater number of potential accommodations. Anecdotally, I have seen a sharp uptick in the number of employees asking employers to bring animals to the workplace claiming… Continue Reading

DOJ to Criminally Prosecute Employers and Individuals that Reach Hiring and Wage Agreements under Federal Antitrust Law

Posted in News & Commentary, Noncompetes and Restrictive Covenants
At the end of October, the U.S. Department of Justice Antitrust Division (DOJ) and Federal Trade Commission (FTC) communicated a significant shift in their enforcement guidance regarding competition among employers to limit or fix terms of employment for potential hires.  In a new publication, Antitrust Guidance for Human Resource Professionals, the DOJ announced its intent to investigate,… Continue Reading

New Developments in Employee Hiring and Noncompetition

Posted in News & Commentary, Noncompetes and Restrictive Covenants
Last week brought several interesting developments on the issue of restrictive covenants and hiring of employees among competitors including 1) the White House’s call to action (CTA) for the States to restrict use of covenants not to compete; 2) the Department of Justice’s announcement that it intends to criminally prosecute employers and executives entering into wage-fixing and… Continue Reading

EEOC to Target Companies Using Non-traditional Working Relationships

Posted in Discrimination, News & Commentary, Wage & Hour
Yesterday, the EEOC published its four-year Strategic Enforcement Plan for fiscal years 2017 through 2021.  The Plan is the Commission’s list of areas of priority where it intends to focus its resources in the next four years.  The purpose of the Plan is to identify those areas the Commission believes are likely to have a… Continue Reading

DOL Publishes Final Rule Requiring Federal Contractors to Provide Paid Sick Leave

Posted in Employee Benefits, News & Commentary
This week the DOL published its final rule requiring federal contractors to provide paid sick leave to employees working on or in connection with federal contracts.  The sick leave required by the final rule would allow an employee to use accrued paid sick leave for their own illness, the need to care for a sick… Continue Reading

Expect a Showdown at the Supreme Court over Class Action Waivers in the Employment Context

Posted in Arbitration, Jury Waivers, News & Commentary
Arbitration agreements containing class action waivers can be an effective way for employers to mitigate risk against defending large scale mass actions filed by employees. And in the Fifth Circuit, the federal Court of Appeals covering Texas, and three other federal circuits, individual arbitration agreement containing class-action waivers are enforceable. In a recent Seventh Circuit Court of… Continue Reading

DOL Announces Details of Final Rule Changing Regulations on the Overtime Exemptions

Posted in Human Resources, News & Commentary, Wage & Hour
Last night the U.S. Department of Labor announced details of its long-awaited Final Rule on changes to the regulations interpreting the overtime exemptions to the Fair Labor Standards Act (FLSA).  The FLSA is the federal law requiring most employers to pay minimum wages and overtime to nonexempt employees.  The Final Rule raises the minimum salary an exempt… Continue Reading

EEOC Publishes Resource on Employer-Provided Leave and the Americans with Disabilities Act

Posted in Disability, Leave of Absence, News & Commentary
This week the EEOC published a resource document intended to provide guidance on providing disabled employees with leave of absence as a reasonable accommodation. According to the Commission, [It] continues to receive charges indicating that some employers may be unaware of Commission positions about leave and the ADA.  For example, some employers may not know… Continue Reading

Austin, Texas Passes Fair Chance Hiring Ordinance for Private Employers

Posted in Human Resources, News & Commentary
The City of Austin, Texas has joined the long list of municipalities nationally that have adopted ordinances restricting employers ability to make inquiries into an applicant’s criminal background and to act on that information.  Under Austin’s new Fair Chance Hiring Ordinance, an employer with fifteen or more employees in the City of Austin may not: publish… Continue Reading

Paying Nonexempt Employees at Different Rates for Different Work

Posted in News & Commentary, Wage & Hour
With the slowdown in the oil patch, many service providers are looking for ways to better match employee compensation with reduced amount of work and revenue available without having to reduce headcount.  One way to accomplish this objective is to pay different rates for different work.  For example, a company may elect to pay a nonexempt employee a… Continue Reading

If Your Company Circulates This Memo, You Might Have and HR Problem

Posted in News & Commentary
According to a recent Vanity Fair article, Zenefits, the company providing cloud-based HR administration systems, circulated a memo to its workforce advising employees that it was against company policy to have sex in the stairwells at work.  The memo “warned staff that smoking, drinking, and having sex was inappropriate office behavior after security found several used… Continue Reading

AT&T Warning Employees to Update Skills or Become Obsolete?

Posted in News & Commentary, Wage & Hour
The New York Times profiled AT&T’s corporate education program where the company offers to pay for all or part of the classes employees take to help modernize their skills. The program has been in place for approximately two years and the purpose of the program, according to the article, is to “retrain its 280,000 employees so they… Continue Reading

EEOC Announces New Procedures for Disclosing Employer Position Statements to Plaintiff Attorneys

Posted in News & Commentary
Last week the EEOC announced that it had issued new practices for transmitting employer position statements to charging parties and their attorneys.  Historically, most Commission field offices did not provide copies of the actual position statements to the charging parties during the course of the investigation.  Rather, investigators typically retyped or summarized relevant positions of the position statement… Continue Reading

Halliburton Agrees to $18M Overtime Settlement with DOL

Posted in News & Commentary, Wage & Hour
The DOL announced a wage and hour settlement with Halliburton where Halliburton agrees to pay over $18,000,000 to over 1,000 workers.  This settlement emphasizes two important points for me.  First, it exemplifies the difficulty even large, publically traded companies can have in determining whether an employee meets one of the white collar exemptions.  The announced settlement covers employees in the job titles… Continue Reading