By now we know that the Pittsburgh Steelers will play the Green Bay Packers in Superbowl XLV.  While most people know the game will be played in Cowboys Stadium, fewer realize that Cowboys Stadium is in Arlington, Texas –not Dallas.  Moreover, for the entire week leading up to the Superbowl, ESPN has relocated its headquarters and broadcasts to downtown Fort Worth, Texas.

What does this have to do with Texas employment law?  I’m not sure it has anything to do employment law but since my beloved Cowboys aren’t making an appearance as the first team to ever play a Super Bowl in their home stadium, I have to find some angle to be interested in the game.  As ESPN sets up its studios for broadcasts beginning this weekend, I’ll try to find an employment law connections related to the hosting of the Super Bowl.  If my posts in the next two weeks are infrequent, its because I’m in the parking lot next door watching ESPN’s Mike and Mike in the Morning show.

Photo of crews beginning the set up of ESPN’s studio in Fort Worth, Texas from my office.

The U.S. Supreme Court announced that employees, who never engaged in protected activity, can bring third-party retaliation claims against their employers when they suffer an adverse employment action due to their connection with a person who has engaged in protected activity.

The facts of Thompson v. North American Stainless are straightforward.  In February 2003 North American Stainless was advised by the EEOC that Miriam Regalado filed a sex discrimination charge of discrimination against it.  Three weeks later, Regalado’s fiancee, Eric Thomas, was terminated.  Thomas filed a charge of discrimination of his own alleging that he was fired in retaliation because his fiancee filed a charge of discrimination.  The EEOC found that Thomas had been retaliated against and issued a right to sue letter when conciliation was unsuccessful.

When the case reached the trial court, the judge dismissed the suit finding that Title VII did not recognize third-party retaliation claims.  Because the case was decided on a motion to dismiss (prior to any discovery), the reviewing courts were required to take Thomas’ allegation as true (i.e., that he was in-fact, terminated for his fiance’s charge of discrimination).  The Sixth Circuit Court of Appeals affirmed the dismissal for a different reason.  The Sixth Circuit concluded that Thomas never engaged in protected activity because he didn’t filed a charge on his or his fiance’s behalf prior to his termination and therefore he couldn’t bring a retaliation claim.

The U.S. Supreme Court reversed.  Justice Scalia wrote, in a unanimous opinion (Kagan not participating) that the Court has little trouble concluding that if Thomas was fired because his fiancee filed a charge of discrimination, then he has a claim under the anti-retaliation provisions of Title VII.  The Court refused, however, to provide a bright line test as to which third-parties might have a claim stating:

We expect that firing a close family member will almost always meet the Burlington standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. . .   The significance of any given act of retaliation will often depend upon the particular circumstances.

 In holding that Thompson had a claim, the Court next concluded that Thompson had standing to sue.  The Court held that a plaintiff within the zone of interest sought to be protected by Title VII (i.e., protecting employees from unlawful actions of employer), has standing to bring a claim against his employer even though the employee had not engaged in protected activity himself.  The Thompson opinion clearly expand the scope of potential plaintiffs that can bring claims against their employers regardless of whether or not they engage in protected activity.

You can read the full opinion here. 

Barry Shlachter of the Fort Worth Star Telegram reports today on an employment dispute you rarely see these days.  Shlachter profiles a new lawsuit filed by Saginaw resident Corey Gillespie against Dee King Trucking of Amarillo.  According to the article, Gillespie (a relatively new employee (and importantly not an independent contractor) with the company) was summoned for jury duty in Tarrant County for a misdemeanor criminal case.  Upon advising his employer of his call to service, the company dispatcher told him to "pick up the load or you’re jobless." 

As always, there are two sides to the story.  The article explains that the company reassigned Gillespie’s truck, with his cooperation, because neither knew how long his jury service would last.  Moreover, the company claims that its repeated and multiple attempts to contact Gillespie after his service to arrange for his transportation to Amarillo to pick up his truck were met with only a text message response that the employee had a bad feeling and was going to pass.

While cell phone records, the trial judge’s testimony (the trial judge apparently talked to Gillespie’s employer upon being informed he was jobless and was informed that Gillespie had not lost his job) and other documentary evidence may be key to determining what really happened, with fact questions like these, a jury is likely to be left to decide which version of the truth it believes.  Since most jurors are likely to be employees themselves and all are fulfilling their civic duty by serving on a jury, it is easy to imagine how they might empathize with a plaintiff like Gillespie.  This case provides an important reminder of an employer’s duties with respect to an employee’s jury service. 

In Texas, a private employer may not terminate the employment of a permanent employee because the employee serves as a juror.  Independent contractors and temporary employees are not protected by the Texas law.  An employee who is terminated in violation of the Texas statute is entitled to reemployment, 1-5 years of compensation and attorney’s fees.  The Act further provides for criminal penalties and contempt sanctions.  Similarly, federal law affords jurors in the federal court system with similar protection.

You can access Barry Shlachter’s article about the Gillespie case here for several weeks before it is achieved by the paper.

The blog has been updated with bills enrolled in the Texas Legislature the week of January 11, 2011 likely to effect Texas employers.  This week’s bills include bills targeted at prohibiting workplace smoking; prohibitions against sexual orientation discrimination; payment of wages through payroll card accounts and a bill to require employers to use the federal E-verify system.  You can access all the newly enrolled bills here.

During the 82nd Texas Legislative Session (beginning today), I will track of bills affecting Texas private employers and will link to those bills here.  I intend to update this post weekly to add bills enrolled the previous week and keep a compilation of all employment-related bills here.  Check back weekly for updates.

Bills Enrolled

H.B. 68 (Martinez) (Relating to notice concerning the use of criminal history information in an employer’s hiring process).

H.B. 223 (Strama) (Relating to unemployment compensation modernization).

H.B. 276 (Alonzo) (Relating to the minimum wage -would increase the state minimum wage to the greater of $6.15 or the federal minimum wage).

H.B. 387 (Turner) (Relating to the right of an employee who is a parent of a child enrolled in a special education program to time off from work to meet with certain persons affecting the eduction of the child).

S.B. 64 (Zaffirini) (Relating to the right of an employee who is victim of a crime to time off from work to attend court proceedings related to that crime).

S.B. 280 (Davis) (Relating to unlawful employment practices regarding discrimination in payment of compensation)

S.B. 314 (Zaffirini) (Relating to unemployment compensation eligibility and chargebacks regarding certain persons who are victims or whose immediate family members are victims of sexual assault). 

S.B. 321  (Hegar/Birdwill) (Relating to an employee’s transportation and storage of certain firearms or ammunition while on certain property owned or controlled by the employee’s employer).

H.B. 542 (Dutton) (prohibiting use of an offense dismissed through successful completion of deferred adjudication from being used to deny employment).

H.B. 672 (Christian) (Relating to initial claims under the unemployment compensation system).

S.B. 355 (Ellis); H.B. 670 (Crownover)  (Relating to the elimination of smoking in certain workplaces and public places; providing penalties).

H.B. 667 (Hochberg) (Relating to the payment of wages by an employer through an electronic transfer of funds to a payroll card account).

H.B. 665 (Villareal) (Relating to the prohibition of employment discrimination on the basis of sexual orientation or gender identity or expression).

H.B. 625 (Solomons) (Relating to notice of staff leasing services company workers’ compensation claim and payment information; providing an administrative violation).

H.B. 601 (Jackson, J.) (Relating to requiring employers to participate in the federal electronic verification of work authorization program or E-verify). 

HB 1178 (Flynn) (Relating to employment protection for members of the state military forces).

HB 1219 (Miles) (Relating to the right of an employee to time off from work if the employee and/or the employee’s child is the victim of family violence or a violent felony offense).

HB 1272 (Miller) (Relating to the requiring of employees to participate in the Federal Electronic Verification of Work Authorization Program or E-Verify; establishing an unlawful employment practice and providing criminal penalties).

HB 1275 (Harless) (Relating to the suspension of certain licenses held by employers for knowing employment of persons not lawfully present in the United States).

HB 1202 (Riddle) (Relating to the creation of the offense of an employing or contracting with an unauthorized alien).

HB 1166 (Zerwas) (Relating to the tobacco sensation program for certain public employees and their dependents and to the assessment of the fee on certain public employees who use tobacco).

SB 545 (Seliger) (Relating to employment records for law enforcement officers, including procedures to correct employment termination reports; providing an administrative penalty).

HB 1057 (Anchia) (Relating to business leave time for certain municipal fire fighters and police officers).

SB 439 (Van de Putte) (Relating to the exclusion from unemployment compensation charge back for certain employers of uniform service members).

HB 954 (Lozano) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by employee’s employer).

HB 884 (Howard) (Relating to a limited waiver of sovereign immunity for state and local governmental entities and certain employment lawsuits filed by nurses).

HB 878 (Howard) (Relating to the participation of governmental entities and other employers in a Federal Work Authorization Verification Program; establishing an unlawful employment practice).

HB 681 (Kleinschmidt) (Relating to an employee’s transportation of certain firearms or ammunition while on certain property owned or controlled by the employee’s employer).

It is pretty difficult for a party to get an adverse arbitration award reversed or vacated.  A recent Dallas Court of Appeals decision shows the rare instance were such a reversal occurred.  In Alim v. KBR (Kellogg, Brown & Root) –Halliburton, the Dallas court held that an arbitrator’s failure to disclose, in an employment discrimination, breach of contract and retaliation case, that he had served as an arbitrator in a prior case involving KBR’s party representative and a related company established facts that might create a reasonable impression of the arbitrator’s partiality.  Consequently, the court vacated the adverse arbitration award and remanded for a new arbitration proceeding.  You can access the court’s opinion here.

The El Paso Court of Appeals held this week that a Texas employer can use mandamus petition to challenge a trial court’s jurisdiction where the plaintiff-employee failed to file his charge of discrimination timely.  A link to the opinion is here. 

Senate Bill 314 was enrolled in the Texas Legislature and would exclude, from an employer’s unemployment tax account (i.e., no chargeback), unemployment benefits paid to an employee who left employment because he or she (or their immediate family member) is a victim of sexual assault.  Bill text here.

 

The Texas Legislature commences its 82nd Legislative Session on January 11, 2011.  One of the bills recently enrolled for consideration is a bill to add Lilly Ledbetter Fair Pay Act provisions to the Texas Labor Code.  Senate Bill 280 would extend the statute of limitations for allegations of discrimination in payment of compensation (or other undefined practices) to the last date that such decision was adopted; applied to the individual or when compensation affected, in whole or in part, was last made to the employee.  

S.B. 280 would aide employees who want to sue their employer.  It allows a plaintiff-employee to use the more favorable statute of limitations with respect to discriminatory compensation or other practices without having to bring the case under federal law.  Bringing a claim under federal law has consequences in that those claims are usually tried in federal courts, not state courts.  Currently, employees who want to utilize the more favorable treatment the Ledbetter Act affords generally have to bring their claims under federal law. (But see post, post). 

As several years of cases under the Ledbetter Act tell us, application of the Act can have significant (probably unintended) consequences that only disadvantage employers; not employees.  See post.  

The same bill was proposed in the 81st Legislative Session but was not passed.

Last year the Antitrust Division of the U.S. Department of Justice filed suit against several technology sector companies over their mutual agreements not to recruit each other’s employees through the use of cold-calling. The DOJ contended that such agreements (sometimes called no-switching or no-poaching agreements) had the effect of reducing competition for high tech employees; limited employees’ opportunities to find work with competitors; and interfered with the price-setting mechanism for these employees’ wages, thereby depressing the wages the companies had to pay to retain their employees.

Each company was based in California where noncompetition agreements between employers and employees are unenforceable. Presumable to get around California state law prohibiting noncompetition agreements, the companies obtained similar results by agreeing with one another not to recruit each other’s employees through the use of cold-calls.  

The DOJ filed a complaint alleging that these agreements violated Section 1 of the Sherman Act (i.e., the law that forbids competitors for entering into most agreements that restrict competition).  Simultaneously with the filing of the DOJ Complaint, the government and the subject companies entered into a Final Judgment, Stipulation and Competitive Impact Statement whereby the companies agreed not to enter agreements that restrict their ability to cold call, solicit, recruit or otherwise compete for employees of a competitor except where the agreements are made for legitimate procompetitive collaborations.   Six weeks after the Agreed Final Judgment was entered, Google gave all of its employees a ten (10) percent pay increase.  Coincidence?

Based on the DOJ’s position in the Competitive Impact Statement, no-switching agreements might be permissible are areas where the competitors work as part of a joint venture.  As an illustration, Google and Intel might work together on a joint venture related to a new piece of hardware Google seeks to run its software and search applications. Similarly, certain energy companies may form joint ventures to explore and exploit energy resources in a particular geographic area. No-poaching agreements limited to these  types of joint collaborations would likely pass DOJ scrutiny in those situations whereas a blanket no-hire agreements between competitors would not.

Companies considering whether to enter into a direct agreement with a competitor over the recruitment and hiring of each other’s employees should be cautious.  Such agreements should describe the legitimate, joint interest shared by competitors giving rise to the need for the agreement; narrowly tailor the no-direct-solicitation provision to only apply to those employees likely to be directly involved in the joint venture; identify with reasonable specificity the employees subject to the no-direct-solicitation provision; and include a specific termination date or event to end the agreement. Those agreements should be carefully scrutinized by counsel and narrowly tailored so as to not draw unwanted attention from the Department of Justice.