Last summer, I detailed the Dallas Court of Appeals’ decision in Marsh USA, Inc. v. Cook where the court held a noncompetition agreement supported only by stock-options as consideration was unenforceable.  You can read that post here. Today, the Supreme Court of Texas announced that it would hear the appeal from the Dallas Court of Appeals.  You can view the order list here.  

Review of the Cook case gives the Court an opportunity to extend (or break) its streak of easing the standards for enforcement of restrictive covenants in Texas that I have previously detailed.  (Post here).

Last week the EEOC issued two Informal Discussion Letters addressing employment practices or policies that might create liability under a disparate impact theory of discrimination.  Since the discussion letters do not constitute official opinions or interpretations of the Commission, the significance of back-to-back letters on the same topic is not the content (the letters do not break any new legal ground or make any surprising pronouncements), but that it suggests the Commission might be interested in finding and bringing more disparate impact claims.  The following is a brief summary of the discussion letters.

The first letter dated February 19, 2010, discusses whether a proposed qualification standard that Public Health Directors possess a master’s degree, without the possibility of substituting experience or other education, violates Title VII.  The Attorney-Advisor of the Office of Legal Counsel noted that if the master’s requirement had a significant disparate effect on a protected group, it might be unlawful if the employer cannot justify that the requirement is "job related and consistent with business necessity" and there is no alternative practice "that would be equally effective in predicting job performance, but that would not disproportionately exclude the protected group."

The second letter dated March 9, 2010, discusses employers’ use of credit checks to screen job applicants.  While acknowledging that the EEOC has no authority to enact legislation to prohibit employer credit checks, its authority does extend to circumstances where an employer’s use of credit information disproportionately excludes minority candidates and the employer was unable to show that the practice was needed to operate safely or efficiently.  The Commission’s Assistant Legal Counsel also noted that in May 2007, an attorney who primarily represents class action plaintiffs against employers testified that "credit checks have not been shown to be a valid measure of job performance."  Including a reference in the discussion letter to testimony opining that credit checks do not effectively predict job performance (and then posting the letter on the Commission’s website) suggests that some at the Commission may share a similar view about the use of credit checks to screen applicants.   

While these Informal Discussion letters do not constitute a written opinion or interpretation of the EEOC they are instructive in that they highlight an issue that the EEOC is focusing at least some of its resources.

By Executive Order dated March 25, 2010, Houston Mayor Annise Parker, added sexual orientation and gender identity as protected categories under the City’s anti-discrimination, harassment and retaliation policy.  The Order prohibits discrimination, harassment and retaliation based on gender identity and sexual orientation in all of the City’s employment, contracting and vending activities and in the provision and accessing of all City services, facilities, programs and activities.

Specifically prohibited the policy are the following:

  • Failing or refusing to hire, recruit, appoint, promote or train any individual or otherwise discipline, demote, transfer lay off, fail to recall, or terminate any individual because of such individual’s sexual orientation and/or gender identity;
  • Limiting, segregating or classifying employees or applicants in a way that would deprive, or tend to deprive, any individual of equal opportunity or otherwise adversely affect the status of the employee or applicant because of the individual’s sexual orientation or gender identity;
  • Failing or refusing to recommend any contract or purchase for award based on a contractor or vendor’s sexual orientation or gender identity;
  • Failing to make available to any member of the public or employee use of a city facility or receipt of city service because of their sexual orientation or gender identity;
  • Impeding access by an employee or member of the public to a city restroom facility that is consistent with and appropriate to that person’s expression of gender identity;
  • Limit participation by any city employee or member of the public in any city-sponsored activity because of the person’s sexual orientation or gender identity in which they would otherwise be permitted to participate.

 You can access a full copy of the Executive Order here.

Yesterday the First District Court of Appeals in Houston issued an opinion I first thought was an April Fool’s joke.  However, since this opinion hasn’t been withdrawn, I presume the Court was serious in holding that the Lilly Ledbetter Fair Pay Act , an act of Congress that has the effect of extending the statute of limitations to certain pay practices, applies to claims filed under the Texas Commission on Human Rights Act.  The Court cites two federal district court opinions similarly holding, but this is the first state court of appeals to apply the federal amendment to Title VII to the state law.  This holding is even more surprising to me given that the Texas Legislature, in its last term, considered adopting provisions similar to the Ledbetter Act, but did not pass those provisions.

The effect of the Houston Court’s opinion is to render state law claims that would have been previously time barred as timely. You can read the First District Court of Appeals’ decision in Prairie View A & M University v. Chatha here.

 

I wrote about an unusual dispute between the EEOC and a San Antonio law firm where the EEOC sought enforcement of an administrative subpoena seeking law firm records in connection with a charge of discrimination filed by a former employee of the firm.  You can read that post here.

Well, like Spring itself that blows in like a lion and out like a lamb, the law firm has provided the information sought by the EEOC subpoena and the EEOC has requested dismissal of its application to enforce the administrative subpoena (which has been granted).  Much ado about nothing after all.  You can review the EEOC’s Motion to Dismiss here.

Since at least 1995 Texas law has provided that women has a right to breastfeed in public in any place in which they are legally authorized to be.  Last week, the health care reform signed by the President amended the Fair Labor Standards Act to require covered employers to provide reasonable break time for nursing mothers to express breast milk for nursing children.  The FLSA is the federal law that requires most employers to pay minimum wages and overtime for hours worked in excess of forty per week.

The new law provides that:

  • Employers must provide reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth;
  • Provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk;
  • Break time is unpaid in Texas (unless of course the employee is an exempt employee entitled to full salary in workweeks where any work is performed).

The law does not apply to employers with 50 or fewer employees if “the requirements would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

As I wrote yesterday, the Wage & Hour Division of the U.S. Department of Labor has ceased issuing detailed, fact-specific opinion letters.  In the first of the Administrative Interpretations the Division will issue in lieu of opinion letters, the Division has concluded that most mortgage loan officers will not qualify for the administrative exemption to the overtime provisions of federal law.

For purposes of the Administrator’s Interpretation, mortgage loan officers includes employees typically having job titles of mortgage loan representative, mortgage loan consultant and mortgage loan originator.  The interpretation outlines the typical duties performed by the employees as receiving internal leads; contacting potential customers; receiving contacts from customers generated by direct mail or other marketing activity; collecting required financial information from customers (including income, employment history, assets, investments, home ownership, debts, credit history, prior bankruptcies, judgments and liens); assessing loan products available for customers and discussing those products with customers; and completing and forwarding completed documents to underwriters or loan processors for closing.

Based on a lengthy review of the typical duties of a mortgage loan officer and the case law analyzing such positions, the Administrator concluded that the typical mortgage loan officer has the primary duty of making sales for their employers and therefore do not qualify for the administrative exemption.  You can access and review the full interpretation here.

The U.S. Department of Labor’s Wage & Hour Division announced it will no longer issue fact-specific definitive opinion letters in response to questions submitted by individuals and organizations.  According to the Division, its opinion letters provide only limited guidance to broad categories of employers and employees where slight factual differences in the facts assumed in the letter could result in a different outcome. 

In the future, the Division intends to issue Administrative Interpretations to "set forth a general interpretation of the law and regulations, applicable across-the-board to all those affected by the provision in issue"  and to "clarify[] the law as it relates to an entire industry, a category of employees, or to all employees."

The Division will continue to respond to requests for opinion letters with references to statutes, regulations, interpretations and cases that relevant to the request but without analysis of the specifics facts presented. You can access the Divisions new Administrative Interpretations page here.

With Congress finalizing a health care reform bill to send to the President, what exactly will the 2,000 page bill mean for Texas employers?  As reported today by U.S.A Today, employers should expect, among other things:

Only time will tell what the true cost of this reform will be for employers and whether the benefits cost.  

This week the Department of Labor published a poster that must be used by all employers employing employees under H-2A visas.  H-2A visa holders are non-immigrant employees employed in temporary or seasonal agricultural jobs.  A copy of the required poster (in English) can be accessed here.  (Spanish here)  This poster is required by federal rules published February 12,  2010 and must be posted in the place of employment both in English and any other language other than English spoken by a significant portion of the workers. 

For more information on the eligibility requirements to employ H-2A employees, see the Department of Labor’s fact sheets that can be accessed here.