An 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
Employee Wins Reversal of Religious Discrimination Defeat at the Fifth Circuit
Last week I wrote about a religious discrimination case where an employer snatched victory from the jaws of defeat at the Fifth Circuit Court of Appeals. This week, we have a Fifth Circuit opinion where the court took away an employer’s victory in another religious discrimination case and sent the case back to the trial court
Texas Supreme Court Holds that Forfeiture Provision In Incentive Plan Not A Noncompete
I wrote about the case of Drennen v. Exxon Mobile over a year ago. Drennen was the case of the Exxon executive who forfeited millions of dollars in incentive compensation when he left Exxon to work for a competitor. You can read the background of the case here. Today, the Texas Supreme Court held that a forfeiture clause
Distinction Between Supervisor/Nonsupervisor Makes $70,000 Difference in Religious Discrimination Case
The status of an employee as a supervisor or nonsupervisor can have a significant impact on the outcome of a discrimination, harassment or retaliation case. For example, if an employee who commits a hostile work environment is a supervisor, the employer could be deprived of valuable legal defenses like the Faragher/Ellerth affirmative defense. A recent case from
Delivery of FMLA Notices by First Class Mail Does Not Rule Out Disputes Over Receipt of Notice
The DOL regulations require FMLA-covered employers to provide various notices to employees. The regulations do not dictate how all of the notices must be delivered. Most employers utilize hand-delivery or regular U.S. mail for most pre-leave notices (eligibility and pre-leave designations) and use U.S. mail almost exclusively for post-leave notices (i.e., when the employee is already out
Fifth Circuit Holds, in Issue of First Impression, that But-For Causation Applies to Claims Arising Under the Jury System Improvement Act
Both federal and Texas law prohibit discrimination against employees for participating in various types of jury service. Imagine an employer defending itself from the accusation that it terminated an employee because of her jury service and then looking across the courtroom to see the individuals who will most likely decide the merits of its case –a
Two Recent “Yawn” Employment Cases from the Texas Supreme Court
There have been two employment cases decided by the Texas Supreme Court in the last several months. However, because I expect them to have little impact on Texas jurisprudence, I have not been compelled to write about them before today. However, in the interest of keeping the blog up-to-date with each of the employment cases from the
Fifth Circuit Holds Confidential Information Policy Protecting Company Financial and Personnel Information Violates the NLRA
In an opinion likely effecting many Texas employers, the Fifth Circuit Court of Appeals held that an employer’s confidentiality policy that prohibited employees from disclosing all company financial and personnel information without a carve-out for employee wage information violated the National Labor Relations Act.
Flex Frac, a non-union employer, required all of its employees to sign the following confidentiality
Fifth Circuit Rejects Argument that Class Action Waivers in Arbitration Agreements Violate the NLRA
I first wrote about the NLRB’s decision that pre-dispute arbitration agreements waiving the right to assert claims as part of a class action violated federal labor law in January 2012 (post). Back then, I thought it was prudent for employers to wait for the result of the the inevitable appeal that would follow before
Fifth Circuit Confirms Use of Fluctuating Workweek Method of Overtime Calculation in Misclassification Case
In settlement negotiations and trial of FLSA overtime misclassification cases, there is usually a disagreement between the parties as to how the unpaid overtime should be calculated. Attorneys representing employees typically want overtime calculated using a 1.5 times the regular rate of pay for each overtime hour that was worked. Attorneys representing companies typically want to utilize