EMPLOYMENT LAW
Mark A. Shank
Gruber Hurst Johansen Hail & Shank, L.L.P.
1445 Ross Avenue
Dallas, Texas 75202
214-855-6800
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The laws:
1.
2.
3.
4.
5.
6.
7.
Title VII.
Equal Pay Act.
Age Discrimination in Employment Act.
Americans with Disabilities Act.
Texas Commission on Human Rights Act.
Family and Medical Leave Act (over 50
employees).
Pregnancy Discrimination Act.
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The laws (cont.):
8.
9.
10.
11.
12.
National Labor Relations Act.
Fair Labor Standards Act.
Equal Pay Act.
Workers’ Compensation Retaliation.
Fair Credit Reporting Act.
13.
Local Laws and Ordinances.
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Protected categories:
1.
2.
3.
4.
5.
6.
7.
8.
Race
Color
Gender
Age (40 or over)
National origin
Sexual orientation
Citizenship
Union status
9.
10.
11.
12.
13.
14.
15.
Veteran / military
status
Religion
Pregnancy
Disability
Genetic
information
Marital status
Workers' comp
history
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Personnel actions covered:
1.
2.
3.
4.
5.
Recruiting
Hiring
Training
Promotion
Discipline
6.
7.
8.
9.
Compensation
Discharge
Work environment
References
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What is discrimination?
1.
2.
3.
Prima facie case, typically an employee in a
protected group is treated less favorably
than employees outside that group based on
his or her membership in that protected
group.
Employers must have “legitimate, nondiscriminatory reasons” for their decisions.
Stated reason is pretext for discrimination.
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What is Harassment?
HARASSMENT….
is any unwelcome verbal or physical conduct.
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Liability for hostile work
environment by supervisor
1.
2.
Tangible employment action - Strict liability.
No tangible employment action - Can avoid
liability if:
a.
b.
Employer exercised reasonable care to
prevent and correct behavior.
Employee unreasonably failed to take
advantage of the protective or corrective
opportunities offered by the employer.
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Liability for hostile work
environment by co-workers
1.
Employer is liable if it knew or should have
known about the harassment and failed to
take prompt remedial action.
2.
If you know or you had enough facts that
you should have known, the “employer”
knows.
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RETALIATION
PROTECTED ACTIVITY
Opposition
Participation
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ADAAA, Effective 1/1/2009
1.
2.
3.
4.
5.
6.
ADA is Broad & Inclusive.
“Disability” Construed in Favor of Coverage.
No Consideration of Mitigation Measures.
Specific Major Life Activities.
No Longer “Regarded As” Disabled.
Not Retroactive.
Kemp v. Holder, 610 F.3d 231, (5th Cir.
2010)
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LILLY LEDBETTER FAIR PAY ACT
OF 2007
1. Lilly M. Ledbetter v. The Goodyear Tire &
Rubber Co., Inc.
127 S. Ct. 2162, 167 L. Ed.2d 982 (2007)
Time-barred because Discriminatory
Decisions Happened Outside
Limitations Period
2. Act: Each Paycheck Restarts Limitations
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Prairie View A & M University of Chatha
317 S.W.3d 402, Houston [1st Dist.] 2010
1.
2.
3.
4.
Lilly Ledbetter Fair Pay Act: Each payment
affected by past discrimination is a new act
of discrimination.
Texas legislature neglects to amend Chapter
21 to reflect LLFPA.
Question as to whether Chatha’s suit against
Prairie View A&M missed the 180 day
deadline or if last paycheck started the clock.
Court holds LLFPA applies to Chapter 21,
applies no controlling significance to
Legislature’s failure to amend.
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Stolt-Nielsen v. AnimalFeeds
130 S.Ct. 1758 (2010)
1. Department of Justice uncovers Antitrust violations by
Stolt-Nielsen; AnimalFeeds files class action suit.
2. Contract between AnimalFeeds and Stolt-Nielsen has
arbitration clause but silent on class arbitration.
3. AnimalFeeds compels class arbitration, panel determines
clause permits class arbitration and awards damages.
4. Second Circuit vacates award.
5. Supreme Court holds “arbitration is a matter of consent
not coercion;” simple arbitration agreements do not
authorize complex class actions.
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Gross v. FBL Financial Services, Inc.
129 S. Ct. 2343; 174 L. Ed.2d 119
1. Age Must Be Proven Under “But-For”
Standard.
2. Mixed Motive Claims Not Permitted.
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Supreme Court Hears Wal-Mart
Case
(argued March 29, 2011)
1. Gender Discrimination – Millions of
Employees.
2. All Women Since 1998 – Too Broad a Class?
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ADA/FMLA
Most common claims:
1. Failure to accommodate an existing
employee.
a. Schedule changes
b. Time off
c. Job Duties.
2. Failure to hire.
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FMLA Regulations

1. Administrative Interpretations .

2. Definition of “son or daughter.”

2. In Loco Parentis—No blood or legal
relation required. 29 C.F.R.§ 825.122(c)(3).
Garza v. Mary Kay, Inc.
2010 U.S. Dist. LEXIS 84572
1.
2.
3.
4.
5.
Employee of 18 years took FMLA leave.
Unfavorable review concerning her
attendance.
60% of job duties had been reduced or
changed.
Discouraged from applying for another
position by supervisor.
Constructive Discharge a Jury Issue.
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Nassar v. UT Southwest Med. Center
2010 U.S. Dist. LEXIS 97772
1.
2.
3.
4.
5.
Dr. won discrimination case based on his
race/national origin/religion.
Court declined to adjust lodestar up or down
pursuant to Perdue v. Kenny A.
Novelty and difficulty of the issues were
“fully reflected in the number of billable
hours recorded by counsel.”
Court approves $750 per hour rate for lead
counsel.
Awarded $500,000+ in attorney’s fees and
costs.
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Waffle House v. Williams
313 S.W.3d 796 (Tex. 2010)
1. Williams, waitress at Waffle House, allegedly subjected
to offensive sexual comments and contact by one of the
cooks.
2. Williams complained. Waffle House did not take remedial
action.
3. Williams sued for sexual harassment and assault and
battery.
4. Jury awarded $500,000 in compensatory damages and
$3.46 million in punitives. Williams elected to recover on
her common law claims.
5. Supreme Court holds that Williams’ exclusive remedy is
TCHRA: tort is superseded if gravamen of claim is
employment discrimination.
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Vanegas v. American Energy Services
302 S.W.3d 299 (Tex. 2009)
1.
2.
3.
Promise to pay bonus to employees if
company sold/merged.
Illusory but became enforceable by
time of breach.
Enforceable contract where employees
remained employed for the requested
period of time despite their at-will
status.
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Central Texas OP v. Espinoza
Tex. App. LEXIS 9355 (2009)
1. Employer sues employee for breach of fiduciary
duty after he does work for competitor.
2. Employee files counterclaim for unpaid
compensation.
3. Employee wins on summary judgment for
unpaid compensation, but Employer wins jury
trial on breach of duty. Jury awards no
damages.
4. Court of Appeals reverses: holds genuine issue
of material fact exists as to whether Employee
forfeits all compensation because of his breach
of fiduciary duty.
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Fired for Facebook Posts

1. EMT fired for negative remarks

2. NLRB complaint: Overbroad Social
Media Policy

3. Protected Concerted Activity?
City of Ontario v. Quon
130 S.Ct. 2619 (2010)

1. Police Officers Excessive Use of Work Pagers
leads to discipline.

2. Officer files suit for invasion of privacy.

3. Supreme Court holds search was reasonable.
AT&T Mobility LLC v. Concepcion,
563 U.S. ____ (2011)
1. Arbitration provision preventing class
action.
 2. Provision held unconscionable under
California state law.
 3. Supreme Court reverses: FAA preempts
state law.
 4. Impact to employer DRPs?

Employees' Use of Medical
Marijuana

Fifteen jurisdictions have medical marijuana statutes
Alaska, Arizona, California, Colorado, Hawaii, Maine,
Michigan, Montana, Nevada, New Jersey, New Mexico,
Oregon, Rhode Island, Vermont, and Washington, and
Washington D.C.

Rise of discrimination claims for employees
terminated for marijuana use.

Supreme Courts for Oregon and California hold
for employers.
COVENANTS NOT TO COMPETE
1. Sheshunoff/Mann Frankfurt.
2. Interest Worthy of Protection.
3. Scope
a) time
b) geography
c) activity.
4. Greater Restraint than Necessary.
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COVENANTS NOT TO COMPETE
(cont’d)
5. Attorney’s Fees
- To Enforce
- To Defend.
6. Injunction.
7. Reformation.
8. Choice of Law/Choice of Forum.
9. Trade Secret Misappropriation.
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WORKERS’ COMPENSATION
RETALIATION
Most common claims:
1. Discharge;
2. Hostile work environment;
3. Failure to allow light duty.
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FLSA claims
1.
2.
3.
4.
5.
Still multiplying.
Correct classification is key.
Capturing all hours worked is key.
Care in reclassification conversations.
Damages are exponential.
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FLSA
1.
2.
Partial day deductions from PTO
bank.
Yes, so long as PTO time available
DOL Opinion Letter.
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FLSA “Hot Buttons”
1.
2.
3.
Work time issues at the start and end of the
work day.
Time recording issues that complicate class
claims.
Steps an employer can take to minimize the
risks.
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Hours Worked—Generally
1.
2.
Work includes activities that are
- Primarily intended for the benefit of
the employer; and
- Suffered or permitted by the
employer.
“Suffered or permitted” means the
employer knew or should have known
about the activity.
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Hours Worked—
Impact of Alvarez
1.
2.
3.
4.
Supreme Court addressed work time issues
in IBP v. Alvarez in 2005.
Embraced Department of Labor’s
“continuous workday” rule.
Found activities that are integral and
indispensible to principal activities are
themselves principal activities for starting the
workday.
In contract, preliminary and postliminary
activities are not work and do not start the
workday.
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Issues at the Start and End of the
Work Day
1.
2.
3.
4.
5.
6.
7.
Potential work at home.
Commuting and travel time.
Security screening.
Clothes changing and equipment donning
and doffing.
Waiting and walking time.
Pass-down time and employee discussions.
Computers, equipment, and tools.
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Rest Periods
1.
2.
3.
4.
Not required by FLSA.
If granted, breaks of short duration (5-20
minutes) must be compensated.
Cannot offset against other types of work
time such as paid waiting or on-call time.
Break 30 minutes or longer does not have to
be compensated if employee is completely
relieved from duty.
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Meal Periods
1.
2.
3.
Not required by FLSA.
Not work time.
Bona fide meal periods ordinarily 30 minutes.
- Shorter time period may suffice under special
circumstances.
4.
Employee must be completely relieved from
duty for duration of the break.
- Employer need not permit to leave the premises.
5.
“Completely relieved from duty” standard in
the regulations may be yielding to
“predominant benefit” test.
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WACKY CASES
Maternity Clothier Sued for
Pregnancy Discrimination
Talk of “Cat Rape” Not Actionable
Drunken Zamboni Driver Skates
“Too Old, Too Country”
Internet Addiction a Disability?
“Jesus-Guy” Syndrome