In the News

Texas Super Lawyers Features 91 Haynes and Boone Lawyers

Ninety-one Haynes and Boone, LLP lawyers have been recognized in the Texas Super Lawyer 2013 award listing. >>



Recent Publications

NLRB General Counsel Authorizes Complaints against McDonald’s, Classifying Franchisor as Joint Employer with Franchisees

The National Labor Relations Board’s (“NLRB” or the “Board”) general counsel Richard Griffin announced July 29, 2014 that he had authorized complaints in 43 unfair labor practice cases alleging that franchisor McDonald’s, USA, LLC is a joint employer with its franchisees. >>

Professional Safety Guest Article: The I2P2 Debate

Although its fate is uncertain, the debate continues over the passage of a federal-level injury and illness prevention program (I2P2) regulation. OSHA continues to emphasize its commitment to I2P2. >>

Practical Law Guest Article: Emergency and Business Continuity Planning Checklist

Employers and their counsel need look no further than the events surrounding Hurricanes Katrina and Rita and, most recently, Hurricane Sandy and the tornadoes in Oklahoma to understand the importance of disaster planning. >>



Matthew Thomas Deffebach

Partner

Houston


1221 McKinney Street
Suite 2100
Houston, Texas 77010
T +1 713.547.2064
F +1 713.236.5631

Areas of Practice

Education

  • J.D., University of Houston Law Center, 1999
  • B.A., Political Science and Speech Communication, Trinity University, 1993, cum laude

Bar Admissions

  • Texas

Court Admissions

  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. District Court for the Southern District of Texas
  • U.S. District Court for the Northern District of Texas
  • U.S. District Court for the Eastern District of Texas
  • U.S. District Court for the Western District of Texas
Matthew Thomas Deffebach

Matthew Deffebach is Co-Chair of the Litigation Department and Chair of the Labor and Employment Practice Group at Haynes and Boone. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. 

Employment Litigation: Mr. Deffebach has defended clients in all stages of arbitrations and civil trials, including notable representations in the following matters since 2012:

  • Lagos, et al. v. Cogent Communications (S.D. Tex. 2014) (granting Motion to Decertify nationwide collective action);
  • Ihegwood v. Harris County Hospital District, 929 F. Supp. 2d 635 (S.D. Tex. 2013) (granting summary judgment on Title VII and ADA claims);
  • Peterson Group v. PLTQ Lotus Group, 417 S.W.3d 46 (Tex. App. – Houston [1st Dist.] 2013) (reversing on alter ego finding);
  • Grenado v. White Cap Construction, (El Paso County Court of Law 2012) (granting summary judgment on Chapter 21 discrimination and retaliation claims).

Litigation: Mr. Deffebach has tried, as first chair, the following to a judge, jury or arbitrator since 2012:

  • Defense of breach of contract;
  • Defense of ERISA denial of benefits;
  • Defense of non-subscriber negligence;
  • Defense of fraud, breach of contract, and breach of fiduciary duty;
  • Defense of non-subscriber negligence.

Occupational Safety and Health (OSHA) and Workplace Disasters: At the administrative level, Mr. Deffebach has represented employers in contesting citations and defended corporations in actions brought by federal and state departments of labor. Mr. Deffebach is national OSHA counsel for The Home Depot. He has represented employers nationally in disputes with OSHA or state-equivalents in Arkansas, California, Colorado, Connecticut, Florida, Georgia, Hawaii, Indiana, Maine, Maryland, Minnesota, New York, North Carolina, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Washington, and West Virginia, including the following since 2012:

  • Assisted a client with an investigation into a five-alarm fire, which caused over $35 Million in damages.
  • Successfully defended clients in OSHA administrative trials including fatality matter in Texas, PSM inspection in Texas, fall protection case in California, state-wide machine guarding case in Maryland, and PPE matter in California.
  • Defended a national employer in two separate OSHA proceedings where the Department of Labor withdrew its citations entirely on the eve of trial in both matters.

Recognitions

  • Recognized as a Best Lawyer in America in Litigation - Labor and Employment (2015).
  • In 2013, he received the 2013 International Law Office (ILO) and Lexology Client Choice award as the sole recipient in the Employment and Labor category in Texas.
  • In 2010, Law360 named him a rising star and one of 10 employment lawyers under 40 to watch.
  • He was selected for inclusion in Texas Super Lawyers – Rising Stars Edition (2005-2010).
  • Mr. Deffebach was recognized as a Texas Super Lawyer by Texas Monthly in Employment and Labor (2010-2014).

Publications

  • “The Top 10 Mistakes in an Investigation,” American Society of Safety Engineers, 2014.
  • “The I2P2 Debate,” co-author, Professional Safety, May, 2014.
  • “Regulatory Issues of Social Media,” co-author, State Bar of Texas Advanced Business Law Seminar, November, 2013.
    "Emergency and Business Continuity Planning," co-author, Practical Law Magazine, November, 2013.
  • "Employers May Face New Silica Rules When the Dust Settles," Law360, September 13, 2013.
  • "OSHA Plans and Projections for 2013," RILA Report: Asset Protection, March 22, 2013.
  • “Social Media Law,” co-author, BNA Corporate Practice Series, No. 91, 2013.
  • "OSHA in an Election year: Enforcement, Enforcement, Enforcement," State Bar of Texas, Corporate Counsel Section Newsletter, Fall 2012. 
  • "Is the Safety On or Off? OSHA Takes Aim at Workplace Violence," American Society of Safety Engineers 2012 Annual Conference.
  • "How to Make Your Social Media Policy Stick," Matthew T. Deffebach, PR News (February 8, 2012).
  • "On The Lookout: OSHA Inspectors Are Targeting More Small Businesses," Matthew T. Deffebach, Franchising.com (January, 24, 2012).
  • "Social Media Policy a Must-Have in 2012," Matthew T. Deffebach, PR News (December 15, 2011).
  • "Blocking Employee Use of Social Media? It's Time to Rethink Why," Matthew T. Deffebach, PR News (November 10, 2011).
  • "Workplace Safety and Workforce Behavior and Privacy Issues," Matthew T. Deffebach, National Business Institute (November 2011).
  • "Violators Beware: OSHA is Committed to Enforcement and Transparency," Matthew T. Deffebach, Trace R. Blair, and Emma Cano, Zephyr Current (October 2011).
  • "Defeating the Trump Card: Legal Limits on OSHA's Use of the General Duty Clause," Co-author with Erin Shea, American Society of Safety Engineers 2011 Annual Conference (June 2011).
  • "OSHA's Catchphrase: General Duty," co-author with Erin Shea, Law360 (May 11, 2011).
  • "Business Community on Notice with OSHA," Matthew T. Deffebach and Karen Coomer Denney, Fort Worth Business Press (April 2011).
  • "When OSHA Comes Calling: Legal Limits On OSHA Inspections," Matthew T. Deffebach, American Society of Safety Engineers 2010 Annual Conference (June 2010).
  • "FMLA and Equitable Estoppel," Matthew T. Deffebach and Brenna Nava, Law 360 (August 2, 2009).
  • "The Unpreventable Employee Misconduct Defense," Matthew T. Deffebach, American Society of Safety Engineers 2009 Annual Conference (July 2009).
  • "Bill Precludes Gun Bans in Workplaces," Matthew T. Deffebach and Janet Ayyad, Texas Lawyer (May 25, 2009).
  • "Don't Give it all Away: Employee Confidentiality and Non-Competition Agreements," Dean J. Schaner and Matthew T. Deffebach, Growth (November 2005).
  • "Employers must ponder dangers of 'second-hand' harassment," Dean J. Schaner and Matthew T. Deffebach, Houston Business Journal (October 10, 2005).
  • "Discipline and discharge: Avoid 'nearly identical employee' issues," Houston Business Journal (February 11, 2005).
  • "Recent OSHA Developments of Interest to Energy Law Practitioners," Dean J. Schaner and Matthew T. Deffebach, Oil, Gas and Energy Resources Law Section Report (September 2002).

Memberships

  • Trinity University Alumni Association
  • American Society of Safety Engineers
  • Retail Industry Leaders Association
  • American Bar Association OSHA Subcommittee

Selected Representative Experience


Obtained an Agreed Permanent Injunction for Optical Machine Company
Filed a lawsuit on behalf of an optical sorting machine company and eventually obtained an agreed permanent injunction with the following general concessions: (1) Defendants will not interfere with any of plaintiff's business relationships; (2) Defendants warrant that all of plaintiff's proprietary and confidential information was returned; and (3) Defendants will not use or disclose any of plaintiff's proprietary and confidential information.

Edith Ihegword v. Harris County Hospital District; Civil Action No. H-10-5180; In the United States District Court for the Southern District of Texas, Houston Division (Decision Date: March 7, 2013)
Obtained summary judgment for client on all of plaintiff's claims, including a failure to accommodate claim under the Americans with Disabilities Act, a national origin discrimination claim under Title VII, a failure to pay overtime claim under the Fair Labor Standards Act and Chapter 61 of the Texas Labor Code, and a retaliation claim.

“Single Employer” Title VII Issue in Franchisor-Franchisee case for Berryhill Hot Tamales
In a matter regarding when a franchisor can be potentially held liable for the acts of one of its independent franchisees, our team obtained summary judgment for a restaurant franchisor, Berryhill Hot Tamales. Our client’s independent franchisee was alleged to have violated Title VII regarding allegations of sexual harassment. The plaintiffs sought to create liability for the franchisor by arguing that it was a joint employer or “single enterprise” along with the franchisee.

Big Win for Client in Multi-Plaintiff Discrimination and Retaliation Case
Successfully obtained summary judgment for White Cap Construction in a lawsuit filed by two plaintiffs claiming retaliation and national origin, age and sex discrimination. The plaintiffs were the store manager and assistant store manager at the El Paso branch. The assistant store manager claimed that a theft investigation was initiated by a younger manager who wanted his job but the court agreed that no credible facts supported that the assistant manager's termination or the store manager's constructive discharge were motivated by discriminatory or retaliatory animus.

Davie, Florida, OSHA Late Notice of Contest - Foot Protection and Recordkeeping Violations
OSHA alleged, among other things, that Home Depot employees were not wearing appropriate foot protection, namely, steel toe shoes. We were preparing for trial, including the introduction of expert witness testimony on the foot protection citation, when the Secretary of Labor withdrew the citations before trial, resulting in a complete victory for Home Depot.

New York, New York Eye Wash Exposure and Eye Wash Facilities OSHA ALJ Trial
We represented Home Depot in contesting an OSHA citation in New York where OSHA alleged that the retailer lacked suitable eye wash facilities for treating employees who could supposedly get chemicals in their eyes while cleaning up spills of consumer products in the garden department. We, among other things, challenged whether the agency could meet its burden to prove exposure to any hazardous chemical that would require a 15-minute continuous flush eye wash station. Our efforts resulted in the Secretary of Labor withdrawing the citation on the eve of trial, resulting in a complete victory for Home Depot.

Washington, Safety Committee Variance
We represented Home Depot in applying for a variance from the Washington Division of Occupational Safety and Health ("DOSH") requirement that employers maintain safety committee elections. In doing so, we drafted the variance application and interfaced with DOSH officials regarding the merits of the variance. Our efforts resulted in DOSH awarding Home Depot a permanent variance.

Houston, OSHA Crane Violations
We represented a Houston-based demolition company in its defense of crane violations issued by OSHA. We were able to demonstrate to OSHA that some citations were inapplicable, which resulted in their dismissal. Further, a reduced penalty was negotiated, resulting in a favorable settlement for the client.

Maryland OSHA Machine Guarding
Maryland OSHA issued several citations to Home Depot stores throughout the state regarding an alleged amputation risk associated with unguarded portions of large cardboard balers. We handled the matter from the ALJ level through appeal, obtaining a complete dismissal of the applicable machine guarding citation. In doing so, we convinced the Appeals Board that no exposure existed to Home Depot Associates.

FLSA Exempt Classification - Southern District of Texas
We represented a restaurant group that was sued under the FLSA for misclassifying the chef position. We were retained four days before a summary judgment hearing to substitute in as new counsel. Before our retention, our client had deemed admissions against it and an untimely summary judgment response on file. Plaintiff was moving for summary judgment based, in part, on the deemed admissions. We were able to have the deemed admissions withdrawn and the summary judgment was denied. We then assisted the client on a favorable settlement.

U.S. Secretary of Labor - Arkansas Matter
We quickly responded to a catastrophic fatality event by arriving at our client's facility to prepare for the OSHA investigation. We interviewed numerous employees and prepared managers for their interviews in the investigation process. We managed the interplay of private claims from the estate of the deceased along with the investigation. OSHA issued only a handful of citations with minimal fines. OSHA did not cite our client for any infractions linking the incident to non-compliance with the applicable OSHA standards.

U.S. Secretary of Labor
We represented a manufacturer in the Dallas-Fort Worth area who was cited with more than 40 citations, including alleged willful violations of the Occupational Safety and Health Act. The proposed citation fines were in the six figures. We assisted the client with an aggressive campaign to identify flaws in the investigation methodology, especially in areas of noise conservation and respiratory protection, to present a firm defense at the informal conference. Our response also included the defense of vindictive prosecution by the government. The matter moved to contested proceedings and we obtained a favorable resolution after the hearing with the settlement judge.

American Wires v. Texas Auto Solutions et al. (61st Dist. Ct., Harris County, Tex. 2010)
Represented after-market automobile parts distributor in case involving breach of a non-competition agreement and misappropriation of confidential information. We obtained a partial summary judgment and judgment after a bench trial on both of claims in the approximate aggregate amount of $795,000, in addition to a permanent injunction restraining the defendants from continuing to misappropriate the client's confidential and proprietary information.

Secretary of Labor v. The Home Depot #6512,OSHRC, No. 07-0359 (September 2009)
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” Specifically, in a matter in which Haynes and Boone represented the employer/respondent, the Commission clarified that simply because a fatality or injury occurs while at work, this is insufficient to presume the cause was work-related to trigger OSHA reporting or presumably injury-log recording duties. Rather, the Secretary of Labor must present evidence of a work-related event or exposure.

PLTQ Lotus Group v. Peterson Group and Wellington Yu; Harris County, Texas District Court (July 2009)
Lead counsel in a three-week trial where our client's principal was alleged to have engaged in fraud and other torts regarding his employment services on a development project. Based on information learned in discovery, our client's principal faced a significant threat of a verdict against him on these claims with more than $11 million being sought against him and his companies. In the end, the jury threw out the majority of claims and awarded less than $10,000 in damages against our principal on a claim with no attorneys' fees.

California Department of Labor, Docket No. 05-R1D4-1572 (California 2006-2008)
The underlying allegation involves whether our client as the primary employer on a multi-employer worksite must provide alternate means of fall protection to employees of a contractor who tarp loads of lumber on flat bed trucks at a distribution center. The Administrative Law Judge granted our client’s appeal of the citation and vacated the fall protection citation. In doing so, the Judge agreed that our client was neither the creating or controlling employer of the hazard.

Commissioner of State of Minnesota matter, OSHA Docket No. 8878 (Minnesota 2007)
On the eve of trial, the Assistant Attorney General settled on terms favorable for our client in a matter involving alleged improper guarding of a cardboard baler and electrical junction box hazards.

Utah Occupational Safety and Health Matter, Case No. 5309164564 (Utah 2006-2007)
When a temporary worker was fatally injured while working on a front-end loader, OSHA cited our client for failure to have trained the worker on lockout/tagout procedures implicated by the accident. After engaging in extensive discovery, we were able to favorably settle the matter shortly before trial.

U.S. Secretary of Labor Texas Matter, OSHRC Docket No. 07-0359 (Texas 2007)
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” Specifically, in a matter in which Haynes and Boone represented the employer/respondent, the Commission clarified that simply because a fatality or injury occurs while at work, this is insufficient to presume the cause was work-related to trigger OSHA reporting or presumably injury-log recording duties. Rather, the Secretary of Labor must present evidence of a work-related event or exposure.

U.S. Secretary of Labor - Florida matter, (Florida 2006-2007)
Following the fatality of a contractor, OSHA launched an investigation. Immediately following the fatality, and contemporaneously with OSHA’s investigation, our client implemented an overall safety compliance audit and implemented best practices well in advance of receiving the OSHA citations. Our designed strategy was to proactively address safety improvements, whether possibly related to the accident or not, in an effort to demonstrate an overall safety commitment to OSHA. This strategy was effective. The cited items and fines were well-below the expected range for the length of the inspection at issue and the underlying fatality. Significantly, the citation contained no allegation that the Company’s purported failure to comply with the cited regulations caused or contributed to the contractor’s death. This resulted in a favorable settlement for our client.

U.S. Secretary of Labor - West Virginia matter, OSHRC Docket No. 05-0399 (West Virginia 2005)
Following multiple inspections at West Virginia facilities, OSHA issued citations concerning our client’s permit required confined space program. Under § 1910.146(c)(7)(iii), after an employer has reclassified a Permit Required Confined Space (“PRCS”) to a non-Permit Required Confined Space (“NPRCS”), the employer must create a certification document, which contains the date, the location of the space, and signature of the person making the determination that the hazards in the otherwise PRCS have been eliminated. Our client completes this § 1910.146(c)(7)(iii) certificate annually for the compactor space of various refuse collection trucks when authorized Technicians work in the compactor space. OSHA maintained that the NPRCS certification should have been created for each and every entry by a Technician entering the confined space, imposing a significant documentation burden on the employer. One day after we filed a Motion for Summary Judgment, the Department of Labor dismissed the case in its entirety and issued a de minimis citation.

U.S. Secretary of Labor - Whistleblower matter, Matter No. 6-3280-05-036 (Texas 2005)
Obtained a complete dismissal from OSHA regarding a former employee’s Section 11(c) retaliation/discrimination complaint. We convinced OSHA that the Company discharged the employee for a legitimate, non-retaliatory reason.

Co-Worker Sexual Harassment and an Employee’s Obligation to Act Reasonably; Harvill v. Westward Communications, 433 F.3d 428 (5th Cir. 2005), Hockman v. Westward Communications, 407 F.3d 317 (5th Cir. 2004)).
While the Hockman court found potentially egregious conduct was not harassment as a matter of law, both Hockman and Harvill assist employers when complaining employees act unreasonably. Traditionally, the court’s inquiry of whether a company may avoid liability for co-worker harassment is limited to the question of whether the employer knew or should have known of the alleged harassment and failed to take prompt, remedial action. Accordingly, whether a plaintiff acted reasonably or unreasonably in bringing a complaint to management’s attention is a matter for supervisory harassment claims only, which operate under a different set of liability principles. We argued for adoption of the supervisory harassment “reasonableness” standard in co-worker harassment cases and the Courts agreed. Now, an employer may be able to avoid liability in co-worker harassment claims if the employee unreasonably failed to take advantage of corrective opportunities provided by the employer.

FLSA Collective Action—Off the Clock Claims
In the United States District Court for the Southern District of Texas - Houston Division. Represented the holding company of various Chevron gas stations in an FLSA collective action maintained by a proposed class of gas station cashiers who were allegedly told to work off the clock. Successfully prevailed at the conditional certification stage and the court denied Plaintiff’s motion for conditional class certification. This matter was then resolved on favorable terms.

Southwest Fire Protection and Universal Sprinklers v. Thomas Carberry (state district court-Houston)
Filed lawsuit on behalf of companies against former shareholder of company for breach of stock purchase. After trial, the court issued final order finding violation of shareholder agreement, enjoining former shareholder from future conduct in violation of agreement, and awarded companies damages by ordering former shareholder to forfeit retained ownership interest in parent company.

FLSA Collective Action—Off the Clock Claims; In the United States District Court for the Southern District of Texas—Houston Division
Represented the holding company of various Chevron gas stations in an FLSA collective action maintained by a proposed class of gas station cashiers who were allegedly told to work off the clock. Successfully prevailed at the conditional certification stage and the court denied Plaintiff’s motion for conditional class certification. This matter was then resolved on favorable terms.

FLSA Collective Action—Overtime Compensation for Meal Breaks; In the 269th Judicial District Court of Harris County, Texas
Represented a hospital district in an FLSA collective action maintained by a proposed class of anesthesia technicians, registered nurses and licensed vocational nurses who were allegedly required to work through meal breaks that were automatically deducted from their paychecks. The putative class potentially included over 2,000 members. We prevailed at the conditional certification stage when the court denied plaintiffs’ motion for conditional class certification. Thereafter, the named Plaintiffs non-suited their case with prejudice before trial.

FLSA Collective Action—Misclassification of Pipeline Controllers; In the United States District Court for the Southern District of Texas—Houston Division and the American Arbitration Association
Plaintiffs proposed to represent a class of pipeline controllers throughout the United States who were allegedly misclassified as exempt under the FLSA administrative exemption. The court conditionally certified the class, but we successfully limited the potential class to only certain grades of pipeline controllers. Further, after challenging plaintiffs’ faulty notice and successfully resolving the federal court lawsuit, only two claimants remain in arbitration.

Online Publications

08/01/2014 - NLRB General Counsel Authorizes Complaints against McDonald’s, Classifying Franchisor as Joint Employer with Franchisees
The National Labor Relations Board’s (“NLRB” or the “Board”) general counsel Richard Griffin announced July 29, 2014 that he had authorized complaints in 43 unfair labor practice cases alleging that franchisor McDonald’s, USA, LLC is a joint employer with its franchisees.

06/02/2014 - Professional Safety Guest Article: The I2P2 Debate
Although its fate is uncertain, the debate continues over the passage of a federal-level injury and illness prevention program (I2P2) regulation. OSHA continues to emphasize its commitment to I2P2.

11/04/2013 - Practical Law Guest Article: Emergency and Business Continuity Planning Checklist
Employers and their counsel need look no further than the events surrounding Hurricanes Katrina and Rita and, most recently, Hurricane Sandy and the tornadoes in Oklahoma to understand the importance of disaster planning.

09/13/2013 - Law360 Guest Article: Employers May Face New Silica Rules When the Dust Settles
On Aug. 23, 2013, the Occupational Safety and Health Administration released notice of a proposed rule to set a new permissible exposure limit (PEL) for respirable crystalline silica, among other requirements for controlling workplace exposure to silica.

08/28/2013 - OSHA Releases New Proposed Silica Rule
The Occupational Safety and Health Administration (OSHA) has released notice of a proposed rule to set new Permissible Exposure Limits (PELs) for respirable crystalline silica, among other requirements for controlling workplace exposure to silica.

07/11/2013 - Just Released: OSHA’s Current Regulatory Priorities
On July 3, 2013, the Department of Labor issued its Semiannual Agenda of Regulations. Executive Order 12866 requires the semiannual publication of the listing of all regulations the Department of Labor expects to have under active consideration for promulgation, proposal or review during the coming one-year period. Here are some of the highlights regarding OSHA’s agenda.

07/03/2013 - New OSHA National Emphasis Program on Isocyanates
The Occupational Safety and Health Administration (“OSHA”) has announced a new National Emphasis Program (“NEP”) to protect workers from the health effects from occupational exposure to isocyanates.

07/02/2013 - June 24, 2013: A Good Day for Employers Defending Against Title VII Claims - The U.S. Supreme Court Issues Two Significant Victories
In 2012, more than 99,000 charges of discrimination were filed with the U.S. Equal Employment Opportunity Commission. Of these charges, 31,208 of them alleged retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”). On June 24, 2013, the United States Supreme Court issued two much-anticipated employment law rulings, both of which are beneficial to employers confronted with these charges.

05/02/2013 - OSHA Wants to Know: Are You Keeping Your Temporary Workers Safe?
If your company utilizes temporary workers supplied by a staffing agency, you may be a target of OSHA. On April 29, 2013, the Deputy Assistant Secretary of OSHA, Richard Fairfax, issued a memorandum to its Regional Administrators, entitled “Protecting the Safety and Health of Temporary Workers.”

04/29/2013 - Lessons Learned from Otis Elevator When Contesting OSHA Citations: Avoid Hypotheticals When Asserting the Infeasibility Defense
On April 8, 2013, the Occupational Safety and Health Review Commission (“OSHRC” or the “Review Commission”) reversed an administrative law judge’s (“ALJ’s”) decision vacating a lockout/tagout (“LOTO”) citation issued to Otis Elevator Company (“Otis”).

03/19/2013 - Oil Field Health and Safety Issues: Common Problems and Innovative Solutions
A roundtable discussion regarding common health and safety problems in the oil field and approaches companies are taking to address them.

10/10/2012 - OSHA in an Election year: Enforcement, Enforcement, Enforcement
This article briefly addresses OSHA coverage and basic regulatory requirements placed on employers before reviewing OSHA’s current enforcement and regulatory initiatives.

04/27/2012 - Think Globally, Act Locally (in Your Workplace): Changes to OSHA’s Hazard Communication Standard
The Occupational Safety and Health Administration (“OSHA”) recently released a final rule that aligns its hazard communication standard (29 C.F.R. § 1910.1200) with the United Nations’ Globally Harmonized System for Classification and Labelling of Chemicals (“GHS”).

03/01/2012 - OSHA in an Election Year: Enforcement, Enforcement, Enforcement
This year promises to bring even more headlines than 2011 regarding workplace safety and the agency empowered to regulate it - OSHA. Given the increased scrutiny that regulators feel with election-year politics, the agency will have to pick its battles carefully when pursuing changes through new or updated regulations.

02/11/2012 - Make your Social Media Policy Stick
When it comes to monitoring employee social media use and, in turn, compliance with your policies, companies are generally governed by the Electronic Communications Privacy Act (ECPA), passed in 1986.

02/08/2012 - PR News "PR Insiders" Guest Column: How to Make Your Social Media Policy Stick
Your company is among the growing number that has embraced social media and outlined benefits for its use in the workplace. Better yet, it has taken the next step and has developed a social media policy.

01/24/2012 - Franchising.com Guest Article: On The Lookout - OSHA Inspectors Are Targeting More Small Businesses
For months, Republicans in Washington have been beating a steady drumbeat about the harm regulations have on businesses, the economy, and job creation.

12/16/2011 - PR News "PR Insiders" Column: Social Media Policy a Must-Have in 2012
Employers across the country are learning that it is no longer feasible to ignore social media.

11/10/2011 - PR News "PR Insiders" Column: Blocking Employee Use of Social Media? It's Time to Rethink Why
Today’s explosion of social media in many ways mirrors the disruptive impact of the Internet itself back in the 1990s.

09/23/2011 - The New Workplace Violence Cops: "Whatcha Gonna Do When OSHA Comes For You?
As a result of OSHA’s recently issued directive on workplace violence, the cops may not be alone in investigating incidents of workplace violence. OSHA is now in the business of policing workplace violence.

09/07/2011 - NLRB Social Media Status Update: Is the Board Sending Employers a Friend Request?
Since the famous “Facebook firing” complaint in late 2010, many observers have worried that the majority-Democrat National Labor Relations Board’s (“NLRB” or the “Board”) social media focus was an attempt to establish pro-union, anti-employer precedent, giving employees free rein to disparage and criticize their employers online.

09/01/2011 - Dude, Where's My Disclosure? Don't Get Punk'd by FTC Regulation of Employee Social Media Use
As Ashton Kutcher has learned, the Federal Trade Commission takes online endorsements seriously. Recently, the actor and avid Twitterer edited an online issue of Details magazine that plugged several technology start-ups without clarifying that Kutcher had invested in many of them.

08/02/2011 - OSHA Warns Employers of More Aggressive Enforcement
Supporting OSHA’s aggressive semi-annual regulatory agenda, Deputy Assistant Secretary of Labor for OSHA, Jordan Barab, recently warned a research symposium that, “despite what goes on in Congress, [OSHA] [has] absolutely no intention of pulling back or retreating.” Barab alerted attendees that OSHA’s regulatory agenda aims to extend enforcement beyond traditional manufacturing and construction sectors.

05/11/2011 - OSHA's Catchphrase: General Duty
What if Title VII had a provision that mandated, “in addition to specific protected traits (sex, race, religion, etc.), all employers have an obligation to protect employees from discriminatory conduct based on other recognized traits (smoker, obesity, red hair, etc).” 

04/18/2011 - Fifth Circuit Rules Harassment Claims Not Viable Under USERRA
On March 22, 2011, the Fifth Circuit ruled that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) does not support a cause of action for hostile work environment. This is the first ruling from any Circuit Court regarding the issue.

03/09/2011 - Employers’ Cat’s Paw Liability: Watch Out for the Monkey Business of Supervisors
In a case decided last week, Staub v. Proctor Hospital, a unanimous United States Supreme Court finally addressed the application of the “cat’s paw” theory of liability to employment discrimination claims, holding that an employer can be liable for an employment action motivated by a non-decision maker’s discriminatory animus.

02/22/2011 - OSHA 2010 and 2011: A Review of OSHA’s Expanded Enforcement Initiatives in 2010 and the Outlook for 2011
The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance.

02/17/2011 - OSHA Administrative Penalty Information Bulletin
OSHA is implementing several changes to its administrative penalty calculation system.

02/03/2011 - Have You Checked The Records? OSHA Continues to Emphasize Recordkeeping Compliance in 2011
After launching a National Emphasis Program (“NEP”) on recordkeeping in 2009, OSHA has focused increasingly more on recordkeeping compliance when conducting workplace inspections.

01/31/2011 - FLSA Year in Review 2010: Death Star Workers Were Independent Contractors; Other Cases Also Side With Empire
FLSA year in review, a look ahead: Expect the DOL to continue its aggressive enforcement of the wage and hour laws which, of course, will likely lead to more litigation over alleged wage and hour violations.

01/14/2011 - Haynes and Boone: Continuing to Set Pro-Employer Precedent in Sexual Harassment Law
The Equal Employment Opportunity Commission received more than 12,000 charges in 2009 from employees claiming sexual harassment—a 6 percent increase from three years ago. Although harassment claims are on the rise, Haynes and Boone continues to secure significant sexual harassment victories for its clients, and employers overall.

10/15/2010 - Veterans’ Benefits Act of 2010 - Expanding Employee Protection Under USERRA
Before heading into the pre-election recess, the Senate passed the Veterans’ Benefits Act of 2010 on September 28, 2010. See H.R. 3219, 111th Cong. (2d Sess. 2010). The Act, which passed in the House over one year ago, is a compromise measure between the House and the Senate and encompasses several veterans’ benefits bills. Of notable importance to employers is the Act’s expansion of employee protection under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

08/03/2010 - Overview of Proposed Changes to the OSHA Act Under the Miner Safety and Health Act of 2010
Haynes and Boone has prepared an overview of provisions under the Miner Safety and Health Act of 2010 pending in the House, which would amend the OSHA Act.

08/03/2010 - OSHA is “Back in the Enforcement Business.” Are You Prepared?
In 2010, current OSHA enforcement statistics confirm this promise and reveal unprecedented levels of enforcement. The agency is also paving the way to bolster its capabilities through new proposed regulations.

07/29/2010 - Litigating Arbitration Agreements: Recent United States Supreme Court Decisions Provide Guidance to Employers Looking to Avoid Court
Despite entering into arbitration agreements with their employees, employers all too often find themselves in court adverse to the very employees who have signed an arbitration agreement. The U.S. Supreme Court recently issued three arbitration decisions that have important implications for employers seeking to avoid the inside of a courtroom.

06/30/2010 - U.S. Supreme Court Upholds Employer Searches and Underscores Importance of Electronic Communications Policies
The United States Supreme Court issued a unanimous decision that provides guidance on steps employers can take to reduce an employee’s privacy expectations and emphasizes the importance of having a clear, well-defined privacy policy.

05/10/2010 - Plan, Prevent, Protect or Pay? What Employers Should Expect From OSHA Under Its New Enforcement Strategies and Semiannual Regulatory Agenda
Rolling out OSHA’s semiannual regulatory agenda on April 26, 2010, Secretary of Labor Hilda Solis unveiled several action items being marketed as the “Plan, Prevent, and Protect” enforcement strategy.

04/22/2010 - Employers Beware: How the Recent Health Care Reform Legislation Affects Employers
On March 21, 2010, the House of Representatives passed the Patient Protection and Affordable Care Act (“PPACA”), which President Obama signed into law on March 23, 2010. The health care reform law will make far-reaching changes to the United States health care system over the next several years. 

10/09/2009 - Recent Case Dismissal Challenges "Geographic Presumption"
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” 

08/12/2009 - FMLA and Equitable Estoppel
Since its passage in 1993, employers have diligently attempted to incorporate the Family and Medical Leave Act's regulatory scheme into the workplace compliance regimen, only to be tripped up on some final and technical requirement that lands them in the courthouse.
Reprinted by permission from Law360.

06/19/2009 - U.S. Supreme Court Increases Employee Burden of Proof in Age Bias Cases
In Gross v. FBL Financial Services, Inc., decided on June 18, 2009, a deeply divided U.S. Supreme Court imposed a heightened proof burden on employees to establish age discrimination against their employers. In a 5-4 decision, the Court concluded that the literal text of the Age Discrimination in Employment Act (“ADEA”) does not allow a worker to prove discrimination by demonstrating that age was one “motivating factor” for the employer's adverse employment action.

05/27/2009 - Texas Lawyer Commentary: Matthew Deffebach and Janet Ayyad Discuss Bill Precluding Gun Bans in Workplaces
As of Dec, 31, 2008, the number of individuals with active licenses to carry a concealed handgun in Texas totaled 314,574, according to the Texas Department of Public Safety's Web site. That does not include the people allowed to carry a rifle or shotgun, for which Texas does not require a license.

Why is 314,574 a significant number? It could also be the number of handguns stored on company parking lots across Texas, if the state Legislature passes the proposed guns-at-work law. With the thorny issues surrounding firearms, supporters and opponents of the proposed law could bill the legislation as one of two extremes, borrowing from modern cinema: "The Peacemaker" or "There Will Be Blood."

05/06/2009 - Restructuring Compensation During Economic Challenges
Employers are facing a number of economic and financial challenges. Some employers have considered restructuring their compensation arrangements with employees as an alternative to avoid a reduction in force or layoffs. Restructuring of compensation packages raises a number of issues. 

05/01/2009 - What’s an Employer to Do? Understanding the Employment Law Implications of Swine Flu
Employers face an array of potential legal issues associated with the influenza A (H1N1) infection, also known as “swine flu.” As of May 1, 2009, 331 cases of swine flu in eleven countries have been reported and 109 of these cases are in the United States. Moreover, the World Health Organization has rated the swine flu as a phase 5 on the influenza pandemic alert level – revealing “a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short.” Health organizations and the government are not the only entities that need to prepare plans. Employers also need to determine how they will deal with the problems associated with a potential influenza outbreak.

04/22/2009 - Texas Supreme Court Provides Greater Protection to Employers Seeking to Enforce Non-Compete Covenants
Building on its 2006 decision in Alex Sheshunoff Management Services, L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006), the Texas Supreme Court has further expanded the enforceability of non-compete covenants in the at-will employment setting. In Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, No. 07-0490 (Tex. April 17, 2009), a decision with significant practical implications for Texas employers, the court held that an employer’s implied promise to provide confidential information to an at-will employee may give rise to an enforceable covenant not to compete.

02/16/2009 - U.S. Supreme Court Protects Workers from Retaliation in Workplace Discrimination Investigations
On January 26, 2009, the United States Supreme Court, in Crawford v. Metropolitan Government of Nashville and Davidson County, Tennessee, concluded that Title VII’s anti-retaliation provision protects an employee-witness who “speaks out” about alleged discrimination “not on the employee’s own initiative,” but in answering questions during the employer’s internal investigation.

02/05/2009 - President Obama Signs Three Executive Orders Concerning Unions
On Friday, January 30, 2009, in a move targeting Bush-era policies that some viewed as unfriendly to organized labor, President Barack Obama signed three executive orders: Notification of Employee Rights Under Federal Labor Laws; Nondisplacement of Qualified Workers Under Service Contracts; and Economy in Government Contracting. Regarding these orders, President Obama commented, “We need to level the playing field for workers and the unions that represent their interests. . .”

01/30/2009 - President Obama Signs Lilly Ledbetter Fair Pay Act
On Thursday, January 29, 2009, in a widely anticipated move, President Barack Obama signed his first bill into law, approving the Lilly Ledbetter Fair Pay Act. This legislation focuses on salary bias in the workplace. Discussed in greater detail below, the Ledbetter bill essentially negates a 2007 United States Supreme Court decision that limited a woman’s ability to sue for pay discrimination long after the first discriminatory paycheck occurred.

01/20/2009 - House Passes Two “Fair Pay” Bills
On January 9, 2009, the United States House of Representatives passed the Lilly Ledbetter Fair Pay Act and the Paycheck Fairness Act. The bills now go to the Senate for consideration, and President Obama is expected to sign both into law should they reach his desk.

11/21/2008 - The ADA’s Rebirth: Complying with the ADA Amendments of 2008
Based on several new amendments to the Americans with Disabilities Act (ADA), the statute has been reborn – it offers vastly expanded coverage to a wide variety of employee physical and mental impairments and will require employers to focus on creating and offering reasonable accommodations to individuals with disabilities. On January 1, 2009, the ADA Amendments Act of 2008 (ADAAA) will become effective and, in large part, it removes an employer’s common defense that the individual’s particular impairment does not constitute a “disability” under the ADA.

07/03/2007 - Significant Developments at OSHA as it Steps Up Compliance Efforts

"Second-Hand" Harassment: Can an Employer Get Burned?

Discipline and Discharge: Avoid 'Nearly Identical Employee' Issue

May 1, 2002: OSHA Begins Penalizing Employers For Improper Recordkeeping

02/01/2002 - Supreme Court Applies OSHA Regulations to Uninspected Vessels