In the News

Dean Schaner in PlanSponsor: Presumption of Prudence Decision Not a Total Win for Anyone

The U.S. Supreme Court this week ruled employee stock ownership plan (ESOP) fiduciaries are not entitled to a presumption of prudence for keeping company stock in the plans, but it didn’t just leave it at that. >>

Dean Schaner in Bloomberg BNA Pension & Benefits Daily: High Court Kills Presumption of Prudence, Gives Some Hope to ESOP Fiduciaries

In a partial win for employees who invest in company stock, a unanimous U.S. Supreme Court ruled that fiduciaries of employee stock ownership plans aren't entitled to a presumption of prudence protecting them from liability for declining share price (Fifth Third Bancorp v. Dudenhoeffer, 2014 BL 175777, U.S., No. 12-751, 6/25/14). >>

Dean Schaner in HR Magazine: High Court Rules No Presumption of Prudence for ESOP Fiduciaries

Contrary to lower court rulings, the U.S. Supreme Court on June 25, 2014, decided that fiduciaries for employee stock ownership plans (ESOPs) do not have a presumption of prudence. This presumption had required plaintiffs to make a showing not required in an ordinary duty-of-prudence case, such as that the employer was on the brink of collapse. >>



Recent Publications

Proper Conditional Certification Standard Still Uncertain Despite Fifth Circuit’s Implicit Approval of Two-Step Approach

Based on a review of recent district court cases, uncertainty remains regarding the proper standard for certifying a Fair Labor Standards Act (“FLSA”) collective action in the Fifth Circuit Court of Appeals. >>

Update: OFCCP’s New Rules Become Effective March 24, 2014

As expected, the OFCCP published its new rules regarding veterans and disabled individuals in the Federal Register on September 24, 2013. >>

OFCCP’s Updated Compliance Manual and New Rules Signal Increased Burdens for Federal Contractors

On August 23, 2013, the OFCCP released an updated version of its Federal Contractor Compliance Manual (“FCCM”). Just four days later, on August 27, 2013, the OFCCP issued the highly-anticipated final rules concerning Section 503 of the Rehabilitation Act (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”). >>

The Demise of DOMA’s Core: Employer Response Avenues in the Wake of Windsor

On June 26, 2013, in a 5-4 decision, the United States Supreme Court issued a much anticipated ruling in United States v. Windsor, holding that Section 3 of the federal Defense of Marriage Act (“DOMA”) is unconstitutional on federalism and equal protection grounds. >>



Dean J. Schaner

Partner

Houston


1221 McKinney Street
Suite 2100
Houston, 77010
T +1 713.547.2044
F +1 713.236.5571

Áreas de Practica

Educación

  • J.D., Creighton University School of Law, 1987, with honors; Student Articles Editor, Creighton Law Review
  • B.A., Texas Tech University, 1984, with honors

Bar Admissions

  • Texas
  • Nebraska

Court Admissions

  • 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
  • U.S. District Court for the Southern District of Texas
  • U.S. Court of Appeals for the Fifth Circuit
  • U.S. Court of Appeals for the Eighth Circuit
  • U.S. Court of Appeals for the Ninth Circuit
  • United States Supreme Court
Dean J. Schaner

Dean Schaner, founder of the Houston Labor and Employment Practice Group, has exclusively practiced employment and labor litigation for more than 26 years, representing employers in all aspects of unfair competition, discrimination, retaliation, whistleblower, ERISA, wrongful termination, and tort/contract claims arising out of the employment relationship. After moving from Dallas to the Houston office in 1995, Mr. Schaner built the Houston labor and employment practice group. Mr. Schaner has tried a wide variety of cases in the federal and state courts, including the successful defense of an energy company in a class action case in which plaintiffs sought $30 million in damages. He is certified by the Texas Board of Legal Specialization as a labor and employment law specialist. Mr. Schaner is the Editor-in-Chief of the Texas Employment Law Desk Reference, 5th Edition. Additionally, as a member of the Social Media Practice Group, Mr. Schaner advises clients on matters regarding social media and the risks and implications it may have in the labor and employment arena.

Selected Client Representations

Mr. Schaner has successfully tried cases for employers in both Federal and Texas courts, including:

  • Defended national class action misclassification FLSA case involving officers of a mortgage company and financial institution; case successfully settled on favorable terms for the client.
  • Obtained numerous temporary restraining orders and injunctions for clients in non-competition agreement, unfair competition, trade secret, Computer Fraud Abuse Act, and inevitable disclosure cases. 
  • Obtained a defense jury verdict for an oil and gas employer in a Texas state court, class action case in which the class plaintiffs sought $10 million in actual damages and $20 million in punitive damages. A Texas appeals court affirmed the defense verdict. 
  • Defended class action employment discrimination and employee benefits lawsuits by preventing class certification and obtaining summary judgment on the merits. Several of the class actions sought nationwide class certification for thousands of putative plaintiffs. 
  • Obtained jury verdicts for banking institutions, energy companies, and other employers on the merits of employee discrimination/wrongful discharge claims. 
  • Convinced a Texas appeals court to adopt the after-acquired evidence doctrine, namely, the discovery of post-discharge employee misconduct to bar an employee's wrongful discharge claim. Jordan v. Johnson Controls, Inc., 881 S.W.2d 363 (Tex. App.--Dallas 1994). 
  • Convinced a Texas appeals court to reject plaintiff's request to adopt the "cats-paw" doctrine in a workers' compensation retaliation lawsuit under Texas law. Costello v. Bank of America, N.A., 2007 WL 4303499 (Tex. App.--Houston [14th Dist.] 2007). 
  • Convinced a Texas district judge to compel a plaintiff-former employee asserting whistleblower and slander claims to return numerous documents plaintiff downloaded without employer authorization to support plaintiff's claims. Plaintiff later dismissed his lawsuit with prejudice.

Published Cases

Obtained summary judgment and judgment as a matter of law victories in numerous published cases, including:

  • Young v. Merrill Lynch & Co., 658 F.3d 436 (5th Cir. 2011)
  • Simmons v. Wilcox, 911 F.2d 1077 (5th Cir. 1990) (adopting exhaustion of administrative remedies requirement in ERISA fiduciary breach/benefits claims lawsuit).
  • Khavari v. Varo, Inc., No. 05-92-01733-CV, 1993 WL 84788 (Tex. App.-Dallas 1993) (affirming summary judgment in contract breach and tort claims arising out of employment termination).
  • Geiger v. Varo, Inc., No. 05-93-1511-CV, 1994 WL 246159 (Tex. App.-Dallas 1994) (affirming summary judgment on multiple count sexual harassment and assault lawsuit).
  • Nowlin v. Resolution Trust Corp., et al., 33 F.3d 498 (5th Cir. 1994) (affirming summary judgment for Haynes and Boone client, Mitchell Jobe, on scope of EEOC charge argument).
  • Ellis v. NCNB Texas National Bank, 842 F. Supp. 243 (N.D. Tex. 1994) (granting summary judgment for financial institution in one of first whistleblower cases filed under the Financial Institutions Reform Recovery and Enforcement Act in which the plaintiff sought $6 million in damages; case was reported in the Big Suits section of the American Lawyer).
  • Simien v. Chemical Waste Management, Inc., 30 F. Supp. 2d 939 (W.D.La. 1998), aff’d, 174 F.3d 199 (5th Cir. 1999) (affirming summary judgment in race discrimination lawsuit).
  • Blanks and Breedlove v. Waste Management of Arkansas, Inc., 31 F. Supp. 2d 673 (W.D. Ark. 1998) (affirming summary judgment in nationwide class action case).
  • Amos v. Wheelabrator Coal Services Co., 47 F. Supp. 2d 798 (N.D. Tex. 1999) (granting judgment as a matter of law in ADA lawsuit).
  • Green v. Industrial Specialty Contractors, 1 S.W.3d 126 (Tex. App.-Houston [1st Dist.] Mar. 25, 1999) (affirming summary judgment in sex harassment case involving six alleged harassment incidents).
  • Krug v. Caltex Petroleum Corporation, No. 05-96-0079-CV, 1999 WL 652495 (Tex. App.-Dallas 1999) (affirming jury verdict for the defense in fraud/contract class action lawsuit).
  • Patitu v. NationsBank, N.A., 90 F. Supp.2d 781 (S.D. Tex. 2000) (granting summary judgment in national origin discrimination case).
  • Tiemeyer v. Quality Publishing, Inc., 144 F. Supp. 2d 727 (S.D. Tex. 2001) (granting summary judgment in age discrimination case).
  • Burgos v. Tex. Trude, et al., 286 F. Supp. 2d 812 (S.D. Tex. 2003) (granting motion to dismiss on ERISA preemption grounds).
  • Bodine v. Employers Casualty Co., et al., 352 F.3d 245 (5th Cir. 2003) (affirming dismissal of ERISA lawsuit under anti-cutback and prohibited transaction ERISA provisions).
  • Bourgeois v. The Pension Plan for the Employees of Santa Fe Int'l Corps., 308 F. Supp. 2d 761 (S.D. Tex. 2004) (granting summary judgment on pension benefits claim).
  • Costello v. Bank of America, N.A., 2007 WL 4303499 (Tex. App.-Houston [14th Dist.] 2007) (affirming summary judgment on workers' compensation retaliation claim and rejecting "cat's paw" doctrine under Texas statute).
  • St. John v. NCI Bldg. Systems, Inc., 537 F. Supp. 2d 848 (S.D. Tex. 2008) (granting summary judgment on plaintiff's ADA discrimination and retaliation claims).
  • Mensa-Wilmot v. Smith International, Inc., 312 SW.3d 771, 2009 Tex. App. LEXIS 8944 (Tex. App. – [1st Dist.] Nov. 19, 2009) (affirming summary judgment for employer on plaintiff’s non-qualified stock option claims under stock option agreements).
  • Young v. Merrill Lynch & Co., 658 F.3d. 436 (5th Cir. 2011) (holding that employer did not act arbitrarily, under New York law, in refusing to pay value of unexercised stock options to former executive because the executive's resignation was not a resignation for good reason after a change in control).
  • Successfully argued over 20 cases before the Texas Courts of Appeal, and the United States Court of Appeals for the Fifth, Eighth and Ninth Circuits. 

Publications

  • "Common Pitfalls in Preserving the Attorney-Client Privilege and Work-Product Protection Facing Labor, Employment, and Employee Benefits Attorneys," New York University Review of Employee Benefits and Executive Compensation - 2013 (October 2013).
  • Employment Law Survey 2011-2012, 45 Tex. Tech L. Rev. 727 (Spring 2013).
  • "Everyday Attorney-Client Privilege and Work Product Ethics for Labor, Employment and Employee Benefits Attorneys," BNA Pension & Benefits Daily (June 28, 2013).
  • "Relying on Employer-Favorable Case Law Outcomes to Help Defend Against Employment Class and Collective Actions," chapter in Inside the Minds publication, Strategies for Employment Class and Collective Actions: Leading Lawyers on Addressing Trends in Wage and Hour Allegations and Defending Employers in Class Action Litigation, Aspatore Books, (2012).
  • Focus on the Workplace: "Noncompete Agreements in the Employment Context," Employee Benefit Plan Review, Vol. 66, No. 5 (November 2011).
  • Editor-in-Chief, Texas Employment Law Desk Reference (5th Ed., 2011).
  • FLSA Travel Issues: "I Would Walk 500 Miles But Would I Get Paid for it?" Law 360 (July 19, 2011).
  • "Beware of the Claw: Implementing Mandatory Clawback Provisions in Executive Employment Agreements After Dodd-Frank," Wolters Kluwer [Corporation Section 2, Vol. LXXXII, No. 14] (July 15, 2011).
  • "The EEOC Issues Final Regulations Implementing the ADAAA," Associated Security Services and Investigators Magazine (June 2011).
  • "FLSA: Death Star Workers Were Independent Contractors," Employee Benefit Plan Review (May 2011).
  •  "Electronic Communications Policies Post Quon," Law 360 (July 21, 2010).
  • "The Supreme Court Rejects Special Treatment for Title VII Pay Discrimination Claims," Growth Magazine (May 2007).
  • "Moving Forward: The Enforceability of Non-Compete Agreements Following the Texas Supreme Court’s Decision in Alex Sheshunoff," Growth Magazine (May 2007).
  • "Court Rulings Say the Workplace is not the Place for Proselytizing," Houston Business Journal (October 2006).
  • "When Faith and Work Collide: Addressing Religious Harassment in the Workplace," Growth Magazine (September 2006).
  • "Don’t Give it all Away: Employee Confidentiality and Non-Competition Agreements," Growth Magazine (November 2005).
  • "Employers Must Ponder Dangers of 'Second-Hand' Harassment," Houston Business Journal (October 2005).
  • "Tips for Managers and Owners to Control and Regulate Access to Property," Schaner, Wilson, and Carter, Houston Chapter of the Institute of Real Estate Management (March 2005) (Vol. 27 No. 3).
  • "Employment Law Post-Enron: Sarbanes-Oxley," Texas Bar Journal, (January 2002).
  • "Courts 'Mixed Motive' Decision Affects Job Discrimination Cases," Houston Business Journal (August 29-September 4, 2003).
  • "U.S. Supreme Court Takes Action on Mandatory Arbitration Issues," Houston Business Journal (June 29-July 5, 2001).
  • "How to Protect your Company's Trade Secrets with Employee Confidentiality and Non-Competition Agreements," Houston Business Journal (May 18, 2001).
  • "Court Developments and Circuit Court Survey," Alternative Dispute Resolution in Employment Journal (CCH July 2000).
  • "Recent OSHA Developments of Interest to Energy Law Practitioners," Dean J. Schaner and Matthew Deffebach, Oil, Gas, and Energy Resources Law Journal for the State Bar of Texas (Vol. 27, No. 1 (September 2002).
  • "Employment Law Commentary for the Houston Business Journal's Business Survival Guide" (2001-2005).
  • "Closing Your Doors on a Sixty-Day Hinge: Complying with the Worker Adjustment and Retraining Notification Act," Texas Bar Journal, June 1992.
  • "Workplace Romance: Should Employers Act as Chaperones?" 20 Employee Relations Law Journal 47 (Summer 1994).
  • "When Faith and Work Collide: Defining Standards for Religious Harassment in the Workplace," 21 Employee Relations Law Journal (Summer 1995).
  • "Have Gun Will Carry: Concealed Handgun Laws, Workplace Violence and Employer Liability," 22 Employee Relations Law Journal (Summer 1996).

Activities and Honors

  • Recognized by Chambers USA 2014 in Labor & Employment (Texas).
  • Member of the Exam Committee for the Texas Board of Legal Specialization Labor and Employment Law Exam Commission, 2005-2014. 
  • Exam Coordinator for the Texas Board of Legal Specialization, Labor and Employment Specialization Exam Committee, 2008-2014. 
  • Chair of the Texas Labor and Employment Exam Committee, 2013-2014.
  • Member, Board of Directors, Houston West Chamber of Commerce.
  • Included in The Best Lawyers in America® 2012-2014 for Employment Law - Management.
  • Named as a Texas Super Lawyer in Texas Monthly Magazine in Employment Litigation Defense from 2003-2013. 
  • Martindale Hubbell® Law Directory with a Peer Review Rating of AV® Preeminent™.
  • ALM and Martindale Hubbell® recognition of 2013 Top Rated Lawyer in Labor & Employment Law.

Selected Representative Experience


Settlement of a Trade Secrets Misappropriation Lawsuit
Secured a favorable settlement of a trade secrets misappropriation lawsuit in federal district court in North Carolina. Haynes and Boone represented the plaintiff, a technology company headquartered in Houston. On the third day of the jury trial, the defendants, a former plaintiff executive and his new company, announced their consent to an agreed permanent injunction and agreed to dismiss all of their counterclaims, pay all of plaintiff’s damages, surrender their inventory, and pay a portion of plaintiff’s attorney’s fees. The case involved the misappropriation of the formula for a proprietary catalyst used to treat hydrocarbons at refineries worldwide. The former executive claimed to have independently developed the formula after leaving the company, but shortly before trial began the formula was discovered in a spreadsheet that proved defendants’ claim was untrue.

Advice to Non-Profit - ADA
Advised a major social service non-profit organization on handling ADA (Americans with Disabilities Act) requests.

Recapitalization - Medical Benefits Claims Company
Represented CIC Partners, LP, when it partnered with the founder of the market leader in processing medical benefit claims to recapitalize the company.

Trial of Class Action Seeking $30 million in Damages Against International Oil Company
Represented a large international oil company in jury trial in Dallas state district court where plaintiffs asserted a class action composed of numerous former employees who had been terminated in a workforce restructuring. The plaintiff class was seeking additional severance pay benefits under the employer's separation pay plan, plus punitive damages and basing their claims on allegations of fraud and breach of contract. The case also involved very sensitive issues relating to attorney-client privilege and claims of alleged waiver of same; however, rulings were secured from the trial court in the employer's favor. After a one-week trial, the jury returned a unanimous verdict for the employer on all counts and gave the plaintiffs no damages. The verdict was appealed and the judgment for our client was upheld.

Memberships

  • State Bar of Texas
  • State Bar of Nebraska
  • Fifth Circuit Bar Association
  • Texas Association of Business

Online Publications

01/13/2014 - Proper Conditional Certification Standard Still Uncertain Despite Fifth Circuit’s Implicit Approval of Two-Step Approach
Based on a review of recent district court cases, uncertainty remains regarding the proper standard for certifying a Fair Labor Standards Act (“FLSA”) collective action in the Fifth Circuit Court of Appeals.

09/25/2013 - Update: OFCCP’s New Rules Become Effective March 24, 2014
As expected, the OFCCP published its new rules regarding veterans and disabled individuals in the Federal Register on September 24, 2013.

09/17/2013 - OFCCP’s Updated Compliance Manual and New Rules Signal Increased Burdens for Federal Contractors
On August 23, 2013, the OFCCP released an updated version of its Federal Contractor Compliance Manual (“FCCM”). Just four days later, on August 27, 2013, the OFCCP issued the highly-anticipated final rules concerning Section 503 of the Rehabilitation Act (“Section 503”) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (“VEVRAA”).

09/03/2013 - The Demise of DOMA’s Core: Employer Response Avenues in the Wake of Windsor
On June 26, 2013, in a 5-4 decision, the United States Supreme Court issued a much anticipated ruling in United States v. Windsor, holding that Section 3 of the federal Defense of Marriage Act (“DOMA”) is unconstitutional on federalism and equal protection grounds.

08/08/2013 - Texas Tech Law Review Guest Article: Employment Law
This article analyzes recent Fifth Circuit Court of Appeals’ labor and employment law opinions from July 1, 2011, through June 30, 2012. During this period, the appeals court addressed, in large part, a host of discrimination, sexual harassment, and retaliation claims under Title VII of the 1964 Civil Rights Act.

07/22/2013 - Bloomberg Law Guest Article: Everyday Attorney-Client Privilege and Work-Product Ethics for Labor, Employment, and Employee Benefits Attorneys
This article reviews recent developments that attorneys practicing in the labor, employment, and employee benefits areas must address to effectively advise and represent their clients and to facilitate their clients’ ability to claim that certain attorney-client communications are protected by the attorney-client privilege and work-product doctrine.

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.

06/25/2013 - New Texas Law Limits Liability for Employers Hiring Applicants with Criminal Backgrounds
Many employers are wary of hiring applicants with criminal records because they fear exposing themselves to potential negligent hiring or negligent supervision claims, but they also have concerns imposed by the EEOC’s aggressive interpretation of Title VII that a blanket rule against hiring persons with criminal convictions is a violation of the law.

12/12/2012 - Relying on Employer-Favorable Case Law Outcomes to Help Defend Against Employment Class and Collective Actions
A chapter in the Inside the Minds publication called Strategies for Employment Class and Collective Actions: Leading Lawyers on Addressing Trends in Wage and Hour Allegations and Defending Employers in Class Action Litigation.

05/18/2012 - Part 3
Marking the beginning of May 2012,several labor organizations and other groups engaged in mass demonstrations across the U.S. These demonstrations are focused in large part on social justice issues, such as youth unemployment and alleged substandard wages for workers in the “99 percent."

And, of course, some of the protestors engage in a host of activities ranging from peaceful handbilling to trespassing on private property.



05/04/2012 - Law360 Guest Article: Property Owners Lose When 'Occupiers' Win
Marking the beginning of May 2012, several labor organizations and other groups engaged in mass demonstrations across the U.S. These demonstrations are focused in large part on social justice issues, such as youth unemployment and alleged substandard Wages for workers in the "99 percent."

11/29/2011 - Employee Benefit Plan Review Guest Article: Noncompete Agreements in the Employment Context
Here we go again! For the third time in less than six years, the Texas Supreme Court has repudiated technical legal niceties and has adopted broad proemployer principles to support the enforcement of noncompetition agreements in Texas.

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.

08/15/2011 - Emerging from the Marsh: The Texas Supreme Court Clarifies and Solidifies the Enforcement of Non-Compete Agreements in the Employment Context
Here we go again! For the third time in less than six years, the Texas Supreme Court has repudiated technical legal niceties and has adopted broad pro-employer principles to support the enforcement of non-competition agreements in Texas. Marsh USA, Inc. v. Cook, 54 Tex. Sup. Ct. J. 1234 (Tex. 2011).

07/28/2011 - There Is Hope After All: Fifth Circuit Holds that Employers May Still Prevail on FLSA Retaliation Claims
A June ruling by the Fifth Circuit Court of Appeals has provided a bit of a relief for employers who face Fair Labor Standards Act retaliation claims from employees. The Supreme Court's ruling in Kasten v. Saint-Gobain Performance Plastics Corp., 131 S.Ct. 1325, 1329, 179 L. Ed. 2d 379 (2011) represented a significant victory for employees, but now all is not lost for employers.

07/19/2011 - Law360 Guest Column: I Would Walk 500 Miles...But Would I Get Paid For It?
Are employers required to pay for travel time if employees drive company vehicles to and from work? What if they perform work-related tasks before leaving or after arriving home?

06/29/2011 - I Would Walk 500 Miles…But Would I Get Paid for it? Fifth Circuit Delivers Important Travel Time Decision
Are employers required to pay for travel time if employees drive company-vehicles to and from work?  What if they perform work-related tasks before leaving or after arriving home?

06/23/2011 - Beware of the Claw: Implementing Mandatory Clawback Provisions in Executive Employment Agreements Under the Dodd-Frank Act
The Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) was signed into law by President Obama on July 21, 2010. In the middle of the Act’s 800-plus pages is a short provision that packs a lot of punch for Executive Employment Agreements and Policies: Section 954, entitled “Recovery of Erroneously Awarded Compensation.”

06/21/2011 - U.S. Supreme Court Blocks Massive Nationwide Employment Discrimination Class Action Against Wal-Mart
On June 20, 2011, the Supreme Court issued its opinion in Wal-Mart Stores, Inc. v. Dukes, reversing a Court of Appeals decision that had affirmed certification of a nationwide class of 1.5 million female employees in a gender discrimination suit against Wal-Mart.

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.

04/14/2011 - The EEOC Issues Final Regulations Implementing the ADAAA
On September 25, 2008, former President George W. Bush signed the ADA Amendments Act of 2008 (the “ADAAA” or the “Act”) into law, broadening the definition of “disability” under the Americans with Disability Act (“ADA”).

03/24/2011 - Flights of Fancy: The Supreme Court Delineates What Complaints the FLSA Protects
According to an old Russian Proverb, “A spoken word is not a sparrow. Once it flies out, you can’t catch it.” Applying this to the employment context, if an employee verbally complains that his employer is violating the FLSA, is the employee protected from retaliation? Deciding a split among the circuit courts, the Supreme Court answered the question affirmatively, eliminating the need for a net: the FLSA protects employees who file oral complaints.

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.

02/15/2011 - Supreme Court Again Expands Retaliation Protection
Consistent with its retaliation decisions over the past five years, the United States Supreme Court has revisited and expanded the scope of protection from retaliation under Title VII. In an 8-0 decision issued January 24, 2011, the high court expanded the scope of Title VII’s anti-retaliation provision by concluding that in certain situations, the statute allows an employee who has not personally engaged in protected activity to lodge a retaliation claim under the statute.

02/09/2011 - NLRB Roundup: More Frequent and Significant Action from Obama Appointees
The Obama National Labor Relations Board (“NLRB”) has started to make its mark on the labor laws through a series of changes that collectively may have a significant impact on the labor law environment.

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.

01/13/2011 - Employment Law Desk Reference Fifth Edition
Employment Law Desk Reference Fifth Edition Now Available from Haynes and Boone, LLP

01/11/2011 - The DNA of GINA: The EEOC Issues Final Regulations Effective January 10, 2011
On November 9, 2010, the Equal Employment Opportunity Commission (“EEOC”) issued its much-anticipated final rule implementing Title II of the Genetic Information Nondiscrimination Act (“GINA”), which applies to all employers covered by Title VII of the Civil Rights Act of 1964 (“Title VII”), namely, employers with fifteen or more employees, as well as unions, employment agencies and labor management training programs.

11/19/2010 - Employers' Eye on the Court: The U.S. Supreme Court Will Decide a Host of Employment-Related Cases During its Current Term
The U.S. Supreme Court began its new 2010-2011 term on October 4, 2010 with a number of employment-related cases on the docket, many of which have already been orally argued, that could potentially impact employers concerning such matters as arbitration, retaliation, immigration, and employee benefits.

10/28/2010 - Change is on the Way from the NLRB
The Obama-appointed NLRB has now issued its first significant batch of decisions serving notice, as is typical in the transition from one administration to the next, of a shift in the interpretation of the labor laws. The decisions include a new standard regarding secondary boycotts and union bannering; potential reconsideration of prior precedent; and a differing application of the law to facts than the predecessor NLRB.

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”).

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.

06/09/2010 - Federal Government Implements Pro-Union Notice Requirement for Government Contractors
Government contractors and subcontractors now have a new, unsavory obligation. On January 30, 2009, President Obama signed Executive Order 13496 – which requires government contractors and subcontractors to post a notice informing employees of their right to engage in concerted, collective activity.

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. 

03/30/2010 - Time for Recess: Becker, Pearce Appointed to NLRB
The National Labor Relations Board (“NLRB”) is finally moving towards its full complement of five members. On March 27, 2010, President Barack Obama made two recess appointments (a procedure not requiring legislative approval), increasing the NLRB’s membership from the two that have been serving the past couple of years to four members. The appointments still leave the NLRB one member short; however, three members constitute a quorum that can unquestionably decide cases before the Board.

11/09/2009 - Can We Have That in Writing? Clear Reservation-of-Rights Saves Company from ERISA Class Action Over Change in Retiree Benefits
Can an employer modify or terminate the medical benefits of retired employees? The answer depends on the language in the employer’s medical benefit plan. A recent federal court ruling highlights the importance of medical benefit plans unambiguously reserving the right to modify or terminate plan benefits. Without this language, an employer makes itself vulnerable to “he said/she said” disputes in which retirees claim that their former managers promised the retirees that their medical benefits would remain unchanged through retirement.

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.” 

07/31/2009 - Employers Beware: Unions Win Battle in War Over E-Mail Use
With the advent of information technology, union supporters have frequently used employer e-mail systems to solicit support during union organizing campaigns. Recognizing the difficulty in monitoring these activities, the National Labor Relations Board (NLRB), in Register-Guard, concluded that employees have no statutory right to use an employer’s e-mail system for union-related activities.

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.

05/06/2009 - 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.

04/09/2009 - Weathering the Storm: Terminations, Uncertainty, and Strategies to Reduce Workplace Liability
In the current economic state, many employers are seeking to reduce operating costs. More employees are being let go as corporate layoffs have accelerated and workers are looking to complain that they have been unfairly or improperly dismissed. The Obama administration has publicly announced that it will be more aggressive in enforcing employment laws.

04/03/2009 - Supreme Court Holds That Employees Under Collective Bargaining Agreement Are Blocked From Going to Court On Age Discrimination Claims, Must Arbitrate Instead
In 14 Penn Plaza LLC v. Pyett, a decision with significant practical ramifications for unionized employers, the United States Supreme Court, on April 1, 2009, held that employees covered under a collective bargaining agreement were required to arbitrate claims of age discrimination under the arbitration clause of that agreement instead of allowing them to sue in Court.

03/04/2009 - President Obama Signs Fourth Executive Order Concerning Unions
On February 6, 2009, President Barack Obama signed his fourth executive order concerning federal contractors and labor matters. This order (the “Order”) encourages federal agencies contracting with private businesses for large-scale construction projects to mandate project labor agreements (“PLA”) for the entirety of the project. 

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.

01/11/2008 - Employer Email No-Solicitation Policies
It is well-established that employees have the right, under the mutual aid and protection clause in Section 7 of the National Labor Relations Act (“NLRA”), to solicit coworkers on non-working time and to distribute literature to coworkers in non-work areas.

05/05/2006 - Possible NLRA Implications - Part II

04/26/2006 - Possible NLRA Implications - Part I

Haynes and Boone Employment Law Desk Reference

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

04/08/2005 - United States Supreme Court Approves "Disparate Impact" Age Discrimination Claims

03/01/2005 - Tips for Managers and Owners To Control and Regulate Access to Property

04/27/2004 - Employees May Begin Paying the Price for Challenging Their Non-Competes

Court's 'mixed motive' decision affects job discrimination cases

03/24/2003 - Update on Employment Related Legislation in 78th Texas Legislature

01/29/2003 - They Are Back! What The 78th Legislature Has In Store For Texas Employers

08/22/2002 - 7 - Employment Obligations - How The Corporate Accountability Law Will Impact Employment Practices

07/26/2002 - Employment Obligations -- How the New Corporate Accountability Law Will Impact Employment Practices

05/30/2002 - Texas Supreme Court Upholds Mandatory Arbitration

05/01/2002 - Reasonable Accommodation Under ADA Does Not Require an Exception to an Employer's Seniority System

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

Equal Employment Opportunity Commission v. Waffle House

01/03/2002 - The Top Five Employment Law Issues Employers Face in the Post 9-11 Era

U.S. Supreme Court takes action on mandatory arbitration issues

Employment Law Commentary for the Houston Business Journal's "Business Survival Guide"

04/01/2001 - U.S. Supreme Court Upholds Mandatory Arbitration In Employment Cases

OSHA Ergonomics Rule Repealed