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.
04/24/2013 - U.S. Supreme Court Validates Offers of Judgment as a Defense to FLSA Collective Actions but Leaves More Uncertainty in its Wake
On April 16, 2013, in a 5-4 opinion, the United States Supreme Court decided whether an offer of judgment that fully satisfies the named plaintiff’s individual claim in a Fair Labor Standards Act (“FLSA”) action moots the plaintiff’s collective action claim.
04/02/2013 - HR Magazine Guest Article: Is Your Unpaid Internship Program Lawful?
Recently, employers such as Hearst Corp., "The Charlie Rose Show" and Fox Searchlight Pictures have been named for allegedly violating the Fair Labor Standards Act (FLSA) and state labor laws by failing to pay interns who assumed significant work responsibilities. These cases should serve as a wake-up call to all employers that use unpaid interns.
10/25/2012 - Restaurant Hospitality Guest Article: What the 20 Percent Tip Credit Rule Means
With no clear definition of what constitutes tip-generating work from the Department of Labor (DOL), you could be required to pay tipped employees the federal minimum wage for duties that are not directly aimed at generating tips. Implementing proactive policies will put you in a better position to avoid or reduce this result.
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?
07/07/2011 - Restaurant Trade Groups Challenge Department of Labor’s New “Tip Credit” Rule
In April 2011, the Department of Labor (“DOL”) issued a final rule that could have a significant impact on employers that use a “tip credit” to satisfy their obligation to pay employees minimum wage. Although courts have generally required employers to notify employees of (but not explain) the tip credit, the new rule requires employers to provide very specific and detailed information regarding their use of the tip credit.
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?
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.
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.
01/11/2011 - 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.
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.
06/19/2009 - 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.
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.
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.
11/30/2008 - Hot Branding News Fall 2008
This edition includes articles such as "Courts Honor Contractual Choice of Law and Forum Provisions and Reject Public Policy Invalidation: Curves Litigation", "Disability Law Expansion", "Identity Theft Red Flag Rules", and State and Global Updates.
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
04/08/2005 - United States Supreme Court Approves "Disparate Impact" Age Discrimination Claims
04/27/2004 - Employees May Begin Paying the Price for Challenging Their Non-Competes