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EMPLOYMENT LAW

EMPLOYMENT LAW. Mark A. Shank Gruber Hurst Johansen Hail & Shank, L.L.P. 1445 Ross Avenue Dallas, Texas 75202 214-855-6800. Gruber | Hurst | Johansen | Hail | Shank. The laws:. 1. Title VII. 2. Equal Pay Act. 3. Age Discrimination in Employment Act.

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EMPLOYMENT LAW

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  1. EMPLOYMENT LAW Mark A. Shank Gruber Hurst Johansen Hail & Shank, L.L.P. 1445 Ross Avenue Dallas, Texas 75202 214-855-6800 Gruber|Hurst|Johansen|Hail|Shank

  2. The laws: 1. Title VII. 2. Equal Pay Act. 3. Age Discrimination in Employment Act. 4. Americans with Disabilities Act. 5. Texas Commission on Human Rights Act. 6. Family and Medical Leave Act (over 50 employees). 7. Pregnancy Discrimination Act. Gruber|Hurst|Johansen|Hail|Shank

  3. The laws (cont.): 8. National Labor Relations Act. 9. Fair Labor Standards Act. 10. Equal Pay Act. 11. Workers’ Compensation Retaliation. 12. Fair Credit Reporting Act. 13. Local Laws and Ordinances. Gruber|Hurst|Johansen|Hail|Shank

  4. 1. Race 2. Color 3. Gender 4. Age (40 or over) 5. National origin 6. Sexual orientation 7. Citizenship 8. Union status 9. Veteran / military status 10. Religion 11. Pregnancy 12. Disability 13. Genetic information 14. Marital status 15. Workers' comp history Protected categories: Gruber|Hurst|Johansen|Hail|Shank

  5. 1. Recruiting 2. Hiring 3. Training 4. Promotion 5. Discipline 6. Compensation 7. Discharge 8. Work environment 9. References Personnel actions covered: Gruber|Hurst|Johansen|Hail|Shank

  6. What is discrimination? 1. Prima facie case, typically an employee in a protected group is treated less favorably than employees outside that group based on his or her membership in that protected group. 2. Employers must have “legitimate, non- discriminatory reasons” for their decisions. 3. Stated reason is pretext for discrimination. Gruber|Hurst|Johansen|Hail|Shank

  7. What is Harassment? HARASSMENT…. is any unwelcome verbal or physical conduct. Gruber|Hurst|Johansen|Hail|Shank

  8. Liability for hostile work environment by supervisor 1. Tangible employment action - Strict liability. 2. No tangible employment action - Can avoid liability if: a. Employer exercised reasonable care to prevent and correct behavior. b. Employee unreasonably failed to take advantage of the protective or corrective opportunities offered by the employer. Gruber|Hurst|Johansen|Hail|Shank

  9. Liability for hostile work environment by co-workers 1. Employer is liable if it knew or should have known about the harassment and failed to take prompt remedial action. 2. If you know or you had enough facts that you should have known, the “employer” knows. Gruber|Hurst|Johansen|Hail|Shank

  10. RETALIATION PROTECTED ACTIVITY Opposition Participation Gruber|Hurst|Johansen|Hail|Shank

  11. ADAAA, Effective 1/1/2009 1. ADA is Broad & Inclusive. 2. “Disability” Construed in Favor of Coverage. 3. No Consideration of Mitigation Measures. 4. Specific Major Life Activities. 5. No Longer “Regarded As” Disabled. 6. Not Retroactive. Kemp v. Holder, 610 F.3d 231, (5th Cir. 2010) Gruber|Hurst|Johansen|Hail|Shank

  12. LILLY LEDBETTER FAIR PAY ACT OF 2007 1. Lilly M.Ledbetter v. The Goodyear Tire & Rubber Co., Inc. 127 S. Ct. 2162, 167 L. Ed.2d 982 (2007) Time-barred because Discriminatory Decisions Happened Outside Limitations Period 2. Act: Each Paycheck Restarts Limitations Gruber|Hurst|Johansen|Hail|Shank

  13. Prairie View A & M University of Chatha317 S.W.3d 402, Houston [1st Dist.] 2010 1. Lilly Ledbetter Fair Pay Act: Each payment affected by past discrimination is a new act of discrimination. 2. Texas legislature neglects to amend Chapter 21 to reflect LLFPA. 3. Question as to whether Chatha’s suit against Prairie View A&M missed the 180 day deadline or if last paycheck started the clock. 4. Court holds LLFPA applies to Chapter 21, applies no controlling significance to Legislature’s failure to amend. Gruber|Hurst|Johansen|Hail|Shank

  14. Stolt-Nielsen v. AnimalFeeds130 S.Ct. 1758 (2010) 1. Department of Justice uncovers Antitrust violations by Stolt-Nielsen; AnimalFeeds files class action suit. 2. Contract between AnimalFeeds and Stolt-Nielsen has arbitration clause but silent on class arbitration. 3. AnimalFeeds compels class arbitration, panel determines clause permits class arbitration and awards damages. 4. Second Circuit vacates award. 5. Supreme Court holds “arbitration is a matter of consent not coercion;” simple arbitration agreements do not authorize complex class actions. Gruber|Hurst|Johansen|Hail|Shank

  15. Gross v. FBL Financial Services, Inc.129 S. Ct. 2343; 174 L. Ed.2d 119 1. Age Must Be Proven Under “But-For” Standard. 2. Mixed Motive Claims Not Permitted. Gruber|Hurst|Johansen|Hail|Shank

  16. Supreme Court Hears Wal-Mart Case(argued March 29, 2011) 1. Gender Discrimination – Millions of Employees. 2. All Women Since 1998 – Too Broad a Class? Gruber|Hurst|Johansen|Hail|Shank

  17. ADA/FMLA Most common claims: 1. Failure to accommodate an existing employee. a. Schedule changes b. Time off c. Job Duties. 2. Failure to hire. Gruber|Hurst|Johansen|Hail|Shank

  18. FMLA Regulations • 1. Administrative Interpretations . • 2. Definition of “son or daughter.” • 2. In Loco Parentis—No blood or legal relation required. 29 C.F.R.§ 825.122(c)(3).

  19. Garza v. Mary Kay, Inc.2010 U.S. Dist. LEXIS 84572 1. Employee of 18 years took FMLA leave. 2. Unfavorable review concerning her attendance. 3. 60% of job duties had been reduced or changed. 4. Discouraged from applying for another position by supervisor. 5. Constructive Discharge a Jury Issue. Gruber|Hurst|Johansen|Hail|Shank

  20. Nassar v. UT Southwest Med. Center2010 U.S. Dist. LEXIS 97772 1. Dr. won discrimination case based on his race/national origin/religion. 2. Court declined to adjust lodestar up or down pursuant to Perdue v. Kenny A. 3. Novelty and difficulty of the issues were “fully reflected in the number of billable hours recorded by counsel.” 4. Court approves $750 per hour rate for lead counsel. 5. Awarded $500,000+ in attorney’s fees and costs. Gruber|Hurst|Johansen|Hail|Shank

  21. Waffle House v. Williams 313 S.W.3d 796 (Tex. 2010) 1. Williams, waitress at Waffle House, allegedly subjected to offensive sexual comments and contact by one of the cooks. 2. Williams complained. Waffle House did not take remedial action. 3. Williams sued for sexual harassment and assault and battery. 4. Jury awarded $500,000 in compensatory damages and $3.46 million in punitives. Williams elected to recover on her common law claims. 5. Supreme Court holds that Williams’ exclusive remedy is TCHRA: tort is superseded if gravamen of claim is employment discrimination. Gruber|Hurst|Johansen|Hail|Shank

  22. Vanegas v. American Energy Services 302 S.W.3d 299 (Tex. 2009) 1. Promise to pay bonus to employees if company sold/merged. 2. Illusory but became enforceable by time of breach. 3. Enforceable contract where employees remained employed for the requested period of time despite their at-will status. Gruber|Hurst|Johansen|Hail|Shank

  23. Central Texas OP v. EspinozaTex. App. LEXIS 9355 (2009) 1. Employer sues employee for breach of fiduciary duty after he does work for competitor. 2. Employee files counterclaim for unpaid compensation. 3. Employee wins on summary judgment for unpaid compensation, but Employer wins jury trial on breach of duty. Jury awards no damages. 4. Court of Appeals reverses: holds genuine issue of material fact exists as to whether Employee forfeits all compensation because of his breach of fiduciary duty. Gruber|Hurst|Johansen|Hail|Shank

  24. Fired for Facebook Posts • 1. EMT fired for negative remarks • 2. NLRB complaint: Overbroad Social Media Policy • 3. Protected Concerted Activity?

  25. City of Ontario v. Quon130 S.Ct. 2619 (2010) • 1. Police Officers Excessive Use of Work Pagers leads to discipline. • 2. Officer files suit for invasion of privacy. • 3. Supreme Court holds search was reasonable.

  26. AT&T Mobility LLC v. Concepcion, 563 U.S. ____ (2011) • 1. Arbitration provision preventing class action. • 2. Provision held unconscionable under California state law. • 3. Supreme Court reverses: FAA preempts state law. • 4. Impact to employer DRPs?

  27. Employees' Use of Medical Marijuana • Fifteen jurisdictions have medical marijuana statutes Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington, and Washington D.C. • Rise of discrimination claims for employees terminated for marijuana use. • Supreme Courts for Oregon and California hold for employers.

  28. COVENANTS NOT TO COMPETE 1. Sheshunoff/Mann Frankfurt. 2. Interest Worthy of Protection. 3. Scope a) time b) geography c) activity. 4. Greater Restraint than Necessary. Gruber|Hurst|Johansen|Hail|Shank

  29. COVENANTS NOT TO COMPETE (cont’d) 5. Attorney’s Fees - To Enforce - To Defend. 6. Injunction. 7. Reformation. 8. Choice of Law/Choice of Forum. 9. Trade Secret Misappropriation. Gruber|Hurst|Johansen|Hail|Shank

  30. WORKERS’ COMPENSATION RETALIATION Most common claims: 1. Discharge; 2. Hostile work environment; 3. Failure to allow light duty. Gruber|Hurst|Johansen|Hail|Shank

  31. FLSA claims 1. Still multiplying. 2. Correct classification is key. 3. Capturing all hours worked is key. 4. Care in reclassification conversations. 5. Damages are exponential. Gruber|Hurst|Johansen|Hail|Shank

  32. FLSA 1. Partial day deductions from PTO bank. 2. Yes, so long as PTO time available DOL Opinion Letter. Gruber|Hurst|Johansen|Hail|Shank

  33. FLSA “Hot Buttons” 1. Work time issues at the start and end of the work day. 2. Time recording issues that complicate class claims. 3. Steps an employer can take to minimize the risks. Gruber|Hurst|Johansen|Hail|Shank

  34. Hours Worked—Generally 1. Work includes activities that are - Primarily intended for the benefit of the employer; and - Suffered or permitted by the employer. 2. “Suffered or permitted” means the employer knew or should have known about the activity. Gruber|Hurst|Johansen|Hail|Shank

  35. Hours Worked—Impact of Alvarez 1. Supreme Court addressed work time issues in IBP v. Alvarez in 2005. 2. Embraced Department of Labor’s “continuous workday” rule. 3. Found activities that are integral and indispensible to principal activities are themselves principal activities for starting the workday. 4. In contract, preliminary and postliminary activities are not work and do not start the workday. Gruber|Hurst|Johansen|Hail|Shank

  36. Issues at the Start and End of the Work Day 1. Potential work at home. 2. Commuting and travel time. 3. Security screening. 4. Clothes changing and equipment donning and doffing. 5. Waiting and walking time. 6. Pass-down time and employee discussions. 7. Computers, equipment, and tools. Gruber|Hurst|Johansen|Hail|Shank

  37. Rest Periods 1. Not required by FLSA. 2. If granted, breaks of short duration (5-20 minutes) must be compensated. 3. Cannot offset against other types of work time such as paid waiting or on-call time. 4. Break 30 minutes or longer does not have to be compensated if employee is completely relieved from duty. Gruber|Hurst|Johansen|Hail|Shank

  38. Meal Periods 1. Not required by FLSA. 2. Not work time. 3. Bona fide meal periods ordinarily 30 minutes. - Shorter time period may suffice under special circumstances. 4. Employee must be completely relieved from duty for duration of the break. - Employer need not permit to leave the premises. 5. “Completely relieved from duty” standard in the regulations may be yielding to “predominant benefit” test. Gruber|Hurst|Johansen|Hail|Shank

  39. WACKY CASES

  40. Maternity Clothier Sued for Pregnancy Discrimination

  41. Talk of “Cat Rape” Not Actionable

  42. Drunken Zamboni Driver Skates

  43. “Too Old, Too Country”

  44. Internet Addiction a Disability?

  45. “Jesus-Guy” Syndrome

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