Strasburger Labor and Employment News

Supreme Court Agrees with Grandma: Don’t Sleep in Church!

Tue, 17 Jan 2012 12:00:00 CST

by W. Mark Bennett
My grandmother, who for over 50 years took care of the babies in our church, only had one rule for me on Sundays: Don’t fall asleep during service! Of course, for my transgressions I could expect a good scolding and possibly a nice warm back-hand. Little did I know that if the Preacher fell asleep he could lose his job...

Will Granny Go to Court?

Mon, 19 Dec 2011 08:00:00 CST

by Allison Reddoch
The sixth-grade transition from cubby to locker is an American rite of passage. With the locker comes four minutes of freedom between classes for students to get books from their lockers, and to chat with friends. Teachers also prize those four minutes as valuable for class preparation or decompression, but the time is often drained away by the flood of students choking the halls...

Firepower in the Parking Lot

Fri, 02 Dec 2011 08:00:00 CST

by Martin Thornthwaite
Since September 1, 2001, employees have been able to store certain firearms in their vehicles on company property. The signing of Senate Bill 321, otherwise known as the “Parking Lot” law, by Governor Rick Perry amended the Texas Labor Code to expand legal rights for gun owners. The Parking Lot law provides that a public or private employer may not prohibit an employee who lawfully possesses a firearm from keeping the weapon in a locked, privately owned vehicle in parking areas provided by the employer...

Do Churches, Synagogues, and Mosques really have to retain a Narcoleptic Teacher?

Mon, 31 Oct 2011 08:00:00 CST

by Katie Anderson and Kim Hodgman
Anti-discrimination and retaliation statutes generally apply to all employers, even private religious ones. However, churches have long enjoyed the protection of “the ministerial exception” which prevents ministers from suing their churches over most employment disputes. The term “ministers” includes pastors, priests, and rabbis, but can it also extend to teachers at parochial schools who engage in protected activity? The U.S. Supreme Court may soon bless this extension after hearing oral arguments in the Hosanna-Tabor Evangelical Lutheran Church case a few weeks ago...

But what if she had worn a mini-skirt with her hijab?

Mon, 03 Oct 2011 10:00:00 CST

by Tiffany G. Hildreth
By now, who hasn’t heard about retailer Abercrombie and Fitch getting in trouble for allegedly requiring their employees to wear less, rather than more, clothing? All summer, reports kept popping up about the EEOC taking action against Abercrombie for purportedly terminating an employee who refused to remove her hijab. Apparently, Abercrombie did not accommodate the employee’s religious beliefs and allow her to wear her hijab on the job....

Aim to Maim the Cat’s Paw!

Thu, 01 Sep 2011 15:00:00 CST

by Jerae Carlson
In March, the U.S. Supreme Court dealt a blow to employers in Staub v. Proctor Hospital by expanding employer discrimination liability via the cat’s paw liability theory. Just a few weeks ago,however, in Ordogne v. AAA Texas, LLC, a Texas federal district court dismissed a 42 U.S.C. § 1981 retaliation claim that relied heavily on Staub. Employers would be wise to heed Ordogne’s lessons on how to maim the cat’s paw and escape liability...

What to do when the going gets (even) tougher: Hard and Fast Tips for Employers in a Soft Labor Market

Wed, 03 Aug 2011 07:00:00 CST

by Ginny Hawkinson and Kelly D. Herrera
We all knew the Texas labor market was bleak. But now I’ve seen it with my own eyes. Every month, the Houston Bar Association hosts Saturday legal clinics to assist underprivileged citizens with their legal needs. While always well attended, the crowds at these clinics over the last few months have been nothing short of staggering. It recently reached a point where folks were turned away due to the hundreds of people in line before them. Their stories are remarkable and sad...

Wal-Mart Workers Not Common Enough?

Thu, 30 Jun 2011 15:00:00 CST

by Francine W. Breckenridge
On June 20, 2011 the United States Supreme Court jettisoned the largest class action sex discrimination case in history. The class was comprised of more than 1.5 million female Wal-Mart employees nationwide who performed approximately 3,400 different jobs in a variety of states under different supervisors. The Plaintiffs had sued Wal-Mart Stores, Inc. claiming that Wal-Mart paid women less and gave them fewer promotions. The Justices unanimously ruled that the back pay claims of Plaintiffs were not properly certified under the federal class action rule 23(b)(2). On the other hand, only a narrow majority of them agreed with Wal-Mart’s arguments that the Plaintiffs did not have enough “in common” to be joined together in one single class...

FACEBOOK FIRINGS FIZZLE? The Challenges for Employers

Fri, 27 May 2011 07:00:00 CST

by Monica Velazquez
According to its slogan, Facebook “helps you connect and share with the people in your life.” As some unlucky employees have recently learned, this may include your boss and co-workers. Social media continues to change and influence the American workplace and employers need to understand the legal pitfalls that are associated with disciplining and terminating employees for their comments or posts. Recent examples illustrate just how unfriendly social media may turn out to be for both sides....

Strike Three for Employers--Squeaky Wheels at Work are also Protected from Retaliation

Fri, 25 Mar 2011 16:00:00 CST

by Ginny Hawkinson and Kimberly S. Moore
On March 22, 2011, the United States Supreme Court held that the scope of the phrase “filed any complaints” in the antiretaliation provision of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 215(a)(3), includes oral, as well as written complaints. In Kasten v. Saint-Gobain Performance Plastics Corp., 2011 U.S. LEXIS 2417 (2011), the Court found that the employee, Kasten, could proceed with his antiretaliation lawsuit based on the oral complaints about the location of a time clock that he made to his employer Saint-Gobain......

Illegal Immigration Laws: Let’s Get Ready to Rumba!

Tue, 01 Mar 2011 12:00:00 CST

by D. Bradley Kizzia
The Texas Legislature only meets every other year, and for some employers that may be considered a blessing. The legislative session of 2011 promises to be interesting, if not problematic for employers. For instance, take the hot issue of illegal immigration. On February 22, thousands took part in a march to the state capitol in Austin to protest a series of legislative proposals aimed at cracking down on illegal immigration. Such a legislative effort was a theme of many victorious campaigns of legislative candidates, and since then approximately 80 bills have been filed by Texas lawmakers aimed at curbing or punishing illegal immigrants and those who seek to employ them, similar to laws recently passed in Arizona.....

“Cocktail Waitress in a Dolly Parton Wig” Need Not Apply

Thu, 03 Feb 2011 12:00:00 CST

by Jana Woelfel
Anyone who has ever spent much time with teenagers could confirm the adage that it is impossible to legislate taste. Any HR professional charged with enforcing a company’s dress code could confirm that it isn’t always intuitive to today’s workforce what is appropriate for the workplace....

Despite the Trend, Some Texas Noncompetes Remain Unenforceable

Tue, 26 Oct 2010 17:00:00 CST

by Kim Moore
In the wake of the Sheshunoff and Mann-Frankfort Texas Supreme Court decisions numerous courts have followed the state high court’s lead and ruled that Texas noncompetes in at-will employment agreements are enforceable......

Are Your Background Check Policies Making Your Company a Target for a Class Action Lawsuit?

Wed, 29 Sep 2010 09:00:00 CST

by Paul L. Myers
By now, most employers know that the Fair Credit Reporting Act (“FCRA”) covers background checks and that the applicant or employee must authorize the employer to obtain a background report (a “permissible purpose”). Abiding by this law seems easy, most likely because third-party vendors who sell background reports routinely provide employers with the requisite forms for obtaining the authorization. But, if your company takes adverse action against an applicant or employee based upon information in the authorized background report, will it handle the other FCRA requirements correctly?.....

Financial Reform Legislation Provides new Incentive and Protection for Whistleblowers of Securities Law Information

Tue, 31 Aug 2010 06:00:00 CST

by Katie Anderson
Last month, a new federal bill passed that financially rewards employees for reporting their employers’ violations of securities law, while simultaneously protecting them from any employer retaliation. Needless to say, The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Act”) will give employees extra incentive to keep a close eye on their employers’ investment, trading or public securities disclosure and reporting activities......

Employers Should Pay Close Attention to Two Retaliation Cases Set for Hearing During the Supreme Court’s Next Term

Mon, 02 Aug 2010 09:00:00 CST

by Martin Thornthwaite
The Supreme Court’s next term begins in October 2010, and two important retaliation cases are set to be heard: Thompson v. North American Stainless, LP and Kasten v. Saint-Gobain Performance Plastics Corp. If the Supreme Court affirms these holdings, the class of employees capable of bringing Title VII and FLSA retaliation lawsuits will be significantly limited....

UPDATE – Employee Privacy: When Are Employee Text Messages On Government-Issued Devices Protected

Thu, 24 Jun 2010 09:00:00 CST

by Martin Thornthwaite and Allison Reddoch
This is an update to Strasburger’s January 2010 Labor & Employment (“L&E”) Newsletter discussing the Ninth Circuit’s holding in Quon v. Arch Wireless Operating Company, and the United States Supreme Court’s granting of the City of Ontario (the “City”), the Ontario Police Department (“OPD”), and the OPD’s Chief’s petition for certiorari on December 14, 2009. The suit arose after police department officials for the City obtained transcripts of text messages between two police officers and another government employee while investigating whether department-issued pagers were being used for non-work purposes....

Increased Scrutiny of Companies Using Independent Contractors

Tue, 25 May 2010 09:00:00 CST

by Francine W. Breckenridge
Ms. Clasifyed has independent contractor agreements with all of her bakery delivery drivers. She also supplies the delivery trucks, gas, schedules the drivers’ work hours and pays the drivers by the hour. She knows that the twenty-factor common-law test (now found at IRS Rev. Rul. 87-41) to determine if a worker is an independent contractor or an employee is confusing and frustrating, and she really can’t tell by reading those factors which employment status category applies to her drivers. She understands that there is a chance that some authority might maintain that the bakery drivers are really “employees,” but she also knows that Section 530 of the IRS Revenue Act of 1978 provides a “safe harbor” provision. If she has a “reasonable basis” to support her independent contractor classification, then more than likely, no employment tax penalties will be imposed on her business for wrongfully classifying the drivers.....

Smelly in the workplace? Just how expensive is that perfume you are wearing? New Forms of Discrimination under the Expanded ADA

Thu, 29 Apr 2010 09:00:00 CST

by Monica Velazquez
It must be allergy season. As federal law expands to cover more qualified individuals with disabilities in the workplace, one unexpected development is the treatment of employees who experience severe allergies or chemical sensitivities and its effect on other individuals in the workplace. When an employee has severe allergies or extreme sensitivity to perfumes or other fragrances, resolving the issue is made more difficult by the fact that, in order to help him/her, you must typically resort to extreme and difficult measures – such as requesting the cooperation of co-workers in refraining from wearing scents or instituting policies that affect all employees. Under expanded federal law, you may be forced to take such actions or risk a disability discrimination claim....

First Appellate Court Decision Involving Lilly Ledbetter Refuses to Apply Act Beyond Claims of Pay Discrimination

Wed, 17 Mar 2010 09:00:00 CST

by Tiffany L. Cox
Slightly one year after the passage of the Lilly Ledbetter Fair Pay Act of 2009 (“Ledbetter Act”), the Court of Appeals for the District of Columbia recently issued a decision declining to apply the Ledbetter Act to extend the limitations period for a time-barred age discrimination claim arising out of several instances of partnership denial. Schuler v. PricewaterhouseCoopers, LLP, --- F.3d ----, 2010 WL 522345 (D.C. Cir.2010). The Schuler decision rejects the broader view of the Ledbetter Act advanced by some members of the plaintiffs’ bar that the Act extended beyond pay discrimination claims to other forms of discrimination.....

Independent Contractor Issues - Don’t Set Yourself Up As A Target

Mon, 08 Mar 2010 09:00:00 CST

by Tiffany G. Hildreth
The cold winds of February swept in chilly news for employers. On February 1, 2010, the U.S. Department of Labor (“DOL”) released its 2011 fiscal year budget in which it sought $25 million for a “Joint Labor-Treasury Misclassification Initiative” to detect, investigate, and prosecute employers who misclassify their workers as independent contractors (“ICs”). Just two weeks later, the Associated Press reported that the Internal Revenue Service (“IRS”) and 37 states had also set their sights on companies that improperly classified workers as ICs....

Texas Physician Noncompete Agreements: Clarifications or More Questions?

Wed, 03 Mar 2010 09:00:00 GMT

by Jerae Carlson
The Texas Covenant Not to Compete Act (the “Noncompete Act”) has long provided that a noncompete agreement is enforceable “if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.” Tex. Bus. & Comm. Code § 15.50(a). Without regard to the employment position or industry at issue, these are “Universal Requirements.” However, there are additional criteria for a noncompete to be enforceable against a Texas-licensed physician. The covenant not to compete must.....

Employee Privacy: When Are Employee Text Messages On Government-Issued Devices Protected?

Tue, 05 Jan 2010 09:00:00 GMT

by Martin Thornthwaite
Just two weeks ago, the United States Supreme Court agreed to review whether governmental employees have a reasonable expectation of privacy when texting on government-issued pagers. The Court’s decision could likely set the tone for future texting/invasion of privacy cases against both public and private employers.....

Employee Investigations Can “Fuel” Defamation Lawsuits

Wed, 21 Oct 2009 09:00:00 GMT

Employee Investigations Can “Fuel” Defamation Lawsuits by Ashley S. Wilson
Employers frequently investigate employee misconduct and often those investigations spawn allegations about an employee that may or may not be true. Such allegations can become the spark that ignites a defamation lawsuit. The recent Fifth Circuit opinion in Lawrence Frakes v. Crete Carrier Corporation illustrates how employers may prevail in a defamation suit through application of a qualified privilege under Texas law, even when the employee counters with claims of “no interest or duty,” “actual malice,” “purposeful avoidance of truth” and “negligent communication.”....

Anti-Entergy Legislation Loses Energy

Thu, 01 Oct 2009 11:00:00 CST

by D. Bradley Kizzia
On April 3, 2009, the Texas Supreme Court rendered its opinion in Entergy Gulf States, Inc. v. Summers. In a split decision on rehearing, the Court essentially upheld its 2007 opinion so as not to change the ultimate holding, that is, that a premises owner that contracted to provide workers compensation for its contractors and employees is protected by the exclusive remedy and workers compensation bar from a work-related personal injury claim of such contractors and employees. Soon after this controversial decision, bills were introduced in the Texas House and Texas Senate intended to reverse the Court's decision. House Bill 1657 narrowly passed the House, but the Senate legislation stalled......

Lessons Learned from Wage and Hour Class Actions Against Starbucks, Wal-Mart, FedEx and Domino’s Pizza

Thu, 27 Aug 2009 11:00:00 CST

by Kim Moore
As many return to classrooms, the relentless number of high dollar wage and hour class actions reinforce the need for a refresher course. According to the Department of Labor (“DOL”), a staggering seventy percent of all businesses are not in compliance with wage and hour laws. The DOL enforces the Fair Labor Standards Act (“FLSA”), which includes the appropriate calculation and payment of minimum wage and overtime and the proper classification of employees as exempt/non-exempt and employee/independent contractor.....

What Will Health Care Reform Mean for Employers?

Tue, 28 Jul 2009 11:00:00 CST

by Paul L. Myers
Committees in both houses of Congress are working on health care reform bills. While there are differences between the draft bills, a few common elements are taking shape, and they will dramatically impact employers....

Does Supreme Court Hose Down Standard for Discriminatory Intent in Firefighter Suit?

Mon, 29 Jun 2009 15:00:00 CST

by Katie Anderson
Today, [June 29, 2009] the United States Supreme Court ruled 5-4 in favor of a group of white firefighters in one of the year’s most anticipated racial discrimination cases. The group of firefighters challenged the City of New Haven, Connecticut’s decision in 2003 to throw out the results of an exam taken for consideration of promotion to the positions of lieutenant or captain....

Two Steps Forward, One Step Back – Congress and the Supreme Court Take Turns Leading the Employment Law Dance.

Tue, 23 Jun 2009 08:00:00 CST

Two Steps Forward, One Step Back – Congress and the Supreme Court Take Turns Leading the Employment Law Dance. by Tiffany G. Hildreth
On June 18, 2009, the U.S. Supreme Court issued its Gross v. FBL Financial Services, Inc. decision¹ holding that plaintiffs alleging age discrimination under the Age Discrimination Employment Act (“ADEA”) cannot prevail if they merely prove that their age was one of the motivating factors in the employer's decision. Instead, plaintiffs seeking recourse under the ADEA must prove by a preponderance of the evidence that, “but for” their age, the employer would not have taken the adverse employment action. While employers may have cause to rejoice, they should be wary of any long-term result. This decision mirrors the first step in what could be deemed the “Lilly Ledbetter Minuet” of the past two years – a dance which began with the Court issuing a decision based upon the plain wording of the statute at issue and led to Congress immediately enacted new law to essentially change the plain wording of the statute at issue and has since led to the Court narrowing the scope of the new law.....