Last week, the Fifth Circuit Court of Appeals upended longstanding, employer-friendly precedent in cases brought under Title VII of the Civil Rights Act. For decades, an employment discrimination plaintiff in the Fifth Circuit had to demonstrate the “adverse employment action” forming the basis of their complaint constituted an “ultimate employment decision”—which the Court of Appeals effectively limited to hiring, firing, promotion, or compensation. No longer. In a move sure to surprise some, the traditionally employer-friendly Court broadened the scope of cognizable discrimination claims in the Fifth Circuit.Continue Reading Fifth Circuit Upends 30 Years of Title VII Precedent, Making it Easier for Employees to Bring Discrimination Claims
Jonathan Clark is an associate in the Labor and Employment Practice Group in the firm's Dallas office.
Imagine paying millions to acquire a company only to later discover the restrictive covenants in the employment agreements of high-level executives were unenforceable. That’s precisely what happened in Intertek Asset Integrity Management. In Intertek, Texas’s Twelfth Court of Appeals held a company Vice President’s non-compete was unenforceable by the purchaser-entity because the underlying employment agreement lacked an assignment clause. Such language, if included, would have permitted the seller to transfer the contract’s rights and obligations without the employee’s consent. Assignability clauses are frequently buried in the “miscellaneous” section of agreements and—too often—omitted. Businesses who overlook these terms in Texas employment contracts do so at their peril.Continue Reading Missed Assignments: The Importance of Assignability Clauses in Restrictive Covenant Agreements
On June 24, 2022, in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overturned both Roe v. Wade and Planned Parenthood v. Casey and held the access to abortion is not a right protected by the United States Constitution. This article analyzes several employment law issues employers may face following the Dobbs decision.Continue Reading What Employers Need to Know in a Post-Dobbs Landscape
On December 17, 2021, in a “Friday Night Surprise” the Sixth Circuit Court of Appeals lifted the Stay on the Federal Occupational Safety and Health Administration’s COVID-19 Emergency Temporary Standard (ETS). This seminal ETS applies to employers with 100 or more employees and requires that employees be either (1) vaccinated; or (2) weekly tested and fully masked if unvaccinated. While it is anticipated that the Supreme Court will ultimately decide whether the ETS stands, OSHA has already stated that they will begin enforcement of the ETS in January 2022. Specifically, OSHA will enforce all requirements except testing for unvaccinated employees beginning January 10, 2022, and enforcement related to testing will begin February 9, 2022.
Continue Reading OSHA Emergency Temporary Standard Survival Guide
In a move sure to generate controversy, confusion, and litigation, on October 11, 2021, Texas Governor Greg Abbott issued an Executive Order effectively prohibiting all private businesses from requiring employees or customers be vaccinated against COVID-19.
Continue Reading COVID Confusion: Texas Governor Issues Executive Order Effectively Banning Vaccine Mandates
Total Planetary Alignment. Halley’s Comet. A Full Solar Eclipse. Texas Enacting Heightened Employee Protections Beyond Federal Law.
What are “things that rarely happen in your lifetime?”
In Texas, the general rule is that employee-facing legal protections overlap with—and extend no further than—its federal counterparts. But newly-enacted state legislation concerning workplace sexual harassment has bucked that trend.Continue Reading New Texas Law Expands Employee Rights and Employer Liability for Sexual Harassment Claims
On March 22, 2020, the Chief Executive Officer of Dallas County, Texas (County Judge Clay Jenkins) issued a “Stay Home Stay Safe” order for residents of Dallas County. The Order takes effect at 11:59 p.m. on March 23 and continues until midnight on April 3rd.
Continue Reading Go Home, Dallas: County Enacts “Shelter in Place” Order in Wake of Pandemic
Earlier this year, a three-judge panel of the Fifth Circuit Court of Appeals unanimously rejected the notion that Title VII of the Civil Rights Act protects individuals from discrimination on the basis of their sexual orientation or transgender status. More than a standard-issue opinion, however, the Fifth Circuit’s holding was a laser-focused rebuke of a widely-publicized district court opinion which held Title VII’s prohibition on sex-discrimination applies to transgender individuals.
Continue Reading Title VII Reversal: Fifth Circuit Holds No Transgender Protections Under Civil Rights Statute
A 21st Century Social Movement
In this age of interconnectivity, compelling societal movements have a never-before-seen speed and reach. Traditional means of spreading information and generating social change have been supplemented—if not outright replaced—by the near-instantaneous ability of an idea or cause to go viral on social media, regardless of its source. In 2018, the gatekeepers—and indeed, the gates—to disseminating content and generating popular support are being dismantled before our eyes. Nowhere over the past year was this more evident than in the #MeToo movement.
Continue Reading EEOC Data Confirms #MeToo’s Impact: Six Keys for Employers in the Wake of This Powerful Cultural Moment
Last week, the ridesharing giant, Uber, secured a resounding legal win when a federal judge dismissed a putative class action lawsuit alleging the company violated the Fair Labor Standards Act by failing to pay drivers overtime. The ruling is enormously important, not simply for Uber, but for the growing rideshare technology industry as a whole.
Less than a decade ago, outside of calling a cab company and hoping for the best, the notion of reliably getting from ‘here to there’ via a few button presses on a cell phone was unthinkable. Things have changed. Uber—the now-ubiquitous application that allows patrons to hail various styles of ride—has wholly disrupted the transportation service industry. According to the latest estimates, over 160 thousand Uber drivers dot the roads. Those drivers provide approximately 40 million rides each month, and the company’s 2017 valuation reached $69 billion. The term “Uber” has become a verb (e.g., “I’ll Uber there”) analogous to “just Google it” or “xerox the document.”Continue Reading Uber Drivers’ Class Action Lawsuit Hits Permanent Red Light
In a landmark ruling, a federal court judge in Texas issued an opinion holding—unequivocally—that Title VII protects transgender individuals from discrimination based on their gender identity. Wittmer v. Phillips 66 Company, No., 4:2017-cv-02188 (S.D.Tex, April 4, 2018). The ruling is the first of its kind in Texas and will likely have a major impact in Texas workplaces. Indeed, recent studies have shown that approximately 430,000 workers in Texas identify either lesbian, gay, bisexual, or transgender (LGBT). Of that number, 79% of transgender workers in Texas have reported—either formally or informally—some kind of discrimination in the workplace, including harassment, discriminatory hiring practices, and promotion denials. Texas employers should take note of the recently-issued decision.
Continue Reading Texas Federal Court Rules That Anti-Discrimination Statute Protects Transgender Individuals