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
Stephen Fox is a partner in the firm's Labor and Employment and Business Trial Practice Groups in the firm's Dallas office.
On January 5, 2023, the Federal Trade Commission (“FTC”) announced a broad proposed rule that would ban employers from imposing noncompete clauses on their workers. The FTC press release announcing the proposed rule states that noncompete clauses—which apply to about one in five American workers—suppress wages, hamper innovation, block entrepreneurs from starting new businesses and reduce American workers’ earnings between $250 billion and $296 billion per year. The proposed rule would prohibit employers from: (1) entering into or attempting to enter into a noncompete with a worker; (2) maintaining a noncompete with a worker; or (3) representing to a worker, under certain circumstances, that the worker is subject to a noncompete. The term “worker” covers paid staff in addition to independent contractors and unpaid staff. The proposed rule does not apply to noncompete provisions imposed upon 25% owners of a business in transaction documents related to the sale of the business. The proposal is subject to a 60-day public comment period commencing when the Federal Register publishes the proposed rule.Continue Reading FTC Seeks to Ban Noncompete Agreements in Employment Contracts
On October 13, 2022, the U.S. Department of Labor (“DOL”) published its proposed rule regarding the classification of employees and independent contractors under the Fair Labor Standards Act (“FLSA”) in an attempt to resolve inconsistent analyses amongst the Federal Courts of Appeals. The proposed rule would return to a totality-of-the-circumstances analysis of the “Economic Reality Test” (with a few modifications), which would have the effect of making it more difficult to classify workers as independent contractors.Continue Reading The Haunting Return of the Economic Reality Test: U.S. Department of Labor Proposes Resurrecting the Pre-Trump Era Employee/Independent Contractor Test
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
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
Agreements between companies who compete for employees have always been subject to antitrust scrutiny. But recently, “no-poach” agreements—i.e. agreements to not recruit or hire another party’s employees—have become the subject of a recent flurry of government enforcement actions and private class actions.
In this article, we discuss the types of no-poach covenants that are permissible, and the possible civil and criminal risks a company faces by entering into an impermissible no-poach agreement. We also discuss various alternatives to no-poach agreements that an employer can use to protect its workforce from competitor poaching.
Continue Reading Are No-Poach Agreements Becoming Extinct?
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