Texas Employment Law Blog

Texas Employment Law Blog

Employment Law and Discrimination Issues

Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation

Posted in Overtime Law

Shell Oil Co. and Motiva Enterprises LLC, which markets Shell gasoline and other products, have agreed to pay $4,470,764 in overtime back wages to 2,677 current and former chemical and refinery employees as a result of investigations by the U.S. Department of Labor that found violations of the Fair Labor Standards Act.

The department’s Wage and Hour Division conducted investigations at eight Shell and Motiva facilities in Alabama, California, Louisiana, Texas and Washington, which found that the companies violated FLSA overtime provisions by not paying workers for the time spent at mandatory pre-shift meetings and failing to record the time spent at these meetings.

“Employers are legally required to pay workers for all hours worked,” said U.S. Secretary of Labor Thomas E. Perez. “Whether in the international oil industry, as in this case, or a local family-run restaurant, the Labor Department is working to ensure that responsible employers do not experience a competitive disadvantage because they play by the rules.”

The Wage and Hour Division’s Houston District Office coordinated investigations with the Gulf Coast, New Orleans, San Francisco and Seattle District Offices to ensure nationwide compliance by Shell and Motiva. The findings revealed that those eight Shell Oil and Motiva refineries failed to pay workers for time spent attending mandatory pre-shift meetings. The companies required the workers to come to the meetings before the start of their 12-hour shift. Because the companies failed to consider time spent at mandatory pre-shift meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay of time and one-half their regular rate of pay for hours worked over 40 in a workweek. Additionally, the refineries did not keep accurate time records.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour. Workers who are not employed in agriculture and not otherwise exempt from overtime compensation are entitled to time and one-half their regular rates of pay for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and it prohibits employers from retaliating against employees who exercise their rights under the law.

Source: US Department of Labor

The Reader: Latinos Have Higher Rate of Job Accident Death, Wage Theft: Walks Like a Duck Edition, and Fifth Circuit Relaxes Retaliation Standard

Posted in Other Articles, Overtime Law, Race / National Origin Discrimination, Retaliation

Here are my Reader picks for today, September 16, 2014:

  •  Latino Workers Dying at Higher Rates in Job Accidents-As Latino workers take on more and more of the nation’s toughest and dirtiest jobs, they increasingly are paying for it with their lives. Preliminary federal figures released last week showed that of the 4,405 U.S. workers killed on the job in 2013, 797 were Latinos. That equates to 3.8 of every 100,000 full-time Latino employees in the U.S. dying in workplace accidents during the year. The fatality rate for Latinos was up marginally from 3.7 per 100,000 workers in 2012, and was significantly higher than the 2013 fatality rates of 3.2 for whites, 2.9 for blacks and 1.5 for Asians. Safety experts point to reluctance among many Latino workers, particularly immigrants, to protest job hazards. They commonly attribute the reluctance to language barriers or fears that complaining about working conditions will cost them their jobs or even lead to deportation. In addition, worker advocates blame weak federal and state regulation and a trend of employers increasingly giving dangerous jobs to temporary workers, including some with little training.
    Source: Fair Warning Reports
  • How much Retaliation is Enough to Make it Actionable  - A continuing, unresolved issue under Title VII is what constitutes sufficient discrimination in ”terms, conditions, or privileges of employment” to make a retaliation claim actionable. Most courts require proof of a “materially adverse employment action,” which can include being placed on a more onerous schedule or subjected to unhealthful conditions. But the Fifth Circuit has long required proof of a more exacting “ultimate” employment decision, e.g., “hiring, firing, demoting, promoting, granting leave, and compensating.” In a recent 2-1 decision, however, a panel of the court holds that a material diminution of duties not otherwise accompanied by a change in title or pay may be actionable. This is a big deal in the Fifth Circuit.
    Source: Paul Mollica’s Daily Developments in EEO Law

EEOC Sues Taprite Fassco for Sex and Disability Discrimination and Retaliation

Posted in Disability Discrimination, Retaliation, Sexual Discrimination

The Equal Employment Opportunity Commission (“EEOC”) has filed suit against Taprite Fassco Manufacturing, Inc., a San Antonio-based supplier of CO2 regulators in the soda and beer industries, in a case related to a similar case recently filed against the same employer by The McKinney Law Firm. Here is a copy of the EEOC’s press release regarding their filing.

SAN ANTONIO, Texas -Taprite Fassco Manufacturing, Inc., a San Antonio-based supplier of CO2 regulators in the soda and beer industries, violated several federal anti-discrimination laws in its treatment of one of its quality control inspectors, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. The EEOC said the company subjected the woman to gender and disability discrimination and unlawfully retaliated against her for complaining.

According to the EEOC’s lawsuit, after the quality control inspector, a longtime employee, raised questions to management concerning wage disparity between the sexes among workers at Taprite Fassco’s San Antonio plant, management disciplined and demoted her into a less favorable and lower paying assembler position. The employee was physically unable to perform the new job because of her diagnosed rheumatoid arthritis and carpal tunnel syndrome.

The EEOC also charged that Taprite Fassco denied requests for accommodations that would have permitted the employee to continue working, thus violating the Americans with Disabilities Act (ADA). The EEOC said that even after she filed a complaint of discrimination alleging sex discrimination under both Title VII of the Civil Rights Act of 1964 and the Equal Pay Act, Taprite Fassco opted to pay her male replacement (whom she initially trained) substantially more than she was compensated for performing essentially the same work.

The EEOC’s San Antonio Field office filed suit (Civil Action No. 5:14-cv-00801) in U.S. District Court for the Western District of Texas, San Antonio Division, after first attempting to reach a pre-litigation settlement through the agency’s administrative conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

“Enforcing laws that require equal pay for men and women performing the same jobs is a priority for the EEOC,” said David Rivela, senior trial attorney in the EEOC’s San Antonio Field Office. “Our employment statutes also safeguard workers from reprisal when the employees address managers about potentially unlawful practices. The EEOC will vigorously prosecute employers who retaliate against employees for simply seeking answers about their opportunities and protections.”

Daily Read: EEOC vs. Fitness-For-Duty Exams and Ford ADA Telecommuting Case in Overdrive

Posted in Disability Discrimination, Lawsuit Filings

We bring you the best articles in employment law and related workplace HR issues.
Here are our picks for today, September 10, 2014:

  • EEOC takes on fitness-for-duty medical releases – Recent lawsuits and press releases from the U.S. Equal Employment Opportunity Commission show the agency is targeting employers’ fitness for duty examinations. Increasingly, the EEOC is finding that employers’ exams do not violate the law but that those same employers may have violated both the ADA and GINA by requiring an employee to submit overbroad medical release forms in order to complete a fitness-for-duty examination. (GINA prohibits employers from requesting or requiring that employees disclose genetic information). Here is a copy of the EEOC’s press release regarding case filed by the agency this week on just this issue.
    Source: Eric Meyers: Employment Law Handbook
  • Ford Motor ADA Telecommuting Case Still Running – Michael Soltis publishes his fifth article on an important ADA accommodation case that just wont quit. The issue: when, if ever, is telecommuting a reasonable accommodation. This issue is in flux as technology makes telecommuting more and more pheasible for many types of workers.
    Source: Disability Leave Blog

Daily Read: Fast Food Workers: “No Soup for You!”, Paid Sick Leave in California, & A Mother/Law Professor’s Perspective on Ferguson

Posted in FMLA, NLRB, Race / National Origin Discrimination

Several times per week we bring you the best articles in employment law and related workplace HR issues.

Here are our picks for today, September 4, 2014:

  • Fast-Food Strike Today Across The Country - Union organizers running the campaign designed to secure $15 per hour wages for fast-food workers announced on Labor Day that fast-food employees will walk off the job today in approximately 150 cities across the country. The organizers expect that major fast-food hotspots Burger King, McDonalds, and Wendy’s will be hit hard by labor shortages. Today’s planned strike, organized and underwritten primarily by the Service Employees International Union (SEIU), comes on the heels of a July meeting held in Chicago where over 1,000 fast-food workers met to discuss their working conditions. During the meeting, workers agreed to ramp up their efforts to win higher wages.
    Source: Labor Relations Today
  • California Becomes Second State to Offer Paid Sick Leave - Over the holiday weekend, California became only the second state (after Connecticut, which began granting paid sick leave in 2012) to guarantee at least some annual paid sick leave for most full and part-time employees. Assuming Governor Brown signs the bill, California’s law would be the tenth in the nation at the state or local level that requires employers to provide paid sick leave.
    Source: Wage & Hour Insights
  • Employee Wins Reversal of Religious Discrimination Defeat at the Fifth Circuit - Russell Cawyer reports on a victory for a religious discrimination plaintiff at the Fifth Circuit Court of Appeals. The trial court had dismissed the case because the religious accommodation denied was not leave to attend a religious ceremony but rather leave to attend a church-sponsored event that the employee believed to be important to her and her relationship to her church. The appellate reversed the trial court, stating that the issue of whether an event is truly religious or not is a subjective one and that an employee’s sincerity of her religious practice is largely a matter of individual credibility. The court admonished that, therefore, judicial inquiry into the sincerity of a religious belief should be handled with a “light touch” or “judicial shyness.”
    Source: Texas Employment Law Update

Labor Day 2014

Posted in Other Articles

As we head into the Labor Day weekend, here are some quick facts about a holiday that is near and dear to our hearts here at the firm:

How Labor Day Came About

“Labor Day differs in every essential from the other holidays of the year in any country,” said Samuel Gompers, founder and longtime president of the American Federation of Labor. “All other holidays are in a more or less degree connected with conflicts and battles of man’s prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day…is devoted to no man, living or dead, to no sect, race, or nation.”

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those “who from rude nature have delved and carved all the grandeur we behold.”

But Peter McGuire’s place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a “workingmen’s holiday” on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states — Colorado, Massachusetts, New Jersey, and New York — created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.


Have a great Labor Day weekend everybody!

Ninth Circuit Holds FedEx Drivers are Employees, Not Independent Contractors

Posted in NLRB

Many will be surprised to learn that for years FedEx has treated its delivery drivers as independent contractors rather than as normal employees.

Why you ask?

The answer is simple: Money.

FedEx avoided health care costs, workers compensation insurance payments, paid sick leave and vacation, retirement costs and more. FedEx made drivers pay for their  FedEx-branded trucks, FedEx uniforms, and those little hand-held scanners they use. And don’t forget fuel, insurance, tires, oil changes, maintenance, even workers’ compensation coverage.

That all adds up to a lot of money. And that’s why yesterday’s decisions out of the Ninth Circuit Court of Appeals are such a big deal. A three-judge panel of the appeals court ruled that FedEx drivers were employees “as a matter of law” under both California and Oregon law and “FedEx’s labeling of the drivers as ‘independent contractors’ in its operating agreement did not conclusively make them so.”

While I do not practice in California or Oregon, the tests at issue in these decisions do not appear all that different from the tests most other states that I am familiar with use to determine employee vs. independent contractor issues. And that fact could spell big trouble for FedEx and other employers attempting this strategy.

These decisions are part of a slowly-increasing level of scrutiny from the courts towards corporate efforts to save money by characterizing front-line workers as independent contractors and thus avoid normal employment costs.  In another recent decision, the National Labor Relations Board’s general counsel issued an opinion deciding to treat McDonald’s Corp. as a joint employer of its franchisees’ fast-food workers for the purposes of NLRB violation claims.

FedEx has already indicated that it plans to appeal these decisions.

Daily Read: Yes, Facebook IS Protected Activity

Posted in NLRB, Noncompete Law

Several times per week we bring you the best articles in employment law and related workplace HR issues.

Here are our picks for Tuesday, August 26, 2014:

  • Accommodate Religious Beliefs: The EEOC Is Watching - Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job. For some reason, however, religious discrimination claims are on the increase (I’ve seen it in my own practice – primarily around accommodation of employees’ observance of the sabbath.)
    Source: Employment Discrimination Report

Texas Loses Its Suit Against The EEOC Over Agency’s Criminal Background Check Guidance

Posted in Race / National Origin Discrimination

The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.

The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.

It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.

Source: Seyfarth Shaw’s EEOC Countdown Blog


President Obama Signs Fair Pay And Safe Workplaces Executive Order

Posted in Legislation

President Barack Obama on July 31, 2014 signed the Fair Pay and Safe Workplaces Executive Order, continuing with the “year of action” to move forward with authorized and necessary reforms to labor and employment laws despite Congressional gridlock. Since his State of the Union pledge, the President has signed several executive orders impacting federal contractors that will raise the minimum wage, ban discrimination against LGBT workers, and prohibit retaliation for discussing compensation.

The Fair Pay Executive Order requires prospective federal contractors to disclose labor law violations and will give federal agencies more guidance on how to consider such breaches when awarding federal contracts. Significantly, the Executive Order extends the Franken Amendment to companies with federal contracts (not just defense contractors) over $1 million, prohibiting them from requiring their employees to enter into pre-dispute arbitration “agreements” for disputes arising out of Title VII of the Civil Rights Act of 1964 or from torts related to sexual assault or harassment (except when valid contracts already exist).

The Franken Amendment, first enacted in 2009, bans defense contractors receiving federal contracts over $1 million from forcing their employees to arbitrate the same types of claims. The Executive Order builds on a policy already passed by Congress and successfully implemented by the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws. The White House fact sheet on the Executive Order can be found at www.whitehouse.gov.

The National Employment Lawyers Association and its Fair Arbitration Now coalition partners issued a statement praising the President’s action, urging Congress to ban forced arbitration for all employment disputes by enacting the Arbitration Fairness Act (AFA, H.R. 1844/S. 878).