Texas Employment Law Blog

Texas Employment Law Blog

Employment Law and Discrimination Issues

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Posted in Age Discrimination, Disability Discrimination, FMLA, HR Management, Lawsuit Filings, Legislation, NLRB, Noncompete Law, Other Articles, Overtime Law, Pregnancy Discrimination, Race / National Origin Discrimination, Retaliation, Sexual Discrimination, Social Media, Trial Practice & Litigation Issues, Unemployment & COBRA, Verdicts & Settlements, Wage & Hour Law, Workers Compensation Discrimination, Workplace Injuries


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Non-Compete Agreements Are The New Black, Part 1

Posted in Noncompete Law

Non-Competes Ne BlackAs employment lawyer Eric Meyer put it last week in his article on the subject, “orange non-competes are the new black.” They are increasingly being used by employers everywhere against all types of employees – from “tech workers to sandwich makers.” Recent statistical studies indicate that one in four workers have signed a non-compete in their lifetime and 12.3 percent all workers are bound by one right now.

These numbers will understandably vary widely from state to state and from industry to industry. From my own experience working with hundreds of Texas employees in non-compete cases, it would not surprise me if the numbers are even higher for Texas workers.

In his article, Meyer indicates his surprise that so many employees who are presented with a non-compete agreement simply sign it without protest. He was also surprised by the relatively small percentage of employees who try to argue with their employer about the issue.  The Washington Post article to which he refers notes the following:

“And overall, only about 10 percent of workers who’ve signed a non-compete ever try to argue over it, with most assuming that it’s either not negotiable or that doing so would cause tension with an employer.”

In my personal opinion, non-compete agreements are morally justifiable only in the most extreme cases — situations in which employees truly will be given access to real trade secret information that would obviously cause serious harm to an employer if it got into the hands of a competitor (think secret recipe of eleven herbs and spices). This is a very small percentage of workers. And yet we see that more and more employees are being asked and are agreeing to sign such agreements and thereby damage their ability to work in their chosen field should they be fired or choose to leave their employer.  Why?

I think there are a few reasons for this phenomena:

  • An actual or perceived weak bargaining position. — A majority of the time non-competes are presented at or just after the point of a job offer being made. Employees believe that if they want the job then they have no choice but to sign the agreement.
  • Employees don’t realize what they are signing. — Many times employers slip non-compete agreements in along with the 30 other documents that a new employee must sign on his or her first day. They then rush them through the process and absolutely do not encourage the new employee to actually take the time to read and consider the documents they are signing. I would estimate that 30%-40% of those who consult with me because they have been sued or threatened with a lawsuit relating to a non-compete state they were not even aware that they had signed such an agreement.
  • An incorrect belief that such agreements are not enforceable. – The enforceability of non-compete agreements is largely a creature of statute and varies dramatically from state to state but here in Texas such agreements are, generally speaking, very enforceable. But this wasn’t always the case. As big business interests have increased their stranglehold of Texas’ legislature and its courts over the last 20 years, the law regarding non-competes has done nearly a full 180. Non-compete agreements – once considered to be not worth the paper they were written on – are now as good as gold. Yet people’s perceptions of such agreements have been slow to catch up.

So, given this state of affairs, what should an employee who is presented with a non-compete do to protect himself or herself? I’ll address this in a follow-up post next week. Continue Reading

Employment Litigation is Too Expensive

Posted in Trial Practice & Litigation Issues

Sticker Shock

Sources I trust say that defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000. If an employer loses summary judgment (which much more often than not is the case), the employer can expect to spend a total of $175,000 to $250,000 in legal fees just to take a case to a trial. (Source) Obviously this will vary somewhat based on geography but, even adjusting for that issue, this is a crazy amount of money to spend defending your average employment discrimination case.  The average employment case settles out of court for about $40,000. (Source)

Simply put, defending employment lawsuits costs too much. Why on earth are companies paying $75,000 to $250,000 to defend cases that, on average, can be settled for $40,000?


You May Be More Biased Than You Think

Posted in HR Management

I have spent many years fighting against intentional civil rights violations in the workplace. Workplace discrimination is a terrible thing. It destroys careers, harms families, and is bad for the economy. And most people, I truly believe, are against it.

But what science is now showing us is that even very good, well-meaning people can discriminate at an unconscious level. According to this science, you are doing it right now as you read this.

You’re faced with around 11 million pieces of information at any given moment, according to Timothy Wilson, professor of psychology at the University of Virginia and author of the book Strangers to Ourselves: Discovering the Adaptive Unconscious. The brain can only process about 40 of those bits of information and so it creates shortcuts and uses past knowledge to make assumptions.

So how do we deal with this information overload? Our brains compensate by making assumptions (aka “stereotypes”) for everything…and everyone one we encounter. In other words, we are guided in our decision-making not just by the objective data we received but also by what we expect to be true. This can be an especially challenging problem for those who are trying to make hiring decisions in an ethical and unbiased manner. The hardest part of this is that we don’t feel or believe that we are allowing bias to color our perceptions…but it does anyway.

This issue effects every company across the country and it is a serious problem that can only be addressed by actively discussing it and taking active steps to acknowledge and eliminate our unconscious biases. This Fast Company article discusses the problem and some tactics that we can all use to combat it.  It’s a good article and I commend it to your reading.

So if my biases are “unconscious” how can I do anything about them? After all, I don’t even know I’m being biased right? Well, not exactly. We know you are being biased. We now know that we are all biased. So the remedy is to change the way we make decisions so that these unconscious biases are limited by the systems we design. Taking pictures, names, etc out of hiring materials so that initial hiring decisions (or interview lists) are made without knowledge of the candidates’ demographic information is one simple example. Creating clear criteria for evaluating candidates before looking at their qualifications is another. More reliance on objective data and less reliance on your “gut” should be the goal.

The article discusses this in greater detail here. It is an important issue that I hope employers and HR specialists start to pay greater attention to.



The Reader: SCOTUS to Hear Religious Discrimination Case; UAW Gets Backing in Effort to Unionize VW Plant; and Luring Lawyers to Rural America

Posted in Other Articles

Here are the Employment Law Reader Entries for October 6, 2014:

  • The U.S. Supreme Court Will Hear Religious Discrimination Case – The U.S. Supreme Court has granted review in a religious discrimination case to determine whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee. In this case, the employer did not hire a Muslim woman who wore a headscarf to a job interview. Neither the subject of the headscarf nor the plaintiff’s religion was discussed during the job interview.
    Source: Employer’s Advisor
  • UAW gets backing from German unions to organize VW – We continue to follow a story that we have previously reported on this blog – the attempts to unionize VW’s Tennessee car plant. The UAW has gained two German allies in its bid to organize Volkswagen workers in Chattanooga, Tenn. German union IG Metall and the Volkswagen Global Group Works Council signed a letter of intent Sept. 9 with the UAW to “Organize Volkswagen’s Chattanooga, Tennessee workers as a UAW-represented facility and to begin the process of formation of a works council there.
    Source: Detroit Free Press;  Hat Tip: Robin Shea
  • In rural America, there are job opportunities and a need for lawyers – Not employment law per se but an interesting article regarding state governments cooperating with bar associations to bring lawyers to rural areas that desperately need legal services. Nearly 20 percent of Americans live in rural areas, but the New York Times says just 2 percent of small law practices are in those areas. Those still practicing law in small towns are often nearing retirement age, without anyone to take over their practices. And without an attorney nearby, rural residents may have to drive 100 miles or more to take care of routine matters like child custody, estate planning and taxes. For people of limited means, a long drive is a logistical hardship, requiring gas, a day away from work and sometimes an overnight stay. And census information shows that rural communities are disproportionately poor. All this creates a “justice gap,” with legal needs going unmet because potential clients can’t find a lawyer, or they can’t afford the lawyers they can find.
    Source: ABA Journal

The Reader: Work Life Balance in France; Prohibiting Off-Duty Drinking by Alcoholics Violates ADA

Posted in Disability Discrimination, HR Management

Here are the Employment Law Reader Entries for September 22, 2014:

  • Achieving a Work Life Balance in France – Here in America we seem to simultaneously lament the absence of work-life balance while at the same time take pride in our Forty-Hour-Workweeks-Are-For-Wimps work ethic. And while we make light of European views on the topic, my personal opinion is that Western Europe is way ahead of us on this issue. The issue of reconciling work and personal life has been an important issue in Europe in general and in France in particular for many years. Recently it has become a growing concern in France and resulted  in the negotiation of a nation-wide inter-sectoral agreement relating to the quality of working life in 2013. In this context, the issue of flexible working raises, among other things, the question of whether employees benefit from particular rights to request more flexible working organization, i.e. a change in working hours or a request to work from home, on the basis of family-related obligations or, more broadly, personal constraints. The Global Workplace Insider blog has a discussion this week of some of the rules that have been implemented there.  I think it was interesting to see how another country was approaching this vexing issue through legislation.
    Source: Global Workplace Insider
  • EEOC Says Prohibiting Off-Duty Alcohol Consumption by Alcoholic Employees Violates ADA  – Blanket policies prohibiting alcoholic employees from consuming alcohol permanently – whether on-duty or off-duty – violate the Americans with Disabilities Act (ADA), according to the Equal Employment Opportunity Commission (EEOC) in an informal discussion letter dated August 28, 2014. The EEOC rejected such a blanket rule – applied to all alcoholics or individuals perceived to be alcoholics – primarily because no individualized assessment was conducted.  Specifically, the ADA does not permit employers to apply qualification standards that screen out, or tend to screen out, individuals on the basis of disability unless they are job-related for the position in question and consistent with business necessity.
    Source: Drug & Alcohol Testing Law Advisor

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