Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

A group of wait staff employees recently filed a lawsuit against Texas Roadhouse, Inc., alleging that it had violated Massachusetts Tips Law and Massachusetts Minimum Wage Law. Ultimately, Texas Roadhouse agreed to settle the putative class action suit for $5 million.

Under Massachusetts Tips Law, only wait staff employees, service employees, or service bartenders are permitted to participate in a tip pool when the tips are used to fulfill minimum wage requirements. Massachusetts law allows an employer to use tips to, in part, fulfill minimum wage requirements for employees who receive at least $20 per month in tips. An employer may pay its employees $2.63 plus tips when the total amount paid is equal to or greater than the state’s $8.00 minimum wage requirement.

In the lawsuit, Crenshaw, et. al, v. Texas Roadhouse, Inc., the plaintiffs alleged that Texas Roadhouse improperly distributed pooled tips to employees who were not wait staff employees, service employees, or service bartenders. As a result of Texas Roadhouse’s alleged improper distribution of pooled tips, the plaintiffs claimed that they were paid less than minimum wage. The plaintiffs argued that because employees other than those who regularly and customarily received tips participated in the tip pool, Texas Roadhouse improperly claimed the tips toward the minimum wage.

 Previous: Age Discrimination: EEOC Sues Texas Roadhouse

Learn more about overtime and other types of wage and hour claims here.

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 Pharmaceuticals corporation Novartis has recently settled a class action lawsuit brought by current and former sales representatives for $99 million dollars.

Read the entire story at our dedicated Overtime Law Blog.

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Houston appellate lawyer Ruth Piller filed a complaint with the Equal Employment Opportunity Commission against her former employer, Houston's Hays, McConn, Rice & Pickering, where she worked for nine years.

In the EEOC complaint, Piller alleges the firm discriminated against her on the basis of her gender and her neurological disorder-related disability; subjected her to a "sexually hostile work environment"; and retaliated against her. Specifically, Piller alleges the firm terminated her in October 2011 and failed to accommodate her disability; members of the firm's management, led by shareholder Staton M. Childers, harassed her with emails that included Photoshopped images of Piller's face on a naked body covered with sushi and on a body in a men's room holding a tape measure as an unidentified man uses a urinal. 

Her complaint reads in part:

"Hays McConn, through its male management committee, instituted, nurtured, and encouraged a culture among its male attorneys of exposing female partners and associates alike to a systematic, long-term, sexually hostile, gender degrading culture designed to remind and enforce the idea among its female lawyers that Hays, McConn is a men's club and the women are second-class citizens," 

Read the complaint here.

Read the full article at Law.com.

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According to a report in the Sioux City journal, a federal jury in Sioux City has awarded a woman nearly $900,000 for sexual harassment and retaliation by her former employer.

Following a 7-day trial, Jurors on Wednesday found that Mindy Gilster had been sexually harassed by her supervisor and was subjected to retaliation as a result of filing complaints and her lawsuit against her employer.  Gilster alleged that her supervisor harassed her by making inappropriate comments about her appearance, pressing his body against her on one occasion and propositioning her.  She alleged that following her complaints, she was given a poor job review and denied a raise before she was fired in February 2011.

The jury award includes $600,000 in punitive damages, $240,000 for past and future emotional distress and $30,150 in back pay and medical expenses.

Read more here. 

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CBS News reports that we may have "a new leader in the Boss From Hell Derby."  A Long Island woman has filed papers claiming she was fired after donating a kidney for her boss.

Last August, according to papers filed with the New York State Division of Human Rights, Deborah Stevens was working as an assistant to an executive at the Atlantic Automotive Group, which owns and operates car dealerships on Long Island. Her boss, Jaqueline Brucia, needed a new kidney.
 

You can read her complaint here.

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 Texas' unemployment rate dipped to 7 percent in March as hotels and restaurants increased hiring.

The Texas Workforce Commission announced Friday that the state added 10,900 jobs in March. A downward revision in the number of jobs created in February, though, boosted March's results. The state originally reported payrolls grew by 27,900 jobs in February, but now says a net 19,900 jobs were created — a reduction of 8,000 jobs.

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Earlier this year the Fifth Circuit issued an important decision on the issue of whether an arbitration agreement that a single party can retroactively modify or terminate is illusory and invalid in Carey v. 24 Hour Fitness USA, Inc. A unanimous court allowed a proposed overtime class action against 24 Hour Fitness USA Inc. to go forward, holding that such an agreement is indeed invalid and, therefore, unenforceable.

Click through to read the entire article and see the opinion.

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Last week Facebook issued a statement stating that they have seen an increasing number of employers attempting to force their way onto employees' Facebook accounts by demanding employees turn over their passwords as a condition of employment.  The company's Chief Privacy Officer, Erin Egan, issued the statement: 

In recent months, we've seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people's Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user's friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.

Heavy handed tactics like this by employers put employees in a difficult position.  Complying with an employer's request to turn over his or her password violates Facebook's terms of service and opens up their private communications to any number of company personnel unknown to them.  Failure to do so likely means they will not get the job they are applying for or may lose their current job.  Currently such activity by employers is likely legal in most states...at least for now.  

Connecticut Sen. Richard Blumenthal announced last week that he's going to propose legislation to ban employers from requesting access to Facebook accounts as a term of employment.

I think this is really just the tip of the iceberg.  Get ready to hear some version of this story every week or so for the next 10 years.  We are all feeling our way through this brave new world of social media and personal privacy.  Frankly, it is a little fuzzy to know exactly where the lines are or will be or should be.

That being said, I think it is a pretty creepy and inappropriate overreach for employers to force employees to give up any normal amount of online privacy in order to get a job.  This is a bad idea for many reasons. First, it makes the employer look like a heavy-handed thug.  Secondly, it could be argued that the employer is now on notice or constructive notice of everything on every employees' Facebook page. Couple of possible examples:

• What if a female employee posts something on her Facebook page indicating that she is having trouble with her boss and his wandering hands only to be fired the following week?  She files a lawsuit for harassment and retaliation, arguing that while she never complained to HR the company surely knew of the conduct of her boss because they have full access to her Facebook account; or
• What if an employee who goes off the deep end commits violence in the workplace posted something the month before on his or her Facebook account that arguably should have been a warning that such conduct was likely? Might the company now be held liable for having had access to such information but never acting on it to protect its employees?

Being in possession of all employees' Facebook data puts a company in the position of having to argue and prove that it really didn't know what was posted and that it didn't have a duty to know.  This is not someplace an employer should want to put themselves voluntarily.  There is a saying that with great power comes great responsibility.  Employers might do well to consider their responsibility if they choose to exercise this much power over the private information of employees.

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The U.S. Equal Employment Opportunity Commission (EEOC) today issued two revised publications addressing veterans with disabilities and the Americans with Disabilities Act (ADA). Both documents are available on the agency’s website at www.eeoc.gov.

The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood -- such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.] 

The revised documents are also an outgrowth of a public meeting the EEOC held on Nov. 16, 2011 entitled “Overcoming Barriers to the Employment of Veterans with Disabilities.” In that meeting, the Commission heard testimony from a panel of experts on the unique needs of veterans with disabilities transitioning to civilian employment.  The particular challenges faced by veterans with disabilities in obtaining employment has been the subject of increased attention in recent months, as large numbers of veterans return from service in Iraq and Afghanistan.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

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