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Three recent developments demonstrate that both the United States Department of Justice (DOJ) and courts around the country are continuing to scrutinize employer agreements that in any way restrict employee mobility. First, in January 2021, the Antitrust Division of the DOJ filed its first criminal indictment against two outpatient medical care facilities alleging that as competitors, the two companies engaged in a conspiracy to suppress competition between them by agreeing not to solicit each other’s senior-level employees.  See U.S. v. Surgical Care Affiliates, LLC and SCAI Holdings, LLC, No. 3-21-cr-0011-L, in the United States District Court, Northern District of Texas,…
Last Friday, the Texas Supreme Court, in Aerotek, Inc. v. Boyd et al., No. 20-0290 (Tex. May 28, 2021), reversed the Dallas Court of Appeals and found that an employer conclusively established that four employees signed and therefore consented to arbitration agreements using the employer’s computerized hiring application that required the employees’ digital signatures. Like many employers, Aerotek uses a computerized hiring application for onboarding.  The system automatically sends a welcome email to the successful candidate with a hyperlink to navigate to the hiring application’s online account registration page.  Once there, the candidate creates a unique user ID and password…
According to the plaintiffs in U.S. Pastor Council et al. v. Equal Employment Opportunity Commission, et al., No. 4:18-cv-00824-O, In the United States District Court, Northern District of Texas, Fort Worth Division, who filed a motion for summary judgment on this issue last week, the answer should be yes. In U.S. Pastor, the plaintiffs contend that Bostock’s interpretation of Title VII does not prohibit discrimination against bisexual employees (as opposed to homosexual or transgender employees specifically referenced in Bostock)as long as the employer regards bisexual behavior or orientation as equally unacceptable in a man or woman.  In support of their…
    The Fifth Circuit’s recent opinion in Olivarez v. T-Mobile USA, Incorporated; Broadspire Services, Incorporated, No. 20-20463 (May 14, 2021) is interesting for two reasons.     First, it provides a useful analysis regarding whether, in disparate treatment cases under Title VII or the ADA, a plaintiff must establish all elements of a prima facie case under McDonnell Douglas to survive a Rule 12(b)(6) dismissal.     In Olivarez, the Court, citing to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), said no, but its analysis belies this conclusion.  Under Swierkiewicz, as interpreted by the Fifth Circuit, to avoid a 12(b)(6) dismissal,…
What happens when an employer fails to keep accurate or adequate records of all time worked by an employee? Seventy-five years ago, the United States Supreme Court, in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687 (1946), superseded by statute on other grounds, 29 U.S.C. § 254(a), created a burden-shifting framework for FLSA claims where an employer fails to maintain proper records.  More specifically, in those cases, a plaintiff need only show by “just and reasonable inference” that she was an employee, worked the hours, and wasn’t paid.”  Id.   On February 9, 2021, the Fifth Circuit released its…
In a case of first impression, a federal judge in Massachusetts recently found that the wearing of Black Lives Matter (BLM) masks by employees at work was not protected activity under Title VII of the Civil Rights Act of 1964, as amended (Title VII).   In Frith v. Whole Foods Mkt., Inc., Civil Action No. 20-cv-11358-ADB (D. Mass. Feb. 5, 2021), current and former employees of Whole Foods, which has publicly supported the BLM Movement, sued their employer claiming they were discriminated and retaliated against in violation of Title VII when Whole Foods disciplined them for wearing BLM masks in violation…
In its Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act issued in 2002, which hasn’t yet been withdrawn or updated as a result of the passage of the Americans with Disabilities Act Amendment Act, the Equal Employment Opportunity Commission (EEOC) opines that an employer is generally not required to provide a reasonable accommodation to an employee who violates a conduct rule where the consequence of the violation is the termination of employment. But what happens when an employer denies an employee the reasonable accommodation of a policy modification and then uses that same, underlying policy as…
Starting this coming Tuesday, August 31, 2018, Yelp will post restaurant health inspection scores directly on a restaurant’s Yelp page. Yelp initially launched this program in San Francisco in 2013 and to expand it nationwide, hired a third-party company to trawl  through government websites to find the health inspection reports to post. Texas is among the states with a health inspection score roll-out date in August.  Restaurateurs should review the scores posted by Yelp to ensure they are accurate. …
Restaurant health inspection grades have been available to the public for some time, but in Dallas and Fort Worth, they were difficult to locate in the public health data. In case you missed it, the Dallas Morning News (DMN) has just rolled out a new website located at restaurantinspections.dallasnews.com that includes health inspection grades for restaurants in Dallas, Carrollton, Plano, Richardson, and Fort Worth.  The site includes three main ways to search: (1) by restaurant name; (2) by issue (such as mold or rodents); and (3) by letter grade (A, B, C, D or F).   The DMN reports it hopes to add…
The Fifth Circuit has not yet ruled on the issue of whether transgender status is a protected category under Title VII, but earlier this month, a federal district judge in the Southern District of Texas, Houston Division, assumed that it was.   In Wittmer v. Phillips 66 Company, No. H-17-2188 (S.D. Tex. April 4, 2018), the plaintiff sued Phillips 66 claiming it rescinded her job offer based on her identity as a transgender woman and her failure to conform to female sex stereotypes.    Noting the prohibition against gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989)…