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Texas is considered an employer-friendly state, so it may come as quite a surprise that several bills that significantly impact sex harassment law passed, without fanfare, in the last legislative session, and go into effect today, September 1, 2021.  More specifically, the legislature amended several sections of Chapter 21 of the Texas Labor Code, which includes the state’s version of Title VII, to be more in line with the laws of California.  Here’s what employers need to know: First, the legislature amended Chapter 21 to provide that with respect to sexual harassment, an “employer” is a person who employs 1…
In what I’ll call its Quantum of Evidence decision issued this month, not to be confused with the 2008 James Bond flick, Quantum of Solace, the Fifth Circuit tackled the issue of the “quantum of evidence required to prove or disprove the existence of an agreement to arbitrate” in the Fifth Circuit.  More specifically, it addressed the appropriate standard for a district court to apply when considering a motion to stay or compel arbitration where the formation of an agreement is disputed. In Gallagher v. Vokey, No. 20-1100 (5th Cir. July 1, 2021), the Court found that the district court…
 At a time when gun violence is increasing across the country, and based on publicly available data, Texas currently ranks second in the nation (behind Illinois) in mass shootings for 2021, the Texas Legislature enacted the Firearm Carry Act of 2021.  Here’s what Texas employers need to know: 1.    The effective date of the new law is September 1, 2021. 2.    The law applies to persons 21 years of age or older and not otherwise prohibited by state or federal law from possessing a firearm, and to those 18 years or older in the military. 3.    Persons…
Can private employers enforce mandatory COVID-19 vaccines as a condition of employment? In December 2020, the EEOC said “yes,” subject to reasonable accommodations for employees with disabilities or sincerely held religious beliefs.   Yesterday, Southern District of Texas Judge Lynn Hughes agreed, dismissing plaintiffs’ lawsuit against Houston Methodist Hospital based on the hospital’s policy requiring mandatory COVID-19 vaccinations for its employees by June 7, 2021.   What is interesting about the Court’s opinion is the approach to the issue.   First, the Court refused to consider vaccine safety and efficacy in adjudicating the issue, stating they were “irrelevant.” Second, and reaffirming Texas’s strong…
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…