On February 8, 2024, the U.S. Supreme Court issued a unanimous opinion holding that a whistleblower with a retaliation claim under the Sarbanes-Oxley Act of 2002 (“SOX”) does not need to establish that their employer acted with “retaliatory intent” to succeed on their claim. An employee must merely show that their protected whistleblowing activity was a “contributing factor” in an adverse employment action against them by their employer. Murray v. UBS Securities, LLC, 144 S.Ct. 445 (2024). An employer’s retaliatory intent or lack of animosity is “irrelevant.” Id. at 446.
Continue Reading SCOTUS Holding Reinforces Employee-Friendly SOX Whistleblower Burden

The Texas Supreme Court has issued an opinion holding that “third-party testing entities hired by an employer do not owe a common-law negligence duty to their clients’ employees.” Houston Area Safety Council, Inc. v. Mendez, 671 S.W.3d 580, 590 (Tex. 2023) (“Mendez”). In a positive development for employers that drug test their employees, the Mendez opinion also supports prior Texas Supreme Court precedent that employers who conduct in-house drug testing do not owe a duty to employees. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. 2003) (“Solomon”). In other words, it logically follows that if an employer does not owe a duty to employees for results of drug tests administered in-house, a third-party tester hired by that employer does not owe a legal duty to employees for drug tests.
Continue Reading Third-Party Drug-Testers—Not Just Employers—Owe no Duty to Employees

A recent opinion out of the Texas 14th Court of Appeals has raised the bar for employers trying to enforce arbitration agreements electronically signed by employees. See Houston ANUSA, LLC d/b/a AutoNation USA Houston v. Shattenkirk, No. 14-20-00446-CV, 2023 WL 5437714 (Tex. App.—Houston [14th Dist.] Aug. 24, 2023, no pet. h.).
Continue Reading Employee E-Signatures in Arbitration Agreements Under Scrutiny

In Hamilton v. Dallas County, 2020 U.S. Dist. LEXIS 223831, 2020 WL 7047055, at *2 (N.D. Tex. Dec. 1, 2020), a federal district court judge dismissed a lawsuit by female Dallas County detention officers alleging that a gender-based decision related to weekend work schedules violated Title VII of the Civil Rights Act of 1964. At the root of that case was the fact that, although male and female officers received the same number of days off during a workweek, only male officers were permitted to take both weekend days off. The female officers complained about the scheduling policy, but the County maintained the policy, citing safety concerns.
Continue Reading The Fifth Circuit Mulls “Ultimate Employment Decision” Rule Under Title VII

Last Thursday, the U.S. Department of Labor (“DOL”) published in the Federal Register its newly-proposed rule regarding independent contractor vs. employee classification under the Fair Labor Standards Act (“FLSA” or the “Act”).  Businesses have anticipated the release of this proposed rule from the Biden administration’s DOL since the DOL withdrew a more employer-friendly, Trump-era independent contractor rule in May 2021 that had not yet gone into effect.Continue Reading DOL Proposes Updates to Independent Contractor Requirements

On December 6, 2021, New York City Mayor Bill de Blasio surprised employers by announcing on MSNBC’s “Morning Joe” that, starting December 27, NYC will mandate vaccines for all private-sector workers.  The mandate is expected to affect around 184,000 employers.
Continue Reading NYC Mandates Vaccines for All Private-Sector Workers, But Will it Stick?

Most employers know the Fair Labor Standards Act requires employees to be paid time-and-one-half for all hours worked over 40 in a workweek unless an exemption applies.  But what some employers don’t realize is, for the most-commonly-used overtime exemptions to apply, employees must not only satisfy various “duties” tests, but they must also be paid on a “salary basis” at not less than $684 per week.  Payment on a salary basis means an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis.
Continue Reading Upcoming Fifth Circuit Hearing to Address FLSA Day-Rate Issues

In recent years, there has been a growing trend amongst litigants of protecting documents filed as part of the judicial record from public view by sealing them by agreement under a protective order.  However, a recent opinion out of the U.S. Court of Appeals for the Fifth Circuit criticizes this now-common practice. 
Continue Reading The Fifth Circuit Criticizes the Practice of Sealing Documents by Agreement

Since taking office, President Biden has issued Executive Orders covering topics from climate change to mask mandates.  Some of these new Executive Orders are aimed at eliminating discrimination and promoting equity at the federal level.  These directives will likely result in new requirements for private sector companies that are government contractors or subcontractors, and could require them to revise practices and policies in order to keep, or procure new, government contracts.
Continue Reading Executive Orders Impact Federal Agencies and Government Contractors