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Total Articles: 101

Texas Stay Home Orders: A State and Local Update

On March 31, 2020, Texas Governor Greg Abbott issued Executive Order No. GA-14 relating to statewide continuity of essential services and activities during the COVID-19 crisis. “Essential services” is defined as everything listed by the U.S. Department of Homeland Security in its Guidance on the Essential Critical Infrastructure Workforce, Version 2.0, plus certain religious services. Other essential services may be added to this list with the approval of the Texas Division of Emergency Management (TDEM), which maintains an online list of essential services.

Knowing the Way to San Jose's Emergency Paid Sick Leave Ordinance

On April 7, 2020, the San Jose, California City Council adopted two essentially identical ordinances that require covered employers to provide emergency paid sick leave. The first item is an emergency ordinance that takes effect immediately, whereas the second item is a regular ordinance for which a second reading must occur. Based on comments made at the city council’s meeting, the city council's logic is, should a legal challenge to the urgency ordinance occur, there would be a solid legal foundation for the regular ordinance. Both ordinances will sunset on December 31, 2020. As with other local ordinances enacted in Los Angeles and San Francisco, employers will not receive any tax credits or monetary relief for providing this additional benefit.

Dallas Paid Sick Leave Ordinance is Enjoined

In a long-awaited and much-anticipated decision, the federal court overseeing a legal challenge to the City of Dallas’s paid sick leave ordinance entered a preliminary injunction preventing the city from enforcing the ordinance during the pendency of the litigation.

Six More Texas Counties Join Dallas County by Implementing Shelter in Place Orders

Summary: After Dallas County took the lead on Monday, March 23, by implementing a “shelter-in-place” order, other Texas counties quickly followed suit to take action to help stop the spread of COVID-19. Collin, Denton, Fort Bend, Galveston, Harris, and Tarrant counties have all implemented shelter-in-place orders to take effect at midnight on March 24, 2020 (Denton County’s order will take effect at midnight on March 25, 2020), and all will remain in effect as stated, or until either rescinded, superseded, or amended. Dallas County also issued an amendment to its “Stay Home Stay Safe” order setting forth specific enforcement provisions, providing that a violation of the order may be punishable through criminal or civil enforcement (a misdemeanor punishable by a fine not to exceed $1,000 and/or confinement in jail for a term not to exceed 180 days). Please see our March 23 Alert for more information on the Dallas County Order.

Breaking Rank: Collin County, Texas Issues “All Businesses Are Essential” Order

On March 24, 2020, Collin County, Texas Judge Chris Hill issued the county’s widely anticipated “stay-at-home” order (Order) in response to the COVID-19 pandemic, making it one of 21 Texas counties or cities that have issued, or will be issuing, an order of this type to date.

Dallas County Issues First Shelter-in-Home Order in Texas

In an effort to battle the COVID-19 pandemic, Dallas County Judge Clay Jenkins, pursuant to Texas Government Code Section 418.108, has issued a stay-at-home Order that takes effect at 11:59 p.m. on March 23, 2020, and continues until at least 11:59 p.m. April 3, 2020.

Dallas County, Texas Issues “Stay Home Stay Safe” Order, Effective March 23

On March 22, 2020, Dallas County Judge Clay Jenkins issued a “shelter in place” order (“Order”), available here, for individuals residing in Dallas County, Texas, effective as of 11:59 p.m. on March 23, 2020, and continuing until 11:59 p.m. on April 3, 2020. The owner, manager, or operator of any facility or business that is likely to be impacted by the Order is strongly encouraged to post a copy of the Order onsite and to provide a copy to any member of the public requesting one.

Judge Issues Temporary Injunction Blocking Implementation of San Antonio’s Sick and Safety Leave Law

The City of San Antonio’s Sick and Safe Leave ordinance has been enjoined. The ordinance was originally scheduled to go into effect on August 1, 2019, but on July 24, 2019, a Texas state court delayed implementation until December 1, 2019, pending a ruling on a motion for temporary injunction filed by business groups and the state.

Texas Paid Sick Leave Update: San Antonio, Dallas, Austin

The state of city-driven efforts to pass paid sick and safe leave laws in Texas remains in flux. Those monitoring the issue will know the cities of Austin, Dallas, and San Antonio have passed paid sick and safe leave laws, with business coalitions in each city mounting legal challenges. As a result of the uncertainty caused by these legal challenges, the fate of these laws in Texas generally and in the respective cities remains an issue to watch.

San Antonio Paid Sick Leave Ordinance Will Not Go Into Effect December 1

A Bexar County judge just allowed San Antonio employers to enjoy their Thanksgiving holiday a little bit more. Bexar County District Court Judge Peter Sakai advised all counsel on Friday that he is granting the requested temporary injunction in a lawsuit challenging the now-named San Antonio Safe and Sick Time ordinance. He has asked the parties to come to an agreement on the language of the order and agree to a trial date. This ruling means that employers are not yet required to comply with the ordinance, which was scheduled to go into effect December 1, 2019.

Texas Judge Temporarily Enjoins San Antonio Paid Sick & Safe Leave Ordinance

A Texas state court judge's letter ruling temporarily enjoins San Antonio's paid sick and safe leave ordinance from taking effect on December 1, 2019. While the November 22, 2019 ruling says a trial on the merits will occur "as soon as possible," it does not set a trial date.

Court Blocks San Antonio Paid Sick Leave Law

Mere days before San Antonio’s Sick and Safe Leave ordinance was set to go into effect, the law was once again put on hold. In a ruling today, Bexar County Judge Peter Sakai temporarily delayed the start of the paid leave ordinance, which was set to take effect on December 1.

Amendments to San Antonio’s Paid Sick Leave Ordinance—and Related Developments Affecting the Lone Star State

Recently the San Antonio City Council approved major changes to the city’s paid sick and safe leave ordinance. San Antonio’s ordinance was scheduled to take effect August 1, 2019.

San Antonio Approves New Paid Sick Leave Ordinance Effective December 1, 2019

Executive Summary: As we have mentioned in our previous Legal Alert, the effective date of San Antonio’s paid sick leave ordinance was delayed until December 1, 2019, by agreement after a lawsuit was filed against the city. At the time, the city indicated that one of the reasons for this agreed delay was so that the city could revise the ordinance. Earlier this month, San Antonio’s City Council passed the now-called Sick and Safe Leave Benefits ordinance which, barring any legal action or a decision from the Texas Supreme Court, will go into effect December 1, 2019. Some key changes include:

San Antonio City Council Approves Changes to Paid Sick Leave Ordinance

In response to a lawsuit filed by a number of San Antonio business groups, the San Antonio City Council approved certain revisions to the city’s paid sick leave (PSL) ordinance, including renaming it the Sick and Safe Leave (SSL) ordinance. The SSL ordinance is scheduled to become effective on December 1, 2019.

Texas’ Anti-SLAPP Regime Does Not Apply in Federal Diversity Cases, Says the Fifth Circuit

A recent decision from the Fifth Circuit Court of Appeals in Klocke v. Watson, No. 17-11320 (August 23, 2019), appears to have answered a perennial jurisdictional question that had split federal district courts in Texas for several years: Are motions to dismiss pursuant to the Texas Citizens Participation Act (TCPA) allowed in federal court? According to the opinion handed down by a three-member panel of the Fifth Circuit, the answer, apparently, is no.

FAQs on Paid Sick Leave in Dallas and San Antonio

Paid sick leave ordinances in Dallas, Texas and San Antonio, Texas will take effect for most employers on August 1, 2019. Join Larry Smith and Tiffany Cox Stacy as they help employers prepare by answering some frequently asked questions about these ordinances.

Lawsuit Challenges Dallas Paid Sick Leave Ordinance

On July 30, 2019, a lawsuit was filed in the U.S. District Court for the Eastern District of Texas seeking to enjoin the City of Dallas’s paid sick leave ordinance, which is set to take effect on August 1, 2019. The lawsuit, filed by the Texas Public Policy Foundation on behalf of two Collin County, Texas, employers, alleges that the ordinance impermissibly creates a distinction between union and nonunion employers by allowing only unionized employers to modify the annual accrual cap required by the ordinance.

City of Dallas Sued Over Paid Sick Leave Ordinance

Two days before the Dallas paid sick leave ordinance goes into effect, two companies filed suit against the City challenging the ordinance. Attorneys with the Texas Public Policy Foundation, which represents these companies in the lawsuit, sent the City a letter last week, demanding that the City of Dallas follow San Antonio’s lead and delay the implementation of its almost identical ordinance until December 1. In a twist, the lawsuit was filed in the U.S. District Court for the Eastern District of Texas, Sherman Division. The plaintiffs are Collin County employers who are allegedly impacted by the ordinance because they have Dallas employees covered by the ordinance.

Dallas Paid Sick Leave Ordinance Faces Legal Challenge

Today two plaintiffs represented by the Texas Public Policy Foundation filed a lawsuit challenging the Dallas paid sick and safe leave ordinance, which is scheduled to go into effect on August 1. It remains to be determined whether the implementation date will be officially delayed – either through a preliminary injunction or by agreement. The lawsuit is pending in the Eastern District of Texas, Sherman Division. For more information on the status of paid sick leave in Texas, see our recent blog post.

Moving Targets: (Possible) Delays to Texas Paid Sick Leave Ordinances

Even though it is less than 10 days before paid sick and safe time (PSST) ordinances in Dallas and San Antonio are/were scheduled to take effect, developments regarding the status of these ordinances are changing daily. These fast-paced changes have rendered the laws moving targets, and have left businesses and others affected by the laws scrambling to keep up with their attendant legal obligations.

San Antonio Paid Sick Leave Ordinance Delayed

On July 24, 2019, a Bexar County district court judge entered an order delaying the implementation of the San Antonio paid sick leave (PSL) ordinance from its current August 1, 2019 date to December 1, 2019. The order represented a compromise between the City of San Antonio and a coalition of San Antonio business groups that filed suit against the city on July 15.

BREAKING: San Antonio Postpones Its Paid Sick Leave Ordinance and Legal Challenge to Dallas' Law Imminent

In response to the lawsuit filed against the City of San Antonio regarding its paid sick leave ordinance, the City of San Antonio has agreed to postpone implementation of the ordinance until December 1, 2019. A Bexar County judge signed the agreed order on July 24, 2019. Accordingly, employers with San Antonio employees have been given a few months before they must enact paid sick leave policies for San Antonio employees (subject to any decision by the Texas Supreme Court on this issue).

San Antonio May Delay Paid Sick Leave Implementation to December 1; Dallas Remains on Track for August 1 and Issues Rules

They say everything is bigger in Texas and the controversy surrounding paid sick leave is no exception. With less than two weeks before the effective date of two paid sick leave laws in Texas, here is a quick scorecard on where these laws stand:

Business Groups Sue to Stop San Antonio Paid Sick Leave Ordinance

On Monday, July 15, the Associated Builders & Contractors of South Texas, joined by several other business groups, filed suit against the City of San Antonio seeking to block the implementation of the Paid Sick Leave ordinance set to go into effect, for most businesses, on August 1, 2019. The lawsuit alleges, like the Austin case pending in the Texas Supreme Court, that the ordinance violates the Texas Minimum Wage Act. An injunction hearing is set for July 24, 2019, at 9 a.m. If the court issues the injunction, the San Antonio ordinance will likely be put on hold while this continues to work its way through the courts.

Texas Legislative Roundup: New Laws Impacting Employers

The Texas Legislature’s 86th session adjourned on May 27, 2019, and there is little likelihood that the governor will call a special session. The legislature primarily focused on educational reforms this year. Regarding employment matters, most observers expected the legislature to adopt laws preempting any attempt by municipalities to pass paid sick leave laws. While the legislature failed to pass any such law, they did pass other laws impacting the employer-employee relationship. Below is a list of those new laws.

Paid Sick Leave in Dallas and San Antonio Effective August 1

Municipal ordinances mandating that employers provide paid sick leave to employees in Dallas and San Antonio will take effect as scheduled on August 1, 2019.

San Antonio Issues FAQs Regarding Paid Sick Leave Ordinance

As discussed in our June 20, 2019 Alert, although the state of Texas does not require employers to provide employees with paid sick leave, the cities of Dallas, San Antonio and Austin have all recently passed ordinances which would require almost all employers with employees who work in those cities to provide paid sick leave to those employees. To provide guidance to employers, San Antonio has recently created a FAQ document about its ordinance. It can be found here. The city’s Metropolitan Health District will not be assessing penalties for violations, except in cases of retaliation, until April 1, 2020. From August 1, 2019 until April 1, 2020, the District will be focusing on educational compliance.

Texas Paid Sick Leave Ordinances in State of Confusion - What Are Employers to Do?

Executive Summary: Texas does not require private employers to provide paid sick leave to any employee. However, three major Texas cities – Dallas, San Antonio and Austin – have all recently passed ordinances which would require almost all employers with employees who work in those cities to provide paid sick leave to those employees. It was thought that the Texas Legislature would pass legislation that would prohibit these ordinances from existing in the first place. The legislative session ended, however, with no such legislation making its way to Governor Abbott’s desk after a disagreement arose over whether city ordinances prohibiting discrimination on LGBTQ status should be included in this prohibition. With the Austin ordinance declared unconstitutional by the Austin Court of Appeals and the Dallas and San Antonio ordinances scheduled to take effect on August 1, 2019, Texas employers are left wondering what to do about implementing paid sick leave for Dallas and San Antonio employees. This legal alert will provide employers an update on the current state of these ordinance and possible next steps.

Get Ready, Texas: Paid Sick Leave May Soon Be On Its Way

Employers in Dallas and San Antonio are on the verge of having to provide your workers with paid sick leave – and these new city ordinances are set to go into effect in the next few weeks. When the legislative session came to a close on May 27, the state legislature had failed to pass a bill that would have banned municipal paid sick leave ordinances such as the ones passed in Austin, Dallas, and San Antonio in 2018 despite Texas employers’ high hopes.

Texas Paid Sick Leave Question of the Hour: What do Employers do Now?

Just when Texas employers were about to breathe a sigh of relief, believing a reprieve from mandatory compliance with three separate municipal paid sick leave ordinances was on its way, the Texas Legislature failed to pass a seemingly well-supported bill to preempt all such ordinances from taking effect and being enforced. Now paid sick leave ordinances in San Antonio and Dallas are scheduled to take effect on August 1, 2019. With open questions remaining, employers are left to decide how and when to comply.

Sweeping Privacy Changes Stall in the Lone Star State

Per our earlier blog post, Texas was ambitious this legislative session when it proposed two consumer data privacy bills. Both bills made it through committee hearings, but only one made it to the governor’s desk for signature: HB 4390. However, even it arrived there very different than originally drafted.

Paid Sick Leave in San Antonio and Dallas: Answers to Your Frequently Asked Questions

Despite broad-based support, the Texas Legislature failed to pass a law preempting the type of paid sick leave ordinances enacted in Austin, San Antonio, and most recently Dallas before the end of its regular session on May 27, 2019. While a Texas court of appeal enjoined implementation of Austin’s paid sick leave ordinance and later ruled it unconstitutional, no litigation has been filed concerning the San Antonio and Dallas ordinances. Accordingly, companies with employees in San Antonio and Dallas may want to review their current policies to ensure compliance with these ordinances, both of which will take effect for most employers on August 1, 2019. (Employers with five or fewer employees have until August 1, 2021, to comply.)

Texas Paid Sick Leave: Dallas and San Antonio Employers Should be Prepared for Paid Sick Leave Laws by August 1 Absent Prompt Legislative or Court Intervention

Although there is no Texas state-wide law that requires paid sick leave in Texas, the cities of Austin, Dallas, and San Antonio have adopted paid sick and safe leave laws. Proposed legislation that would have blocked these laws from going into effect was introduced during the most recent Texas legislative session. However, as of late last week, as the regular Texas legislative session winds down, these efforts appear to be stalled, perhaps indefinitely. Options for legislative action to block the city-driven leave laws from going into effect are theoretically possible, but the practical chances of happening would require much to fall in place (e.g, passage in special session).

Amendments Would Add Clarity To Texas Anti-SLAPP Law

Significant changes to the Texas Citizens Participation Act, or TCPA, are on the horizon. Among other things, if signed into law by the governor, the amendments to the TCPA found in House Bill 2730 may provide some new statutory construction arguments to parties who believe the statute should be more narrowly construed to focus on the protection of freedom of speech and association that involve matters of public concern, akin to similar laws in other jurisdictions.

Dallas Joins the Fray – Will Paid Sick Leave Prevail in Texas?

Over the next several months, the fate of local paid sick leave laws may well be decided by the Texas legislature. But while lawmakers continue to debate whether Texas cities should be prohibited from establishing their own paid sick time mandates, efforts to expand their reach are marching forward. Last week, the City of Dallas boldly entered the fray.

Dallas’s Earned Paid Sick Time Ordinance: What Employers Need to Know

On April 24, 2019, the Dallas City Council passed an ordinance requiring employers to provide paid sick leave beginning as early as August 1, 2019. Dallas is the third Texas city (after Austin and San Antonio) to pass such an ordinance. The likelihood of the new Dallas ordinance taking effect remains to be seen, as it may be challenged in court—as was the case in Austin—and Texas legislators are working to pass a bill that would prohibit these sorts of local ordinances.

Dallas Passes City Ordinance Mandating Paid Sick Leave

On April 24, 2019, the Dallas City Council passed a paid sick leave ordinance by a vote of 10-4. This vote comes several months after a petition to get this issue on the November 2018 ballot failed when the city secretary declared there were not enough valid signatures for the issue to make the ballot.

Everything’s (Gig)ger in Texas: New State Law Classifies Gig Workers As Contractors

The confusion surrounding worker classification is not a new topic for any gig economy employer. Whether gig workers are classified as employees or independent contractors is a constant battle businesses face both in the legislature and the judiciary. But independent contractor classification may have just gotten a little simpler in Texas thanks to the Texas Workforce Commission.

Texas Committee Advances Bill to Prevent Municipalities From Enacting Employment Leave Ordinances

In 2018, the city councils in both Austin and San Antonio passed ordinances to require employers to provide paid sick leave to employees. The ordinances have faced legal challenges, including a ruling in November 2018 that the Austin law is unconstitutional due to preemption by the Texas Minimum Wage Act. Neither ordinance has taken effect to date. Now the state senate has taken up the matter.

Texas Workforce Commission Issues Proposed Rules Excluding Certain Gig Workers From the Definition of “Employment” Under Texas Unemployment Laws

The issue of whether workers who utilize online digital platforms to obtain business and deliver services to third parties are employees or independent contractors has already been subject to much debate and litigation. In the growing gig economy, questions surrounding these issues can create uncertainty for both businesses and gig workers.

Proposed Texas Marijuana Laws Might Impact Workplaces In 2019

Texas has maintained its reputation as being a conservative state despite the results of the 2018 midterm elections. But, as the surprisingly close Texas Senate election suggests, things may be a-changin’—especially when it comes to legalizing marijuana use on a medical or recreational basis. While Texas may not be a “blue” state—or even a purple one—voters’ electoral preferences and state legislators’ priorities suggest things might be loosening up a bit in the Lone Star State with regard to marijuana use. What does this mean for Texas workplaces in 2019?

Texas Employers Take Notice: Proposed Bills For 2019

The Texas Legislature does not officially convene until Jan. 8, 2019. But during the week of Nov. 12, Texas lawmakers got off to a furious start and submitted more than 600 bills to be considered during the 2019 legislative session. In the 2017 session, Texas legislators filed more than 10,000 bills and resolutions, of which approximately 10 percent became law. If 2017 is any indication, these early submissions are only a taste of the thousands of bills sure to be filed ahead of the March 8, 2019, bill-submission deadline. Many of the bills affect the workplace and carry the potential to significantly alter the landscape for both Texas employers and their employees. As such, it is critical that employers and their lawyers keep up to date with proposed legislation so they are not ambushed by new laws that may significantly affect the workplace.

Texas Court of Appeals Rules Austin’s Paid Sick Leave Ordinance Unconstitutional

On November 16, 2018, the Third Court of Appeals in Austin, Texas, entered a temporary injunction blocking the implementation of the paid sick leave ordinance that the Austin City Council passed in February 2018. The court of appeals ruled that the ordinance violated the Texas Constitution because it is preempted by the Texas Minimum Wage Act (TMWA).

Austin Paid Sick and Safe Leave Law Preempted by Texas Minimum Wage Act, Third Court of Appeals Holds

On November 16, 2018, the Austin-based 3rd Court of Appeals declared Austin’s paid sick and safe leave ordinance unconstitutional. Specifically, the court held the ordinance is preempted by the Texas Minimum Wage Act and is, therefore, unconstitutional.

Austin's Third Court of Appeals Holds Austin's Paid Sick Leave Ordinance Unconstitutional

Austin’s paid sick leave ordinance, which was supposed to go into effect this past October, has been held unconstitutional by the Third Court of Appeals in Austin. The court of appeals held that the ordinance establishes a “wage” and, as such, it is preempted by Texas Minimum Wage Act. The Texas Minimum Wage Act specifically precludes municipalities from regulating the wages paid by employers who are subject to the Fair Labor Standards Act (FLSA) and specifically provides that the Texas Minimum Wage Act supersedes a “wage” established in an ordinance governing wages in private employment. The court of appeals remanded the case back to the district court, instructing the lower court to grant the State’s application for temporary injunction and for further proceedings consistent with its ruling.

Austin, Texas Earned Sick Time Ordinance on Life Support

On November 16, 2018, the Texas Third Court of Appeals delivered a significant blow to Austin's Earned Sick Time Ordinance, the first law in the Lone Star State that would have required private sector employers to provide employees with paid time off. While the measure is not completely dead, its prospects of survival have dimmed.

Texas Two-Step: San Antonio Joins Austin in Mandating Paid Sick and Safe Leave; Then Court Enjoins Austin Law from Taking Effect During Appeal

On August 16, 2018, the San Antonio City Council adopted a paid sick and safe leave ordinance which, aside from minor linguistic differences, is identical to the ordinance passed earlier this year in Austin. The next day, the Texas Court of Appeals, Third District, issued an order that temporarily enjoins Austin’s ordinance from taking effect until the appeal is resolved. This article first discusses the Austin appeal and the impact it—or anticipated state legislative action—could have, including on San Antonio’s ordinance. The article then outlines what employers with San Antonio operations need to know about the new ordinance should it eventually take effect.

San Antonio Mandates Paid Leave for Private Sector Employees: 14 Key Facts About the New Law

On August 16, 2018, the San Antonio City Council voted 9 to 2 to adopt a paid leave ordinance which will require all employers in San Antonio to provide paid leave to their employees. The ordinance requires employers to provide paid leave to be used for specified reasons for employees’ and their family members’ health-related issues.

Texas Court Bars Employment Claims Due to Ecclesiastical Abstention Doctrine

The ecclesiastical abstention doctrine can provide religious institutions with protection from employment-related lawsuits. Based upon the religious freedom amendments contained in the U.S. and Texas constitutions, this doctrine generally bars courts from adjudicating disputes related to the governance and operations of religious institutions. As seen in a recent decision by the Court of Appeals for the Fifth District of Texas, the ecclesiastical abstention doctrine can provide protection to seemingly ordinary employment decisions by religious entities.

Well-Documented Investigation and Carefully Written Policies Give Win to School District Against Discrimination, Retaliation Claims

Following nearly 10 days of witness testimony, a jury in Denton, Texas, has ruled in favor of the Denton Independent School District (ISD), and rejected an ISD para-professional’s claim that he was fired in retaliation for complaining about discrimination.

Austin, Texas Mandates Paid Sick Leave

The city of Austin, Texas has become the first Southern city to require virtually all private employers to offer paid sick leave to employees working within Austin’s city limits. This new ordinance goes into effect October 1, 2018, for employers with more than five employees. It goes into effect for employers five or fewer employees (not including family members) on October 1, 2020.

Does Anything Good Happen After Midnight? Austin, Texas Adopts Paid Sick Leave

At approximately 1:00 a.m. CST on February 16, 2018, the Austin, Texas City Council approved an ordinance establishing a paid sick leave requirement that will apply to all private employers located within the City. If, as expected, the mayor signs the ordinance, Austin will join the growing list of cities and states obligating employers to grant paid sick time to workers.

Austin’s Earned Sick Time Ordinance: 8 Things You Need to Know

In the early hours of February 16, 2018, the Austin City Council passed a new ordinance on earned sick time that affects employers in Austin, Texas. The ordinance will not take effect until October 1, 2018, and is likely to be challenged in court almost immediately.

New Texas Laws Taking Effect September 1, 2017

Though employment issues were not the focus of the 85th Regular and Special Legislative Sessions of the Texas Legislature, Texas employers should be aware of a handful of new Texas laws which take effect September 1, 2017.

Texas Passes Ban on Texting While Driving

On June 6, 2017, Texas became the 47th state to enact a state-wide ban on texting while driving. The new law (HR 62) prohibits drivers from reading, writing or sending electronic messages unless the vehicle is stopped. It does not, however, prohibit dialing a number to call someone, setting a GPS device, listening to music programs or even surfing on the Internet.

Texas Amends its Uniform Trade Secrets Act

Last month, Texas’s legislature amended the Texas Uniform Trade Secrets Act (TUTSA). These amendments expand and clarify TUTSA’s definitions, add a clarification to enjoining trade secrets misappropriation, and codify a balancing test to determine whether to exclude people from a courtroom when trade secrets are discussed. The amended TUTSA:

Texas Two-Step: Gig Businesses In The Lone Star State Get Two Pieces Of Good News

Gig economy companies in Texas were on the receiving end of two pieces of good news in the last several weeks. Most recently, the state legislature passed and the governor signed into law a bill that will all but assure ride-sharing companies that their workers will be classified as independent contractors and not subject to costly misclassification cases. As my Dallas partner Art Lambert wrote in a legal alert from earlier this week, H.B. 100 ensures that any driver working for a transportation network company (TNC), defined as any entity using a digital network to connect a rider to a driver to provide prearranged rides, is properly classified as an independent contractor as long as long as four simple requirements are met:

Enjoy The Ride! Texas Ride-Sharing Businesses Can Now Escape Misclassification Battles

Texas Governor Greg Abbott just signed into law a measure that will regulate ride-sharing companies (H.B. 100) by establishing a consistent statewide framework to govern such businesses. The good news for ride-sharing businesses: by following some very simple steps, you can avoid costly misclassification lawsuits by ensuring your workers are classified as independent contractors. The law was effective as of the date of signing – May 29 – and overruled all local ordinances in Texas that had previously regulated ride-sharing businesses.

Chapter 21 of the Texas Labor Code Does Not Incorporate ADA’s Prohibition on Release of Confidential Health Information

Texas courts interpreting Chapter 21 of the Texas Labor Code generally attempt to interpret it consistently with federal anti-discrimination laws and frequently look to federal court decisions for guidance. However, differences do exist between Texas and federal anti-discrimination laws. One recent case explored the differences between Chapter 21 and the Americans with Disabilities Act (ADA) related to claims for release of confidential health information. El Paso County, Texas v. Vasquez, No. 05-15-00086-CV (May 5, 2016).

Texas Pre-Suit Discovery – Obligations Under Unusual Procedure Clarified

Although most employers are very familiar with the usual discovery process of litigation, they may not be as familiar with the Texas Rules of Civil Procedure’s Rule 202, which concerns pre-suit depositions.

Texas' Pending LGBT-Related Legislation: What it Means for Employers

Executive Summary: Issues pertaining to LGBT rights have been a focal point of public debate and discourse for several years, but since the U.S. Supreme Court’s decision in Obergefell v. Hodges, these issues increasingly have also been the focus of legislative action. While many states have implemented additional protections for LGBT people, the Texas legislature has gone in the opposite direction, introducing a “bathroom bill” aimed at transgender people, as well as numerous other “religious freedom” bills that some view as potentially permitting discrimination against those who are LGBT. Below is an overview of the state of LGBT rights and legislation in Texas.

Will Austin Come Crawling Back To Uber And Lyft?

The sharing economy has become so entrenched in our vocabulary and culture, it’s hard to remember when exactly the romance began. For Uber, the story started on a “snowy Paris evening in 2008” when two tech dudes had trouble convincing a chauffeur de taxi to rescue them from the elements. And thusly the biggest of the ride-sharing giants was born in 2009. Way back when, it wasn’t 50 Shades of late-model Nissan Sentra—it was all black Lincoln Town Cars, all day long.

Texas' Secret Weapon To Keep Ex-Employees Honest

Texas employers may be missing out on a little-known strategy that can prove highly effective when dealing with noncompete and trade secret disputes with former employees. Many employers believe expensive litigation is their only option when an employee defects to a competitor or takes off with proprietary company information, especially when the situation involves a high-level employee. However, small- and mid-sized companies may be best suited to leverage Rule 202 of the Texas Rules of Civil Procedure because it allows them to investigate possible trade secret claims before filing a lawsuit; potentially saving them both time and money.

Blurred Lines: Texas Supreme Court Applies Hazy Distinction Between Workplace Harassment And Assault

The Texas Supreme Court recently blurred the distinctions between harassment and assault claims as they apply to employer liability under the state’s antidiscrimination statute. In considering whether a plaintiff is required to expressly plead a state law sexual harassment cause of action when bringing such a claim, the court said that plaintiffs need only bring a sexual assault tort claim – carrying with it no limitations on damages and no administrative exhaustion requirements – when the gravamen of the complaint is assault as opposed to harassment.

Texas Court Enjoins Enforcement of Regulation that Would Forbid Discrimination in Healthcare on the Basis of Gender Identity and Termination of Pregnancy

Executive Summary: As LGBTQ rights have taken center stage in political and social issues, FordHarrison has been following ground-breaking litigation related to LGBTQ rights and providing updates. In the latest decision, a federal judge in Texas instituted a nationwide preliminary injunction against the enforcement of a regulation promulgated by the United States Department of Health and Human Services (HHS) under the authority of Section 1557 of the Patient Protection and Affordable Care Act (ACA) that the plaintiffs argued would have required health care providers to perform, and health insurance companies to cover, gender transition procedures and abortion effective January 1, 2017. See Franciscan Alliance v. Burwell (December 31, 2016).

Texas Introduces State Pay Equity Bill Banning Inquiries Into Prior Salaries

Following the growing trend of states enacting laws that address pay equity in the workplace, Texas State Representative Eric Johnson introduced House Bill 290 in the Texas legislature, seeking to amend the Texas Labor Code to prohibit sex discrimination in compensation.

Texas City Joins Growing Ranks of Cities Raising the Minimum Wage to $15 Dollars

Taking its cue from other, larger cities, San Marcos, Texas, recently voted to raise the minimum wage to $15 dollars per hour for businesses applying for tax breaks and others incentives to build or expand in the city. In addition to the higher wage, businesses must also offer all employees and their dependents benefits equal to those offered to full-time employees.

Texas Appellate Court Finds Employee on FMLA Leave Is Not Entitled to Unemployment Benefits

In a case of first impression, Texas’s Second Court of Appeals recently examined the issue of whether an employee who is taking leave under the federal Family and Medical Leave Act (FMLA) may obtain unemployment benefits under the Texas Labor Code. In a win for Texas employers, the court determined that such a person may not simultaneously enjoy the benefits of both statutes. Texas Workforce Commission v. Wichita County, Texas, 02-15-00215-CV (December 8, 2016).

No Texas Hold 'Em: Fifth Circuit Allows Texas to Challenge the EEOC Enforcement Guidance

A somewhat surprising decision in favor of the State of Texas was handed down from the Fifth Circuit Court of Appeals on June 27, 2016, which held that (i) Texas had standing to challenge the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (the Guidance) and (ii) the Guidance is a “final agency action” for the purposes of the Administrative Procedures Act (APA). State of Texas v. EEOC, No. 14-10949, Fifth Circuit Court of Appeals (June 27, 2016).

A Closer Look at Austin’s “Ban the Box” Ordinance

On March 24, 2016, the Austin City Council passed a “ban-the-box” ordinance, the Fair Chance Hiring Ordinance, which took effect on April 4, 2016. The final version of the ordinance was released on April 12, 2016. It prohibits covered employers from inquiring about an individual’s criminal history information, including running background checks, until after a conditional offer of employment has been made.

Austin, Texas, Passes Ordinance Banning Pre-Offer Inquiry into Applicant’s Criminal History

Austin, Texas, has enacted a city ordinance prohibiting employers from asking about or considering a job applicant’s criminal history before making a conditional offer of employment. Austin is the first city in the South to enact such a “Fair Chance” or “Ban the Box” law.

Austin Passes "Ban the Box" Ordinance

On March 24, 2016, the Austin City Council passed an ordinance that will significantly restrict many employers from making employment decisions about applicants or employees based on their criminal histories. The Fair Chance Hiring Ordinance, commonly known as a “ban the box” resolution, will take effect on April 3, 2016 and will prohibit employers from stating in job postings that an applicant’s criminal history automatically disqualifies him or her from a job. The ordinance also prevents covered employers from asking about a potential employee’s criminal background before the employer makes an offer of employment “conditioned solely on the employer’s evaluation of the individual’s criminal history.” This prevents an employer from requesting an applicant’s criminal history in a job application or running a background check prior to making a job offer.

Austin Becomes the First City in Texas to “Ban the Box”

On March 24, 2016, the Austin City Council passed the Fair Chance Hiring Ordinance, which will prohibit most employers from asking questions about or considering an individual’s criminal history until after making a conditional offer of employment. Passage of the Ordinance follows closely on the heels of similar legislation enacted in other cities and states, including Portland, Oregon and New York City.1 It is expected that the Ordinance will become effective 7 to 10 days after its passage. Thus, Austin employers should immediately assess whether they are covered by the Ordinance and, if so, whether they need to revise their job applications and guidelines and documentation for the hiring process.

How Does the New Texas Open Carry Law Affect Employers?

On January 1, 2016, Texas became the 45th state to allow the open carry of firearms. This affects most private employers, with exceptions for schools and certain areas of oil and gas refineries. Private and public businesses that wish to prohibit the carrying of concealed and/or openly carried firearms must display, at every entrance to their premises, the following signage mandated by Texas Penal Code § 30.06 (regarding concealed handguns) and/or § 30.07 (regarding openly carried handguns):

Texas Supreme Court Vindicates Employer That Uniformly Enforced its Leave Policy

On December 4, 2015, the Texas Supreme Court vacated a jury verdict in favor of a former employee who had alleged workers’ compensation retaliation, rendering judgment in favor of the employer and finding that the employee had not presented evidence that his termination had resulted from anything other than the uniform enforcement of a neutral absence control policy. The court found that plaintiff Jorge Melendez had failed to present any evidence to support his allegations that the absence policy of his former employer, Kings Aire, had not been uniformly enforced, that his discharge had not been required by such uniform enforcement, or that Kings Aire’s stated reason for discharging Melendez was false. Accordingly, the evidence was legally insufficient to support the jury’s verdict. Kingsaire, Inc. d/b/a Kings Aire, Inc. v. Melendez, No. 14-006 (December 4, 2015).

Texas Court Rules Religious Institutions not Exempt From all Employment-Related Claims

The United States and Texas Constitutions each provide for the free exercise of religion and the separation of church and state. These constitutional prescriptions frequently bar the application of civil laws, including employment laws, to religious institutions if they require the evaluation of a church’s self-governance. However, in certain circumstances, as reflected in the case below, churches and religious institutions can still be subject to civil laws dealing with employment matters.

Lone Star State Expands Gun Rights, Mandates Additional Signage to Ban Guns from Property

Texas will allow the open carrying of handguns in public and the carrying of concealed handguns on university campuses beginning in 2016 under two bills signed by Governor Greg Abbott.

Share Texas’ Open Carry Law: 3 Steps Hotels Should Take Before the New Year

The Texas statute allowing the open carrying of guns by licensed holders will become effective on January 1, 2016. Prior to this effective date, Texas hotel properties should consider following these three steps in an effort to comply with the law.

Open Carry and Campus Carry: Expanded Handgun Rights in Texas in 2016 and Beyond

In its most recent session, the Texas legislature passed two bills related to handgun possession in Texas. House Bill No. 910 (HB 910) legalizes open carry of handguns in Texas. Senate Bill No. 11 (SB 11) allows handgun license holders in some circumstances to carry a concealed handgun on college campuses in Texas. This article summarizes some of the important provisions in the new laws that will affect employers and educational institutions in Texas beginning in 2016. Employers and educational institutions should review, and consider revising, their existing policies regarding handgun possession in the workplace. In some cases, employers and educational institutions may need to promulgate new policies and procedures to adapt to these new laws.

New Texas Law: Is it Enough to Ease Concern Over Franchise Liability for Employment-Related Claims?

In response to concerns of franchisors that recent National Labor Relations Board (NLRB) actions threaten to undermine the common understanding of a franchisor-franchisee relationship, the Texas Labor Code was amended by the Texas Legislature. The amendment, which goes into effect on September 1, 2015, was introduced to protect franchisors from unmitigated exposure to employment claims asserted against franchisees. The amendment is reportedly in response to the NLRB's General Counsel issuance of unfair labor practice complaints asserting that certain franchisors are "joint employers" with their franchisees. Specifically, S.B. 652 amends the Texas Labor Code to confirm that a franchisor is not considered an employer of its franchisee's workers for any purpose, including employment discrimination, wage and hour laws, workers compensation, and workplace safety.

Restroom Rights—The New Challenge for Texas Employers

Time was when an employer’s only preoccupation with restrooms was whether the cleaning crew was keeping them stocked with soap, towels, and toilet paper. Enter the new reality: federal agencies and LGBT rights groups are contending that transgender employees should be given the right to choose between restrooms having an “M” or a “W” on the door.

New Texas "Open Carry" Legislation On Its Way to Becoming Law

The Texas House of Representatives recently passed legislation (H.B. 910) that will allow holders of a concealed handgun license to carry holstered handguns in plain view. The Texas Senate passed its version of the “open carry” law (S.B. 17) in April 2015. The bills will proceed to conference committee where they will be reconciled. While Texas Governor Greg Abbott has yet to sign a final version of the open carry law, he has promised to do so via Twitter, stating “Open Carry just passed in both the Texas House & Senate. Next destination: My Pen.” The open carry law, once signed by Governor Abbott and unless altered by any subsequent revision in committee, is set to go into effect on September 1, 2015, at which point Texas will become the 45th state to permit open carry. So, what does this mean for employers?

Texas Supreme Court: Opposition to Inappropriate but not Unlawful Acts is not Protected Activity Under Texas Law

On April 24, 2015, the Supreme Court of Texas released an opinion in a case brought under Texas law that will help Texas employers defend themselves against claims of retaliation. In San Antonio Water System v. Nicholas, the court held that the law does not protect a plaintiff from retaliation for opposing a colleague’s unwelcome lunch invitations made to other employees because, the court found, extending a limited number of lunch invitations could not reasonably be considered unlawful harassment.

Dallas Voters Approve City Charter Amendment Prohibiting Discrimination Against City Employees based on Gender Identity and Sexual Orientation

Executive Summary: On November 4, 2014, voters in Dallas approved an amendment to the City Charter to add nondiscrimination protections for LGBT city employees.

Let’s Shake On It: Texas Case Exemplifies the Perils of Adopting a Company-Wide Practice of Oral Agreements

An opinion out of the Fourteenth Court of Appeals demonstrates why employers need to be weary of developing a practice of oral agreements in regards to compensation upon which at-will employees may detrimentally rely. The court affirmed a judgment in excess of $1.1 million in favor of a former at-will executive employee against his former employer for breach of an oral contract regarding his compensation and severance. Specifically, the appellate court held the evidence was factually sufficient to support the jury’s findings that Richard Holmes and Sempra Energy Trading, LLC had verbally agreed to a retroactive salary increase, to the payment of a bonus, and to the payment of severance. Sempra Energy Trading, LLC v. Holmes, No. 14-13-00206-CV, Tex Court of Appeals for the Fourteenth District (July 24, 2014).

Twists And Turns For Texas' Health Care Employers

Texans are a unique bunch. This goes beyond the loud, boisterous and larger than life caricature that comes to most people’s minds. Not everyone wears boots and Stetsons. At least, not all the time.

Proper Processes Can Insulate Employer From Tortious Act of Employees

Employers occasionally become dejected over the prospects of defending against tort and other civil claims in state courts. However, a recent case out of Houston reaffirms that employers can and do win these kinds of cases when they have implemented the appropriate policies.

Texas Businesses: Take Child Abuse Reporting Seriously

Most educators in Texas know about their obligations under Texas law to report child abuse. But most Texas businesses assume that these reporting requirements do not apply to them. The truth is, the Texas statute is very broad and creates serious legal obligations for any person who regularly comes into contact with children and is or becomes aware of abuse.

Would Texas Law Support Disgorgement of Payments When Plaintiff’s Daughter Makes Comments On Facebook?

In a case that received national attention, on February 26, 2014, a Florida District Court of Appeal held that a plaintiff’s comments to his daughter regarding a settlement with his former employer and his daughter’s subsequent comment on Facebook about the settlement constituted a breach of the plaintiff’s confidentially obligations. In the underlying lawsuit the plaintiff, who had alleged age discrimination and retaliation claims under Florida state law against his former employer—a prep school—entered into a settlement agreement with the school. In the agreement, a confidentiality provision mandated that the plaintiff could not directly or indirectly disclose or communicate to any entity or person, except for his attorneys, professional advisors, or spouse, any information whatsoever regarding the existence or terms of the settlement agreement. A breach of this provision would result in the disgorgement of the plaintiff’s portion of settlement payments.

Is An Employee Who Is Six Days out of Rehab “Disabled” Under the TCHRA?

The Texas Commission on Human Rights Act (TCHRA) provides that a “current condition of addiction” to alcohol, drugs, or controlled substances is not a covered “disability.” In Melendez v. Houston Independent School District (December 5, 2013), the Texas 14th District Court of Appeals in Houston was asked to decide whether an employee who was allegedly fired upon returning from rehabilitation for abuse of prescription drugs was a “current” user beyond the state law’s protections.

5th Circuit Short Circuits Plaintiff's Use of State Court

In certain parts of Texas, plaintiffs seek to avoid being in federal court at all costs. Today, the 5th Circuit clarified a procedural hurdle to that tactic in a small category of cases.

Which Arbitration Agreement Clauses Will Texas Courts Find Unconscionable?

In recent years, courts have consistently supported employers’ use of arbitration agreements in employment settings. During the last few terms, the Supreme Court of the United States has issued several decisions, such as American Express Company v. Italian Colors Restaurant (2013) and AT&T Mobility, LLC v. Concepion (2011), upholding the use of arbitration agreements. Texas courts have also issued decisions, such as In re Halliburton Co. (2002), upholding the use of such agreements.

New Texas Trade Secret Law Takes Effect September 1

The Texas Uniform Trade Secrets Act (TUTSA or the Act) takes effect on September 1, 2013, and will apply to the theft of trade secrets occurring on or after that date. While trade secrets have long received protection under Texas common law, TUTSA will provide companies with additional safeguards and will expand the available legal remedies to address actual and anticipated harm.

Stuck In A Background Check Catch-22? Texas Has Your Back

Employers seem to be caught in an impossible catch-22 these days: run a background check on a job candidate and risk a potential discrimination lawsuit or forego this procedure and risk exposing the company to potential liability for negligent hiring or supervision. This is the position that the Equal Employment Opportunity Commission seems to be putting employers in by its aggressive interpretation of Title VII as prohibiting blanket rules against hiring applicants with criminal backgrounds.

New Texas State Court Rules For Motions To Dismiss And Expedited Trials

Effective March 1, 2013, the Texas Supreme Court revised the Texas Rules of Civil Procedure by 1) allowing defendants, for the first time in Texas state court practice, to file the equivalent of a Federal Rule 12(b)(6) motion, and 2) providing an expedited trial procedure for cases involving less than $100,000 in controversy. Both of these revisions could prove valuable for our clients with cases filed in Texas state court.

Is The EEOC Messing With Texas?

Texas companies may be feeling the heat of potential Equal Employment Opportunity Commission investigations, including the agency’s recent strategy of focusing on class-based situations against employers — large and small — in an effort to crack down on systemic workplace discrimination. The message is clear.

Texas Supreme Court Advisory on Attorneys' Fees in TCHRA Cases

A short message to plaintiff's attorneys in TCHRA cases from the Supreme Court: join your defense brethren in "measuring out your life with coffee spoons," i.e. keeping contemporaneous time records of what you do.

Jury Waivers Treated Same As Arbitration Agreements by Texas Supreme Court

I would have been surprised if the decision went the other way, but today the Texas Supreme Court affirmed that an at will employee who signed a jury waiver agreement rather than be terminated was not entitled to have it set aside because he was coerced. In re Frank Kent Motor Company (Tx. 3.9.12).

While I Am in the Land of Aloha, the Legislature Permits Guns on Employer Parking Lots Premises

I am vacationing on the Garden Island, but taking some time tonite to catch up on what's been going on. When I left Texas the legislature was still in session, although I thought all the economic problems would keep them from doing too much mischief potentially harmful to employers.

Texas Driver License Woes.

The Texas Department of Public Safety implemented a new administrative rule on October 1, 2008 requiring proof of legal status for more than six months after the date of application before an original, renewal or duplicate Texas driver license or identification card will be issued. This creates a significant obstacle to renewing a driver license for persons who are neither a U.S. citizen nor a lawful permanent resident (green card holder).
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