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Total Articles: 53

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.

Don’t Mess with Texas: a Quick Draw on Lone Star State Employment Law

As any Texan will tell you, “Everything is bigger in Texas!” And with an economy that would rank 10th largest in the world if Texas were a country, you are likely to interact at some point with businesses in the Lone Star State. You may even find yourself hiring or managing employees there. If so, below are some interesting and very Texan takes on employment law that may be helpful when you do.

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 Will Be First Texas City to 'Ban the Box' for Private Employers

Austin will become the first Texas city to restrict the use of criminal history information by private employers in the hiring process. In late March, the Austin City Council passed the Fair Chance Hiring Ordinance, and Mayor Steve Adler is expected to sign it soon. The ordinance will prohibit both criminal history inquiries and criminal background checks until after an employer makes a conditional job offer. Those provisions will make the new law the broadest "ban the box" measure in the South.

Austin Will Be First Texas City to 'Ban the Box' for Private Employers

Austin will become the first Texas city to restrict the use of criminal history information by private employers in the hiring process. In late March, the Austin City Council passed the Fair Chance Hiring Ordinance, and Mayor Steve Adler is expected to sign it soon. The ordinance will prohibit both criminal history inquiries and criminal background checks until after an employer makes a conditional job offer. Those provisions will make the new law the broadest "ban the box" measure in the South.

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.

Three Surprising Facts About Texas Employment Law

Are you an employer or HR professional in Texas?

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.

Texas Supreme Court Blocks Houston's LGBT Antidiscrimination Law

The Texas Supreme Court has ordered the Houston City Council to either repeal the city's 2014 equal rights ordinance or place it on this November's ballot. The ordinance prohibited discrimination based on a number of factors, most notably for sexual orientation and gender identity.

Texas Will Exclude Franchisors as Employers of Franchisees, Franchisees' Employees

A franchisor will not be considered an employer of its franchisees or their employees under an amendment to the Texas Labor Code. Subject to a limited exception, if a franchisee's employee were to file a lawsuit, the franchisee would incur liability as the employer without sharing joint liability with the overarching corporation. The amendment takes effect September 1, 2015.

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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