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).
Articles about Texas Labor And Employment Law.
Texas Court Reminds Lost Sales Are Not Lost Profits
Proof of damages in restrictive covenant matters can be complicated. In Rhymes v. Filter Resources, Inc., the Ninth Court of Appeals in Beaumont reminded parties that revenue and sales are not the same as lost profits, and expenses must be considered when developing a damage model.
Invocation of “The Rule” During Trade Secret Injunction Hearings
The Texas Supreme Court ruled today that a party accused of stealing trade secrets does not have an absolute right to be present in the courtroom for the entirety of a preliminary injunction hearing when the trade secrets at issue are discussed. In December 2014, MI-SWACO, a subsidiary of oil and gas services company Schlumberger sought a writ of mandamus after a trial court allowed the party alleged to have received or benefitted from misappropriated trade secrets to be in the courtroom during evidentiary proceedings discussing the trade secrets at issue.
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 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.
Fifth Circuit Decision May Endanger Many Texas Arbitration Agreements
Executive Summary: The Fifth Circuit has issued a decision which may affect Texas employers who utilize employment arbitration agreements. In Nelson v. Watch House Int’l, L.L.C., No. 15-10531 (5th Cir. Mar. 2, 2016), the court found an employment arbitration agreement unenforceable where the “savings clause” did not expressly require advance notice to employees of amendments and/or termination of the arbitration agreement.
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):
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.
Fifth Circuit Affirms Rejection of Texas Choice-of-Law as to Oklahoma-Based Employees for Non-Compete Provisions, But Allows Texas Law to Apply to Non-Solicitation Provisions
In a detailed, 26-page published decision in the matter of Cardoni v Prosperity Bank, No. 14-20682 (5th Cir. Oct. 29, 2015) the Fifth Circuit Court of Appeals took a deep look at choice of law provisions in restrictive covenants. The Appellate Court started out by noting that in addition to their well-known disagreements over boundaries and football, Texas and Oklahoma do not see eye to eye on the enforceability of non-compete agreements. Texas generally allows them, Oklahoma does not.
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.
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.
Texas Court Enforces Two-Year Non-Compete; Suggests Restrictions up to Five Years May be Reasonable
A U.S. District Judge in the Northern District of Texas has issued a preliminary injunction to enforce a non-compete agreement in Brink’s, Inc. v. Patrick, Case No. 3:14-cv-775-B (N.D. Tex., 6/26/14). The opinion adheres to well-established Texas law principles regarding the reasonableness of the limitations contained in non-compete agreements.
New Houston Ordinance Bans Sexual Orientation, Gender Identity, Familial Status, and Marital Status Discrimination in Employment
A new Houston ordinance prohibits private employers from discriminating against employees on the basis of sexual orientation, gender identity, familial status, and marital status. The Houston Equal Rights Ordinance (“HERO”), which takes effect on June 27, 2014, expands the types of “protected characteristics” beyond those which are covered currently by federal and state anti-discrimination laws.
Houston City Council Passes City’s First Anti-Discrimination in Private Employment Ordinance
On May 28, 2014, the Houston City Council passed the city’s first ordinance to ban discrimination in private workplaces, and to expand the types of prohibited discrimination for employers subject to this ordinance, as noted below. Houston is one of the last major cities in the United States to adopt such an ordinance, and joins Texas cities Austin, Dallas, El Paso, Fort Worth, and San Antonio, which have already adopted their own similar ordinances. In addition to banning discrimination in the workplace, the Houston ordinance applies to housing, public city employment, and city contracting. The ordinance goes into effect on June 27, 2014.