Five 2018 Employment Law Cases That Impact Texas

Last year brought a number of important labor and employment cases — both national and local — that could have far-reaching effects on the workplace. A recent article from the Dallas Bar Association reviews five that will significantly affect Texas employers in 2019 and beyond.

Epic Systems Corp v. Lewis
In a decision we reviewed in June, the U.S. Supreme Court ruled that employers can enforce arbitration agreements in which employees agree to arbitrate claims against employers individually, rather than as part of a class action. The decision settles the National Labor Relations Board argument that these agreements violate employees’ rights to participate in collective action. As a result, more employers will no doubt add class action waivers to their arbitration agreements.

Mount Lemmon Fire District v. Guido
The U.S. Supreme Court held that the Age Discrimination in Employment Act of 1967 (ADEA) applies to state and local governments, regardless of the number of employers they have. The ADEA prohibits age discrimination against anyone 40 years of age or older in private employers with 20 or more employees. The Court found that the 20-employee requirement applied to industries affecting commerce, but not to states or political subdivisions, for which there is no such requirement.

In-N-Out Burger, Inc. v. NLRB
The Fifth Circuit Court of Appeals held that employees of an Austin location of In-N-Out Burger had a right to wear “Fight for $15” buttons advocating for a higher minimum wage, while at work. The employer asked employees to remove the buttons because they violated the uniform policy, leading to an employee filing an unfair labor practice charge with the National Labor Relations Board (NLRB). The complaint asserted that the employer violated the National Labor Relations Act’s Section 7, which gives employees the right to engage in joint activities for the purpose of collective bargaining. Both NLRB and the Fifth Circuit Court of Appeals rejected the employer’s argument that the restaurant’s public image and concern with food safety were “special circumstances” that justified the ban on buttons.

Gardner v. CLC of Pascagoula, L.L.C.
In this Title VII claim, a nurse at an assisted living facility alleged that she was sexually harassed by a patient with dementia and experienced retaliation when she refused to attend to the harasser in order to protect herself. She claimed that the facility did not take reasonable measures to prevent the harassment, creating a hostile work environment. The court agreed that an employer is responsible for protecting its employees from harassment at work by non-employees when the company knows or should have known about the issue and fails to take corrective action. The fact that the nurse’s job responsibilities included care for patients with dementia, a condition that often causes belligerent behavior, complicated the issue, but the court concluded that the evidence warranted a jury trial. While the case is not settled, it highlights the possibility that Texas employers may be responsible for harassment of their employees by third parties such as clients, vendors, or suppliers, and must address such situations or risk liability.

Wittmer v. Phillips 66 Co.
The Southern District of Texas was the first Texas court to recognize LGBT protections under Title VII. In this case, a transgender woman claimed that Phillips 66 rescinded a job offer due to her gender identity. The court ultimately issued a summary judgment against the employee, finding that inconsistencies uncovered in a background check were why the job offer was withdrawn, not her transgender status. In the opinion, however, the court stated that transgender employees are protected from discrimination under Title VII. This case signals a larger trend that will allow employees to argue for expanding current protections of LGBT individuals in Texas.

Our takeaway from these cases is that the employment law realm continues to be unpredictable — and 2019 will likely continue that trend. We will keep up with the latest developments and do our best to help you understand how they affect you. When you have questions or concerns, we’d love to help.

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