Labor & Employment Law

If Anyone Still Shows Up Here Intentionally

Posted on February 03, 2020
There is now a new version, reflecting my new status, at employerslawyer.com.Feel free to stop by and see what occupies an employer's lawyer who is now retired.

After 42 Years, It's Nice to Know That I Might Be Qualified for Something

Posted on April 26, 2017
In this morning's mail box ...Michael, BCG Attorney Search noticed that the following job might suit your qualifications and experience. We are pleased to provide you with the latest jobs from your preferred geographic location and practice area as and when they become available...

The Concept of Fallow Ground and Other Musings

Posted on March 07, 2017
More than one year has passed since my last post, and the two or three years before were little more productive. Still for some reason, hopefully more noble than ego, I have chosen not to kill off this spot on the internet.Like the biblical admonition and agricultural practice of letting farm land rest for a period of time so it might be more fertile, the hope is this prolonged period away from posting will allow me to return to it with an even more helpful perspective on the world of work, from my vantage point as one who has represented employers for an extended period of time...

An Unusual Condition of Employment - You Must Be Armed

Posted on February 24, 2016
A basic tenet of American employment law is that employment is at will, meaning that the employer can set the conditions of employment as long as it is not otherwise illegal.A Georgia businessman who provides aviation insurance has a new one: all employees must carry weapons...

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Mandatory Arbitration and the Supreme Court - The First of Potentially Many New Days

Posted on February 19, 2016
As Justice Scalia''s body lies in state in the Great Hall of the Supreme Court this morning, my eye was caught by the first headline in today's Employment Law 360.The headline and lead:5th Circ. Starts Clock For NLRB Appeal Of Murphy Oil RulingThe Fifth Circuit on Thursday issued its judgment based on its October opinion that mostly reversed a National Labor Relations Board ruling that had found Murphy Oil arbitration agreements barring workers from pursuing class or collective actions as unlawful, setting the stage for a potential NLRB appeal...

40 Years at the Bar

Posted on October 21, 2015
I can?t honestly say what I anticipated 40 years ago today when I came to Austin to be sworn in as a member of the Texas state bar. But it is unlikely that I could have anticipated all the twists and turns, both professionally and personally, that have occurred since that October day 40 years ago...

Lessons from Just One Day's Daily Labor Report

Posted on September 25, 2015
One of the venerable sources of information for labor and employment lawyer's has been BNA's Daily Labor Report. I can't remember when I first started reading it regularly, but it has been a long time. Now it comes neatly to my in box, but back in the old days the paper version was circulated and so for the first few years it was certainly not new news by the time it made it to my desk...

Domestic Violence: A Possible Solution

Posted on July 24, 2015
One of the humbling aspects of keeping an online journal for any period of time, particularly when you are so unwise as to make predictions is that there exists documented proof of your own errors.I have said (actually I think on more than one occasion), that I thought domestic violence would at some point become a major issue for employers...

Getting Rid of the Annual Review

Posted on July 23, 2015
All too often, I have seen the annual performance evaluation show up in a trial as a Plaintiff's exhibit, rather than what you would think should be true, that it ought to be the best evidence for the employer, particularly if the subject of the lawsuit is a dismissal for poor performance...

Birthdays: Mine and Jottings

Posted on July 22, 2015
If on my 18th birthday, I had been given the following list of what I thought I would be doing on my 65th birthday, I am not sure what my answer would have been:Broadcasting yet another game as the voice of the Houston Astros;Preparing for another year of teaching history at a small liberal arts college;Resting besides my parents in Restlawn Memorial Cemetery;Trying a race discrimination and retaliation case in state court in North Carolina; orCovering politics for the Dallas Morning NewsMy first choice would probably have been being the voice of the Houston Astros, although in thinking about it, that's unlikely, both that I would have ever had the chance or that it would be on the list since I didn't become an Astros fan until I lived in Houston after graduating from law school...

Death On the Job: Not Quite as Bad as it Sounds

Posted on May 04, 2015
I was shocked this morning on one of the business news summaries I get to see a report that 150 Americans die from hazardous working conditions each day. To me that was a shocking figure.The source for the article is apparently the 2015 edition of Death on the Job: The Toll of Neglect, produced by the AFL-CIO which as it turns out is still based on 2013 data...

The Evolution of Employment Law

Posted on January 30, 2015
When I started practicing, 40 years ago, the law of employment was still covered in the legal treatises under the law of Master and Servant. We have come a long way. But we still divide those who do the work into two broad categories: employees and independent contractors...

A Labor Reporter: Steven Greenhouse

Posted on December 09, 2014
The Washington Post has a great interview with someone who spent the last 30 years covering the labor beat for the New York Times, Steven Greenhouse.  He is taking a buyout and will be writing a book, but his insight on labor unions and inequality are worth checking out...

Where is our Portal to Portal Act of 2014? Supreme Court Decision in Integrity Staffing v. Busk

Posted on December 09, 2014
First, the good news. The Supreme Court today unanimously held that post-shift security checks, even when required by the employer were noncompensable postliminary activities under the Portal to Portal Act, reversing a determination by the 9th Circuit...

5th Circuit Takes Expansive View of SOX

Posted on November 24, 2014
While I was starting a week long trial in the Southern District of Texas, the 5th Circuit was taking a wide, pro-employee view of Sarbanes Oxley.  In Halliburton v. Administrative Review Board (5th Cir. 11.12.14) the Court was faced with an unusual factual case...

Implicit Bias: A Brave New World

Posted on September 26, 2014
Implicit bias as a concept has been bubbling around the world of employment discrimination for a few years now. Although the fact that Google is seriously studying the issue as it applies to its own workforce may not mean that the concept is now main stream, I do think it means it is an issue that we will be hearing more about...

5th Circuit Weighs In On Religious Discrmination

Posted on August 26, 2014
Yesterday's post about the difficulty that courts have in dealing with religious discrimination, see Not Off to a Good Start and Onionhead: the newest religion? could not have been a better segue way to today's decision from the 5th Circuit, Davis v...

Not Off to a Good Start and Onionhead: the newest religion?

Posted on August 25, 2014
Six weeks ago, on the 12th anniversary of this blog, I indicated that I would see if last year's lack of posting would continue and whether or not it was time to give this blog a formal ending.  Based on the last six weeks, it is definitely on its death bed...

12 Years Ago

Posted on July 17, 2014
I posted the initial post on this blog. A dozen years is a long time to keep anything going, although you could seriously question whether or not this last year it was really going as the posts were few and far between.As I have spoken in the past, when I began I was the first labor and employment law blog, although there were some others that joined soon after...

How Disruptive Can an Aggressive NLRB Be in a Non-Union Setting? More Than You Might Think

Posted on March 25, 2014
If you are a non-union employer (and overwhelmingly most employers are) you might not have given much thought to your how your confidentiality policy stacked up against the National Labor Relations Act. In fact your policy might read something like the following:Confidential InformationEmployees deal with and have access to information that must stay within the Organization...

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

Posted on March 10, 2014
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.In Taylor v. Bailey Tool & Manufacturing (5th Cir. 3/10/14), plaintiff originally filed suit in state court alleging only violations of the Texas anti-discrimination statute...

How Much Would it Take to Wet Your Whistle?

Posted on March 10, 2014
That's a 64 million dollar question, literally. JP Morgan whistleblower gets $63.9 million in mortgage fraud deal. It seems quite likely that headlines like that are apt to make many think that rather than continuing to work as an assistant vice president, as Keith Edwards did before reporting that JP Morgan was submitting mortgages for FHA and VA approval that did not qualify, and apparently not notifying the government that its own internal review had disclosed the problem, that it might make sense to play a new version of the lottery...

5th Circuit's View on Extraterritorial Application of SOX? Not Yet

Posted on February 13, 2014
One of the many issues still to be decided for whistle-blowing claims under Sarbanes Oxley is how far does the law extend, if at all, for conduct outside the United States.A Colombian national who had alleged his employer, an affiliate of a U.S. company, was violating Colombian tax law hoped to find the answer to that question...

50 Years Ago, The Civil Rights Act of 1964 Passes the House of Representatives

Posted on February 10, 2014
The statute that among many other things marked the beginning of employment law as a discipline, passed a major hurdle 50 years ago today when it passed the House of Representatives by a vote of 290 to 130.According to a study of the Civil Rights Act's legislative history, The Longest Debate by Charles and Barbara Whalen, the final vote was 290 to 130...

Happy 50th, Sex As a Protected Category

Posted on February 08, 2014
Fifty years ago, on another February Saturday, after what had been a grueling fight to pass a strengthened Civil Right bill out of the House, Representative Howard Smith (D-VA) who had lost his battle to bottle the bill in the Rules Committee that he chaired, offered an amendment on the floor of the House to expand the protected categories from race, color, national origin and religion, by adding sex...

Arbitration (Awards) Not Necessarily Private in Texas

Posted on March 28, 2011
Thanks to Professor Ross Runkel for calling my attention to a case decided in my own backyard, McAfee, Inc. v. Weiss, (Tx. App. - Dallas 3.16.11), which held that a trial court's refusal to seal an arbitration opinion and award  attached to a motion to confirm the award was not an abuse of discretion...

With a Friend Like Justice Scalia ... Cat's Paw Decision Not Very Employer Friendly

Posted on March 01, 2011
Although viewed as one of THE most conservative justices, I am not sure anyone who is very knowledgeable about employment law relishes the idea of Judge Scalia writing the majority opinion in an employment law case. If they did before this term, their view would be strongly challenged by today's decision in Staub v...

Checking Out the Judge's Family

Posted on February 18, 2011
Since in employment law we routinely deal with cases involving gender, this bit of social science reported on in The Volokh Conspiracy, might be worthwhile checking out: Do Daughters Influence Judges?. Short answer as reflected from the abstract of the article...

There's That Word Again - Bully

Posted on February 02, 2011
Hat tip to the folks at the Daily Labor Report, who found a case that will fold into my presentation that I will be giving at the 2011 Gulf Coast Symposium  on Human Resource Issues later this spring. My presentation is Civility in the Workplace: Now It Is a Legal Issue...

Kansas City Verdict - Another Successful "Reverse Discrimination" Claim

Posted on January 27, 2011
Earlier this month I commented that one trend we might see this year was more "reverse discrimination" claims. See, 2011 -- the Year of the Non-minority? The outcome of a suit in a Kansas City courtroom yesterday does not prove me right, but it certainly does nothing to prove me wrong...

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