San Antonio Employment Law Blog

San Antonio Employment Law Blog

Fifth Circuit Clears up “Mess” Regarding Stray Remarks

Posted in Discrimination
Hallway

There are some theories of law that some courts and most defense lawyers rely on to undermine otherwise good discrimination cases. One of those theories is the “stray remarks” doctrine. In general, the stray remarks doctrine holds that some remarks by management are so remote from the adverse personnel action that they are not relevant. Such remarks are said to be “stray.” I find some of these cases to be result oriented. They are produced by judges who seem to be looking for ways to dismiss a discrimination case. After all, if a remark is truly “stray,” does not that pertain more to the weight of the evidence than to its admissibility? If Jim Bob made a racial remark 20 years ago, does not that still have some relevance, however small?

The decision in Goudeau v. National Oilwell Varco, LP, No. 14-20241 (5th Cir. 7/16/2015) helps clear up some of the confusion

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DOL Issues New Guidance Regarding Independent Contractors

Posted in Wage and Hour Issues

The Department of Labor, Wage and Hour Division, has issued new interpretative guidance regarding independent contractors. As I have mentioned before, many employers are trying to stretch the limits of independent contractors to include as many employees as possible. See my post here. This trend has been ongoing for a decade or more. The Administrator’s Interpretation No. 2015-1 can be found here. The guidance makes it clear that the old common law test will not apply to cases under the Fair Labor Standards Act. Courts applying the FLSA should apply the “economic realities” test. DOL adds in a footnote that while many cases involve alleged independent contractors, many other cases involve purported “partners,” “owners,” or members of a limited liability company. In such instances, the economic realities test will still apply. The economic realities test essentially asks whether the worker is economically dependent on the employer. The Guidance addresses

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Wayne Wright Agrees to Consent Decree in Pregnancy Discrimination Case

Posted in Discrimination
Ink pen

Wayne Wright, LLP, whose motto is the law firm demands “respect and justice” for its clients, was sued for pregnancy based discrimination in 2015. The EEOC filed suit after Kendra Taylor-Andrews filed a complaint with the EEOC. Ms. Taylor-Andrews had been employed by Wayne Wright in Houston since 2004. She received favorable performance reviews during her employment. But, in 2011, she told her employer that she was pregnant. The law firm told her it could not accommodate her pregnancy and told her to choose her last day on the job. When she asked for clarification, the firm placed her on a personal improvement plan. Within a week, the firm fired her. Ms. Taylor-Andrews then filed a charge with the EEOC in June.

The employer would have received the charge by July. On August 19, 2011, it filed suit against Ms. Taylor-Andrews in County Court in Bexar County. The law firm sought a

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Donald Trump is a Wacko Bird

Posted in General

Donald Trump, who apparently has a reputation for saying strange things, has said Sen. McCain was not a war hero because he was captured. Later, he qualified his comments, saying the senator was a hero but suggesting that being captured diminished his service. His comments are beyond silly. Donald Trump never served. He is far from an expert on military service. According to one report, Donald Trump received five deferments during the Viet Nam War. See ABC news report regarding some of his deferments.

And, I have to say, anyone who did time in a Vietnamese POW camp or in a Japanese POW camp served far above the normal requirements of military service. See CBS news report. And, as most folks probably know, John McCain performed better than most in those camps. He could have left the camp much sooner than he did. He chose to remain imprisoned because he

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San Antonio Restaurant Kept Two Sets of Books

Posted in Wage and Hour Issues
Book

San Antonio based restaurant China Sea, agreed to pay $504,577 to 82 former workers for minimum wage, overtime and record-keeping violations. China Sea used two sets of books, one real, one not so real. Some kitchen workers were paid a salary that did not equate to minimum wage. And some workers worked 60 hours per week, but their hours were not recorded. And, servers were not properly paid. The Department of Labor filed suit against the corporate owner, PCXAC LLC and WKHK Investment LLC, which own three China Sea restaurants. The suit originally sought over $1 million in damages on behalf of 164 workers.

The lawsuit was filed in 2012. The parties completed discovery and apparently agreed to a settlement after a mediation session. See Cause No. 12-CV-1210. See San Antonio Express News report.

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Texas State Guard will Monitor Jade Helm Exercise

Posted in Uncategorized

Gov. Abbott has asked the Texas State Guard to “monitor” the training known as Jade Helm 15. I previously wrote about that silly request here. I was wrong in describing the entity as the Texas National Guard. The Governor actually asked the “Texas State Guard” to watch the Special Forces soldiers traipse around conducting their training exercise. The Texas State Guard is a different entity than the National Guard. The State Guard is a voluntary position. They undergo very limited training. But, many former service members serve in the State Guard. I knew or saw a few State Guard members when I served in the Texas National Guard. My impression then was that they were basically adult boy scouts. But, now I know better. Some of them do good work. Others are slightly more effective than boy scouts.

The Governor made a strange request. Fortunately, not much is required. The State

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Lawyers Threaten Complaint about Texas AG

Posted in Uncategorized

If a lawyer said what Ken Paxton said about disregarding A Supreme Court decision, then that lawyer would indeed face disbarment. So, it is perhaps not surprising that some 150 Texas lawyers have threatened to file a complaint about the Texas Attorney General. Ken Paxton issued legal guidance soon after the Supreme Court decision finding that gay marriages enjoyed protection under the U.S. Constitution. The day after the decision, the AG issued guidance that County Clerks could choose to ignore the decision if it violated their religious beliefs. But, warned, the AG, such County Clerks could face litigation if they refused to issue marriage licenses to gay persons.

Some 150 Texas lawyers have indicated they would file a complaint with the Texas bar about his unlawful legal guidance. See Texas Tribune report. The letter mentions the oath we lawyers take to uphold the U.S. Constitution.

Too, one must question the advice that

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Trump’s Defends Comments about Mexicans

Posted in Uncategorized

According to Donald Trump, many Mexican immigrants are rapists. He defended his comments later. See Business insider report. They also bring drugs and crime. But, some, he says, are good people. All I can say his experience with Mexican immigrants is far different than mine.

Surprisingly, Sen. Ted Cruz supported Mr. Trump in making his comments. Sen. Cruz focused on the need to tighten the nation’s borders. But, other candidates, including Rick Perry and Jeb Bush have criticized Mr. Trump for the evident racism of his comments.

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Overtime Becomes More Common for Managers

Posted in Wage and Hour Issues

President Obama announced that the administration will change regulations to allow overtime pay for managers who make up to $970 per week. The current level is $455 per week, which makes the overtime regulation largely meaningless. Indeed, this regulation has lost much of its effectiveness since 1975, when it applied to 65% of management. Now, under the current level, the overtime requirement only applies to 12% of managerial workers. See CNN news report. The increase to $970 per month means overtime will apply to 47% of managers.

For decades, this overtime provision has provided a scam for employers. They could often save money by re-naming a position as managerial, assign some minimal supervisory duties,  and thereby avoid having to pay overtime. The current salary level of $455 per week was set by Pres. Bush in 2004.

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Non-Compete Agreements are Increasingly Common

Posted in Contracts

Non-compete agreements have been used in the market place for decades within certain sectors, such as physicians and some sales representatives. In the past year or so, I have heard from several workers who signed non-compete agreements. One poor young woman, in her 20’s, was sued after she changed jobs. She simply moved to a job in the same field but at a higher rate of pay. There was no agreement with her new employer to bring a “secret” customer list or to solicit customers from the old employer. She simply changed jobs because the new employer offered higher pay.

Yet, the old employer filed suit against the young lady. The suit accused the young woman of stealing customers and damaging its referral program. The poor young woman kept telling me how the lawsuit was inaccurate, that only one customer switched, and that there was no referral- rewards program at the old

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