I have previously written about joint employers. See my posts here and here. TheTrump administration tried to make it harder to show a joint employer relationship. It adopted an interpretive regulation which the DOL thought would make it harder to prove joint employers. But, the court in State of New York v. Scalia, No. 20-cv-01689 (S.D. N.Y. 9/8/20), overturned that new rule. In that suit, some 20 states sued to stop implementation of the new regulation regarding joint employers. The Southern District of New York agreed with the plaintiffs. And, the DOL made it easy for the court to agree with the plaintiffs.

The Court noted that Department of Labor did not contest the estimate of costs of the new rule made by the EconomicPolicy Institute, a think tank. DOL simply replied that exact costs could not be measured. But, as the court noted, that does not mean evidence of the costs are not relevant. And, DOL made an unnecessary comment when it said that if all employers paid what they owed, then there would be no costs of the new rule. But, as the court noted, the Fair Labor Standards Act exists because some employers do not pay what they owe to American workers. If all employers paid what they owed, there would not be a Fair Labor Standards Act. Some DOL attorney probably felt smug in making that remark, but it did not help his/her position. Indeed, the court found it “silly” to argue that all employers honored their commitments to pay a wage, and therefore the new rule would have no adverse effect. Such a silly statement disregards the whole purpose of the FLSA.

The court also engaged in a scholarly treatise of the definitions of “employer,” “employ” and “employee.” It noted that the FLSA intertwines all three definitions. The court said the new regulation disregards the meaning of the FLSA. The new rule defines employer with an illustrative example that an employer “includes” anyone acting with a direct or indirect interest on behalf of the employer. The new regulation adopted that one example and made it the entire definition of “employer.” The court noted rightly that the FLSA definition is more broad than just that one example.

And, the court noted that the FLSA, passed in 1938, was drafted to address “middle men” who hired child labor. It was also meant to deal with sweat shops. Those sweat shops were an early form of farmed-out labor. A manufacturer could hire a sweat shop and then avoid direct responsibility for the labor conditions. The new regulation disregarded that history.

See the decision here.

Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages. TWC provides a helpful summary of the Texas Pay Day statute. See the TWC summary here. But, their summary does not answer one frequently asked question, when must an employer pay the last paycheck?  I am asked this often, since many employers withhold the last paycheck until the employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever.

The employer has no choice. The employer must pay the last paycheck within six days of the last day of employment. See Texas Labor Code. Art. 61.014. But, what happens to an employer if they do not meet the six day deadline? Not much. The employer can incur a criminal penalty, but who will enforce that law and seek a criminal penalty? In reality, no one does. Most District Attorney’s are far too busy to prosecute a crime they see as relatively minor.

What happens when an employer obtains access to your Facebook page? In Galvez v. City of Katy, No. No. H-18-4221, 2019 US Dist LEXIS 20634 (S.D. Tex. 2/8/2019), we see an employer who accessed Maria Galvez’ Facebok page while she was out on leave. The City had access to her page, because Ms. Galvez was the administrator for the City’s Facebook page. Her personal page was connected to the City’s Facebook page. The City then used some of her comments in a Council hearing in response to an appeal by the employee.

Ms. Galvez sued the employer for intrusion of her seclusion and invasion of privacy. Later, she added claims based on unlawful search and seizure (42 U.S.C. §1983) and on the Stored Stored Communications Act (18 U.S,C. §2707).  The employer moved for partial judgment on the pleadings. The Southern District of Texas rejected the motion.

The court found the City acted in a proprietary capacity when it looked at her Facebook Messenger pages. It was not acting in a governmental capacity. So, the court rejected the sovereign immunity defense. Intrusion of seclusion.invasion of privacy is an intentional tort. The Texas Tort Claims Act does not waive governmental immunity for intentional torts. The court added that it may turn out that the City had some governmental interest in looking at her Facebook information, for now at this stage, dismissal of her claims are not warranted. See the decision here.

“You get a rest break every four hours,” the seasoned warehouseman told me back in the 1970’s.  He knew everything. I just assumed he was right about this, too. But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours. But, there is a regulation encouraging employers to provide a rest break every so often. See 29 C.F.R. Sec. 785.18.This regulation tells employers that rest breaks improve efficiency. The regulation states that rest breaks of 5 to 20 minutes are common in industry. Any such rest break must be compensated. But, no rest break is required.

The regulations do provide that if a meal break is provided, it must be free of work duties. See 29 C.F.R. Sec. 785.19. Federal regulations do not require meal breaks. See Department of Labor’s Questions and Answers about the Fair Labor Standards Act here.

I had a dream a couple of nights ago in which I visited the netherworld. Felt this overwhelming desire to assure those brave men buried at the Aisne-Marne American cemetery in France that the President’s comments were wrong, all wrong. For those of us with a modest bit of PTSD, Pres. Trump’s comments stung. Those comments remind us that there are some folks in this country who do not understand and do not respect our service. Those comments by the President ring true partly because they are consistent with how the President has treated veterans and their families in the past. In the public past, with no need for anonymous sources.

In 2015, he famously said John McCain was not a hero, because he was captured. As though we always have a choice about being captured.

In 2016, he attacked a Gold Star family for days because Kizr Khan dared to criticize then Candidate Trump. In 2017, He called the widow of SGT La David Johnson, who had just been killed in Africa. Clumsily, he told her that SGT Johnson knew what he signed up for. Even worse, he struggled to recall SGT Johnson’s name. …. If you cannot recall the name of the fallen, do not bother to make the call. SGT Johnson and his widow were black. Let us hope that did not make a difference.

In June, 2017, Pres. Trump called the family of SGT Dillon Balridge after he was killed in Afghanistan. Chris Balridge, the father, mentioned they were having trouble obtaining SGT Balridge’s death benefits. Pres. Trump said he would personally send a check. The President said, more or less, that no other president had ever done this before. Three months later, the check still had not arrived and was mentioned in the Washington Post. Then the President finally made good on this odd promise.

Only some 4 or 5 times has Pres. Trump met the remains of fallen soldiers at Dover AFB. Dover is the place they come form overseas. It is not necessary that he attend the ceremony at Dover, but he has bragged that he has done so “many” times.  In 2017, he was there when the remains of SEAL Ryan Owens arrived. The father, Bill Owens refused to shake the President’s hand and told him he got Ryan killed for no reason. In a recent ad for Vote Vets, Bill Owens says the President made the decision to launch that raid over dinner with political advisors, not in any sort of situation room.  He made  approved the raid for no large tactical purpose, but to simply be a “big man at war,” said the Gold Star father. Bill Owens warns the country not to trust Pres. Trump. See Bill Owens’ ad here.

And, sure enough, in a State of the Union address soon after that raid, Pres. Trump had Ryan Owens’ widow attend. He sensationalized her presence in the midst of her grief.

In 2018, he sent active duty troops to the border to emplace concertina wire and paint the wall. Neither duty requires military expertise. He kept them there through Christmas. Again for no apparent strategic purpose.

In 2019, 11 U.S. soldiers suffered concussions after missile attacks in  Iran. The President minimized their injuries, saying they simply had headaches. But, of course, we know today that concussions do sometimes lead to traumatic brain injuries.

When the captain of the U.S. Theodore Roosevelt took extreme actions to protect his crew from the coronavirus, the president disparaged the captain in a series of tweets. The captain was soon relieved of command. Relived from command generally ends a career.

The President has disparaged the service of John McCain over and over. He disparaged American heroes, like Adm. Bill McRaven, Gen. James Mattis, Gen. John Kelly, Gen. Stanley McChrystal. See The Atlantic story here for more information. This is a President who pays lip service, but little else.



There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

1. How old are you? Be very careful about asking this question. There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

In Wilhite v. HE Butt Co., 812 S.W.2d 1 (Tex.App. Corpus Christi 1991), the employee was accused of sexual harassment. His employment was terminated after many years at HEB. Mr. Wilhite sued for defamation and invasion or privacy. The district court granted summary judgment regarding the invasion of privacy.

On appeal, the Corpus Christi Court of Appeals found that summary judgment to be error, sort of. Texas, said the court, recognizes a tort known as intrusion upon a person’s seclusion or solitude, or into his private affairs. Physical acts such as eavesdropping on a conversation or physical invasion of a person’s property are associated with this sort of invasion of privacy. The court found that the plaintiff did not allege this sort of privacy invasion. Instead, Mr. Wilhite described his employer not allowing him to confront his accusers and by invading his private life by trying to control what he could do or not do. There was no physical invasion of the plaintiff’s privacy by his employer.

The Court noted that the plaintiff’s description sounded more like the torts of 1) disclosure of embarrassing facts or 2) publicity which places the person in a false light. But, said the court, the HEB officials did not make public any private acts or accusations. So, summary judgment was appropriate. So, the court of appeals affirmed the summary judgment. See the Wilhite decision here.

The decision then recognizes that invasion of privacy at work can occur if the employer eavesdrop on conversations or invades an employee’s seclusion or solitude. The question then becomes at work, what are those areas of seclusion?

One case that answers the question is K-Mart Corp. Store No. 7441 v. Trotti, 677 S.W.2d 632 (Tex.App. Hou. 1984). That decision found that a worker did have an expectation of privacy in his locker, which the employer provided. The locker was used to store personal effects. The lockers were sometimes locked, sometimes not. In this instance, the employee did lock her locker, with her purse inside. Later, she found the locker open and her purse had been ransacked. The manager had opened all the lockers, because he believed some unknown employee had stolen a watch.

This invasion of privacy amounted to an intrusion of the plaintiff’s seclusion, said the court. In providing her own lock with the employer’s consent, the employee showed a legitimate expectation of privacy to the locker and the contents of the locker. See the decision in the Trotti case here.

Be Safe.

What do you do if your employer refuses to take precautions for the COVID-19 virus? Mike Jackson chose to continue working for his employer, Briggs & Stratton, in Wisconsin. In April and May, Briggs & Stratton was not requiring face masks. Workers were working face-to-face on the assembly line. Managers rarely wore masks. The company started to require face masks only in late July when masks became a state requirement.

Mr. Jackson had four young children to support. He could not afford to miss work due to illness. He believed he would be fired if he called in sick. So, he worked until he collapsed at work. He was sent home. Two days later, he was back at work. He collapsed at work and was sent to the hospital. He then tested positive for the coronavirus. He died ten days later. See CBS news report.

In mid-April, most of the workers walked off the job to protest the lack of safety precautions. But, that brought no changes. Sen. Mitch McConnell and Sen. john Cornyn want to pass a law protecting employers from coronavirus liability. As I have mentioned before, it would be very difficult to show a worker contracted the virus at work. Sen. McConnell’s fears of an avalanche of lawsuits lack basis. The senators are seeking a provision that would protect employers who make a good faith effort to follow state and local health guidelines.

What happens when an employer requires everyone to come to work, but the COVID-19 continues to spread? After the initial shut-down, Valero Energy Corp. required all of its 1800 office workers to report to work by June 1, 2020. In the past month, 32 of those employees have tested positive for COVID-19. Several workers have asked why they cannot work from home, but the company has not provided an answer. Many employees said they were able to work effectively from home during the shut-down. One employee was quoted as saying some jobs cannot be performed from home, but the majority of the positions can work just as well from home.

Initially in June, the company made wearing a mask optional. But, at the end of June, the employer required employees to wear a mask if they could not maintain social distances. But, said one employee, at that point, no one was wearing a mask at work. And, there was no social distancing, as you walk through the halls or visit the restroom. The company has posted hand-sanitizer stations throughout the complex. Each employee was issued hand-sanitizer, wipes and masks upon their return to work. But, that alone has not been enough. See San Antonio Express News report here.

Working From Home

As I have mentioned in other posts, employers are generally opposed to folks working from home, even though in the pre-pandemic days, working from home is done on occasion and it generally work well. See my prior posts here and here. Deep down, I think most employers just do not trust their employees. Unfortunately, that inability to find a trust level may imperil lives. People in San Antonio area very concerned about bringing the virus home. My firm has received many phone calls from folks concerned about an unsafe working environment.

As I have mentioned before, if working from home is a necessary accommodation, then a worker is likely entitled to work from home if s/he can still perform the functions of the position.

Be Safe.

This past week, the US Supreme Court addressed a nagging question, how far does the ministerial exception to Title VII go? The problem occurs in religious schools. A teacher may teach a wide range of subjects, with only 10% of her time devoted to teaching religious subjects. Is that teacher subject to the minister exception of Title VII? In Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267 (7/8/2020), the U.S. Supreme Court found that two fifth grade teachers were subject to the religious exception of Title VII. Therefore, they could not bring a suit for age discrimination. Both teachers taught religion as part of their duties. Both attended worship with their students. Both prayed with their students. And, both were required to model certain behavior for their students.

The Supreme Court found the Ninth Circuit erred in focusing on a rigid formula, such as the lack of clerical job titles and the lack of formal religious training for both women. The court held it did not matter if the teacher espoused the religion of the school. Too, said the higher court, the Ninth Circuit placed too much weight on whether the teachers simply taught from a book or applied “close” spiritual guidance to their students.

These two teachers were the only teachers for their fifth grade classes. That meant they taught every class for those students. The case might have turned out differently if the class was at a higher grade level and the teachers did not teach religion, at all.

See the decision here.

Be Safe.