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News Wrongful Termination, Workers' Compensation and Work Injuries

Wrongful Death -New Mexico

Written by Mr. Roger Davie on Tuesday, 13 Mar 2018.

New Mexico recently added a new rule of civil procedure for wrongful death claims.  Section 1-105 provides that certain notice provisions are to be provided statutory beneficiaries.  The rule states in part: B. Required notice; timing. Upon entry of an order appointing a personal representative under the Wrongful Death Act, the personal representative shall provide notice under Rule 1-004 NMRA to all known or reasonably ascertainable statutory beneficiaries of the inf [read more]

Judge must review video before excluding its use at trial.

Written by Mr. Roger Davie on Tuesday, 13 Mar 2018.

Texas Supreme Court provides guidance on video use in workers’ comp case When can video footage serve as evidence in a personal-injury suit that arises from a workplace accident? That is a question that was recently discussed in a case that made it to the highest court in Texas — the Texas Supreme Court. The case involves a senior mechanic that suffered a back injury whileworking aboard an offshore drilling rig. The worker suffered a back injury whilelifting heavy equipment. [read more]

Americans with Disabilities Act—Prescription Medications—Drug Testing

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Barnard v. L-3 Communications Integrated Systems L.P., 2017 WL 3726764 (N.D. Tex. 2017)—This case is an example of a growing issue in employment: drug testing for lawful prescription medications. The Americans with Disabilities Act does not prohibit drug testing for “illegal” drug use. Moreover, it allows post hiring medical examinations and inquiries that are job related and consistent with business necessity. But lawful employee use of prescription drugs presents a chain of [read more]

ADA—Prohibited Inquiries.

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Mir v. L-3 Communications Integrated Systems, L.P., 2017 U.S. Dist. LEXIS 185426 (N.D. Tex. 2017). There was an issue of fact precluding summary judgement with respect to the plaintiff’s ADA improper inquiry claim, where the plaintiff walked with a limp and used a cane as a result of an impairment, the employer interviewed the plaintiff for a job, and the employer allegedly asked the plaintiff about the nature and extent of physical limitations related to his hip.

EEOC—Subpoena—Attorney-Client Privilege.

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

EEOC v. BDO USA, L.L.P., 2017 U.S. App. LEXIS 23067 (5th Cir. 2017). The EEOC subpoenaed certain documents and the employer asserted that some of the documents were protected by the attorney-client privilege because they involved communications between a corporate employee and the corporation’s attorney. The district court granted the employer’s motion for a protective order after requiring the EEOC to disprove the employer’s assertion of the attorney-client privilege as to the withheld [read more]

Title VII—Retaliation—Causation

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Atkins v. Southeast Community Health System, 2017 U.S. App. LEXIS 21729 (5th Cir. 2017) (unpublished). The plaintiff’s Title VII retaliation claim failed as a matter of law because the temporal proximity of ten months between the employer’s knowledge of the filing of the plaintiff’s EEOC charge and the adverse employment action was insufficient by itself to prove causation.

Title VII—Chapter 21—Limitations Period—Relation-Back Doctrine.

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Barrett v. American Airlines, Inc., 2017 U.S. App. LEXIS 21336 (5th Cir. 2017) (unpublished). After completing administrative proceedings the plaintiff filed a Chapter 21 discrimination claim in a state court alleging only state law claims. But the state law claim was barred because it was not filed within two years of the filing of the state administrative charge. Tex. Lab. Code § 21.256. The plaintiff then amended her petition to add Title VII claims. After removal to federal court, t [read more]

​Title VII—Exhaustion of Administrative Remedies—What Constitutes a “Charge.”

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Title VII—Exhaustion of Administrative Remedies—What Constitutes a “Charge.” Gonzales v. Pan American Laboratories, LLC, 2017 U.S. Dist. LEXIS 173899 (N.D. Tex. 2017). The plaintiff’s submission of a signed intake questionnaire and narrative to the EEOC did not satisfy the requirement of a verified charge of discrimination. Amon other things, the employer did not receive notice of the intake questionnaire and narrative or of the contents of the allegations of discrimina [read more]

Fair Labor Standards —White Collar Exemption—Expert Witness Testimony.

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Fair Labor Standards —White Collar Exemption—Expert Witness Testimony. Beck v. Access E Forms, LP, 2017 U.S. Dist. LEXIS 192741 (E.D. Tex. 2017). The district court granted the employer’s motion to exclude the plaintiff’s expert witness testimony. The expert offered legal analysis and conclusions about the applicability of a white collar exemption for the plaintiff, but such testimony about the meaning of the law invades the province of the court and is not admissible.

​Fair Labor Standards Act—Pre-Shift Wait Time.

Written by Mr. Roger Davie on Monday, 22 Jan 2018.

Fair Labor Standards Act—Pre-Shift Wait Time. Bridges v. Empire Scaffold, L.L.C., 875 F.3d 222 (5th Cir. 2017). The Portal-to-Portal Act provides rules for determining whether time engaged in certain workrelated activity counts for purposes of minimum wage and overtime compensation under the FLSA. Among other things, the Act provides that time engaged in activities incidental to work but occurring before an employee’s principal work activity are not compensable for FLSA purposes. [read more]