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News Wrongful Termination, Workers' Compensation and Work Injuries

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]

​Employee Benefits Plans—Accidental Injury v. Sickness

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

Employee Benefits Plans—Accidental Injury v. Sickness. Ramirez v. United of Omaha Life Ins. Co., 872 F.3d 721 (5th Cir. 2017)—In Texas, employers can opt out of workers’ compensation, and in doing so they typically purchase “accidental” injury insurance for employees. However, privately negotiated and purchased accidental injury insurance might not be as comprehensive as workers’ compensation insurance. In this case, an employee’s work-related accidental injury was compounde [read more]

​Administrative Hearing Officers—“Employee” Status—Texas Workforce Commission

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

Administrative Hearing Officers—“Employee” Status—Texas Workforce Commission v. Harris County Appraisal District, 519 S.W.3d 113 (Tex. 2017)—Members of the Harris County Appraisal Review Board are “employees” under Tex. Lab. Code 207.004, and board members terminated by the Appraisal District are entitled to unemployment compensation. The court rejected the District’s argument that board members are so free of control as to be analogous to independent contractors exclu [read more]

​Restraints Against Commerce—Contractual Penalty for Resignation

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

Restraints Against Commerce—Contractual Penalty for Resignation—Rieves v. Buc-ee’s Ltd., ___ S.W.3d ___, 2017 WL 4557796 (Tex. App—Houston [14th Dist.] 2017)—The employer hired the plaintiff as an hourly-rated, “at will” employee but subject to a contract requiring her to repay all her “fixed monthly bonus,” which was a substantial part of her total compensation, if her employment terminated for “any reason” before the end of five years or if she failed to g [read more]

Retaliation—Proof of Causation—Discrimination in Promotion

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

Retaliation—Proof of Causation—Discrimination in Promotion—Metropolitan Transit Authority of Harris County v. Ridley, ___ S.W.3d ___, 2017 WL 3910160 (Tex. App.—Houston [1st Dist.] 2017)—In a Chapter 21 suit against a public employer the plaintiff bears elevated pleading requirements to overcome the employer’s sovereign immunity defense. In this case the court holds that the plaintiff failed to present sufficient facts to show a causal link between her prot [read more]

​Time Limit for Filing Administrative Complaint—Effect of Pending Grievance or Appeal

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

Time Limit for Filing Administrative Complaint—Effect of Pending Grievance or Appeal—Alamo Community College District v. Ryan, 2017 WL 4942858 (Tex. App.—San Antonio 2017) (not for publication)—The 180 day time period for filing an administrative complaint under Chapter 21 begins to run when a plaintiff learns of an adverse action or of the decision to take an adverse action, and the time to file a complaint is not suspended by the pendency of the plaintiff’s int [read more]

​Late Wage Payment—Exhaustion of Administrative Remedies

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

Late Wage Payment—Exhaustion of Administrative Remedies—Garrett v. Prologistix, 2017 WL 4782508 (Tex. App.—Houston [1st Dist.] 2017) (not for publication)—The Texas Labor Code requires an employer to pay “in full” all wages due to an employee within six days of the termination of employment. Tex. Lab. Code § 61.014. If the employer pays in full a few days late, is it still liable to the employee for any amount? Section 61.014 does not indicate any liability or co [read more]

​Whistleblower Act—Evidence of Retaliatory Intent

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

Whistleblower Act—Evidence of Retaliatory Intent—Office of the Attorney General of Texas v. Rodriguez, ___ S.W.3d ___, 2017 WL 4586128 (Tex. App.—El Paso 2017)—The usual “whistleblower” involves an employee’s report implicating higher managers who then use their superior managerial power to retaliate against the whistleblower. In this case, however, the whistleblower reported her suspicion of a subordinate’s wrongdoing. When the employer agency subsequently disci [read more]

Whistleblower Act—Grievance Procedure—Public School Teachers

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

Whistleblower Act—Grievance Procedure—Public School Teachers—Whitney v. El Paso Independent School District, ___ S.W.3d ___, 2017 WL 3614149 (Tex. App.—El Paso 2017)—The Whistleblower Act provides that an employee whistleblower must file a grievance with an employer agency before filing a lawsuit under the Act. The termination appeal process set out in the Education Code serves as a school district’s grievance procedure for this purpose. Therefore, the teac [read more]