By: Dennis P. Duffy1 In an en banc decision that the dissent predicted will wreck needless and excessive suffering to the “oyl biddness,” the Fifth Circuit held that a day rate—even for employees earning over $200k a year—does not meet the salary basis test for exempt status under the Fair Labor Standards Act (“FLSA”), unless the […]
Fifth Circuit Declares Day-Rate Workers, even Those Earning over $200K/Year, Not Exempt—Unless the Employer Also Pays a Weekly Guaranteed Amount
Employment Non-Compete Agreements: Are They Still Permitted in Light of President Biden’s Executive Order on Promoting Competition in the American Economy?
Yes, for the time being; there are no immediate changes to the law governing employment non-compete agreements. The Executive Order On July 9, 2021, The White House issued a 20-page, 72-initiative Executive Order, signed by President Biden. The overarching purpose of the Order is to create an “open and competitive economy” that allows businesses to […]
As Pandemic Eases, New DOL, OSHA, and TWC Rules Inform Both Employees and Employers
New DOL, OSHA, and TWC Rules Inform Both Employees and Employers, as Pandemic Eases[1] A. New Standard Issued by DOL Aimed at Protecting At-Risk Workers in Healthcare On June 10, 2021, the Department of Labor (“DOL”) issued a highly anticipated emergency temporary standard (“ETS”) setting workplace safety parameters for employers in the healthcare sector during […]
Texas “Anti-Vaccination Passport” Law
Texas “Anti-Vaccination Passport” Law: What Does It Mean For Employers?[1] On May 7th, 2021, Texas Governor Greg Abbott signed a law banning COVID-19 “vaccine passports” effective immediately. So, what does SB 968 mean for employers? Does SB 968 prevent an employer from requiring employees to show proof of vaccination? While both the law and its […]
How Employers Should Respond to SCOTUS’ “Exceeds Access” Computer Fraud Decision
Much has been written recently about the “new look” Supreme Court. On the heels of four 9-0 decisions favoring different sides of partisan divide, today we got Van Buren, a 6-3 decision delivered by Justice Amy Coney Barrett, joined by Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, with Thomas, Roberts, and Alito dissenting. Van Buren Van […]
Issue of Control Dictates Duty Owed to Subcontractor’s Employees
By: Colin Durham A general contractor owes a duty of care to its independent contractor’s employees only if the general contractor retains actual or contractual control over the means and methods of the independent contractor’s work according to the Texas Supreme Court. In December of 2013, Jose Hernandez was working for Capform, Inc. on a […]
Independent Contractor Status Further Defined in Hargrave v. Aim Directional Services
In a big win for the energy industry, and in particular the energy-service industry, Judge Morales of the Southern District of Texas—Corpus Christi Division—recently dismissed an overtime lawsuit brought by Plaintiff Marcus Hargrave, ultimately finding that he was an “independent contractor” and thus, AIM Directional Services (“AIM”) was not subject to the Fair Labor Standards […]
Termination of Employment when an Employee “Peacefully Protests.”
This COVID year plus has been a time of lockdowns and social distancing. However, along the way, people have been out in public, without necessarily social distancing, and protesting—vociferously and publicly, and, in some instances, as a part of larger riots, destruction of property, injury to others, and challenges to the political bodies in power. […]
Tips for Conducting Effective Internal Investigations – Including “Zoom” Investigations – Part II
The need to conduct internal investigations has continued, even in a COVID and remote environment. In Part I of this post, we discussed important decisions to make prior to the investigation, ensuring that the witness’ interview area maintains confidentiality, establishing a style of conducting the witness interview, and setting the expectation for confidentiality. Part II […]
Tips for Conducting Effective Internal Investigations —Including “Zoom” Investigations — Part I
By: Dennis P. Duffy Despite COVID-19, the need to conduct internal investigations persists. Indeed, employers have seen an increase in whistleblower and similar complaints that require employer investigation. Due to COVID-related restrictions, an increasing number of employer investigations are being conducted remotely using Zoom, Skype, FaceTime and other communications technology. In this initial post, we […]