W. Gary Fowler 901 Main Street, Suite 6000 Dallas, Texas 75202 (214) 953-5922 (214) 953-5822 (fax)...

W. Gary Fowler901 Main Street, Suite 6000

Dallas, Texas 75202(214) 953-5922

(214) 953-5822 (fax)gfowler@jw.com

STATE OF THE LAW 2007:Trends, Observations, and Cases

Gary L. Ingram301 Commerce Street, Suite 2400

Fort Worth, Texas 76102(817) 334-7245

(817) 334-7290 (fax)gingram@jw.com

Trends: EEOC

Trend: 2006: EEOC and the Agencies: Less Charges but More Money

Trend 2007: Retaliation Continues to Grow

EEOC: Total Charges Down Since 1993

87,94291,189

87,529

77,990 80,680 79,591 77,444 79,896 80,84084,442

81,293 79,43275,428 75,768

0

10,000

20,000

30,000

40,000

50,000

60,000

70,000

80,000

90,000

100,000

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

EEOC: Retaliation Charges Up Since 1993

13,814

15,85317,070

16,080

18,19819,114 19,694

21,613 22,257 22,768 22,690 22,740 22,278 22,555

0

5,000

10,000

15,000

20,000

25,000

1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006

EEOC Policy Guidelines: Care Giving Employees

• Pre-Employment Inquiries

• Derogatory Comments

• Less Favorable Treatment After the Event

• How Treated Compared to Other Female Workers

• Job Promotions and Tracks

• Workplace Policy

• Asserted Reasons Credible

EEOC Policy Guidelines: Example

• Interview for marketing assistant job. Patricia is candidate. Interviewed by Bob. Patricia recent business school graduate.

• Bob: “How many kids do you have?”

• Patricia: None but plan to.

• Bob: “This position is demanding. How would you balance work and childcare responsibilities?”

EEOC Policy Guidelines: Example

• Patricia: “My husband and I will share responsibilities.”

• Bob: “That’s what they all say until it comes time to change the diapers.”

• After interview, Bob tells his secretary that he is impressed with Patricia but also notes that she plans to have kids and is concerned about whether she can “keep up.”

EEOC Policy Guidelines: Practice Pointers

• Training Is Important

• Documentation of Reasons Are Important

• Supervisors Cannot Rely upon Stereotypes But Only on Actual Performance

• Continued Complexity of Title VII, ADA, FMLA, and Other Statutory Protections

NLRB

• Standard for “Supervisor”—Why Important?

– Who Votes and Who Pays Dues

– Who Works During a Strike

• Use of Emails and PDAs in Union Organizing and Employee Communications

Federal: Supreme Court

• Ledbetter v. Goodyear Tire and Rubber Co. Inc.: When Title VII Actions for Pay Discrimination Must Be Filed

• Burlington Northern v. White: What Is an Adverse Employment Decision

Federal: Fifth Circuit and Courts of Appeals

• Corporate Relocation, Inc. v. Robert Martin: Injunctive Relief and Arbitration

• Cheatam v. Allstate Ins. Co.: Insurance Adjusters Exempt as Administrative Employees

• Murphy v. I.R.S.: Are Damages for Emotional Distress Taxable as Income? Impact on Settlement Agreements

Texas Supreme Court

• Alex Sheshunoff v. Johnson: Covenants Not to Compete Easier to Enforce

• Baylor University v. Coley: Change in Work Assignments Does Not Equal Constructive Discharge

• Baylor University v. Tom Sonnichsen: Discussions About Contract Do Not Constitute a Contract

Texas Supreme Court

• In re General Electric Capital Corp.: Jury Waivers Enforceable

• In re Dallas Peterbilt, Ltd.: Arbitration Compelled Where Employee Acknowledged Summary

• In re Dillard Dept. Stores, Inc.: Notice of Arbitration Policy Enough Even Where No Signed Acknowledgement

Texas Courts

• Texas Tech v. Finley: Letter to TWC is Enough To Be a “Charge of Discrimination”

• Santillan v. Wal-Mart Stores, Inc.: Walmart Defends Case on Employee’s Lack of Authorization to Work

• Hernandez v. AT&T: Workers Comp Absences Counted Toward Attendance Requirements

The Texas Legislature

• Restroom Access – Retail Establishments (Passed)– Retail establishments must allow a customer to use

employee toilet facility if:• No accessible public restroom• Use of employee toilet facility not a

safety/security risk• Customer provides evidence of medical

condition• Three or more employees working at the time

The Texas Legislature

• Volunteer Emergency Responders (Passed)– Employer may not terminate, suspend or

discriminate against employee who is a volunteer emergency responder and who is absent from or late to work because the employee is responding to an emergency

– Does not apply to employers with fewer than 50 employees

The Texas Legislature

• Re-employment of Service Members (Passed)– State version of USERRA– Prevents termination of state service members

(National Guard) because of training or call to duty– Service member entitled to return to same position

with same benefits– Service member must give written or actual notice

of intent to return to employment

The Texas Legislature

• Commercial Vehicle Drivers (Effective 9-1-07)– Employer liable for Class B misdemeanor if

employee allowed to drive a commercial motor vehicle and:• Employee failed drug test or other test• Employee is disqualified from driving• Car is out-of-service• Employer is subject to an out-of-service

order that affects the driver of the vehicle

The Texas Legislature• Prevailing Wage Flexibility (Passed)

– Public entities can determine prevailing wage rate by:

• Conducting own surveys

• Using a DOL determination made at any time

• Employer-Based Daycare – Small Businesses (Passed)– Establishes separate guidelines for smaller

businesses that provide onsite childcare

The Texas Legislature

• Concealed Handguns Act (Not Passed)

• Minimum Wage Increase (Not Passed)

Congress

• Employee Free Choice Act of 2007 (Proposed)– Easier for Unions to Obtain Recognition

– Increase Penalties on Employers

– Requires Binding Interest Arbitration if No CBA

• RESPECT Act of 2007 (Proposed)– Raise the Standard for “Supervisor”

– Bill Would Increase the Number of Potential Union Members

Congress

• Minimum Wage Increased (Passed).

• July 24, 2007 - $5.85

July 24, 2008 - $6.55

July 24, 2009 - $7.25