Author Archives: dholmes

The Fifth Circuit Clarifies the Rules for Mis-Named Employers in EEOC Charges

Most of the discrimination statutes require a mandatory administrative process as a prerequisite to filing a lawsuit.  The employee must file a charge of discrimination with the EEOC or TWC within a specified number of days, and then the agency is supposed to investigate the charge.  If the agency does not pursue the charge, it… Read More »

The FMLA and Employment Law Principles in the Family Law Context

This is a paper that I presented at the 4th Definitive Ad Litem Seminar on April 11-12, 2014.  The event was hosted by the Juvenile Law Section of the Houston Bar Association. How Employment Law Can Help You and Your Client in Adoption, Child Placement, and Other Family Court Matters The paper discusses three topics:… Read More »

When Is a Fired Employee Entitled to Receive Unpaid Commissions in Texas?

Consider this scenario: Employee A has worked in sales for Employer B for many years.  In addition to a small salary, Employee A gets a 4% commission on all sales.  On July 1, Employee A’s employment ends, either because Employee A quits or Employer B fires Employee A.  There are pending commissions from May and… Read More »

What Is a Wage Claim Under Texas Law?

1. How is a wage claim different from filing a lawsuit? If an employer fails to pay wages or other compensation to an employee, the employee can always file a lawsuit against the employer.  If the employee chooses to sue, then all of the usual rules relating to lawsuits apply. However, Texas law provides a… Read More »

Austin Court of Appeals Affirms Disparate Impact Judgment in Age Discrimination Case

Thirty-three City of Austin employees sued for age discrimination, claiming that the terms of their transfer from a defunct department to the Austin Police Department had a disparate impact on older workers. They won the case to a jury. On February 7, 2014, the Austin Court of Appeals affirmed the judgment in City of Austin… Read More »

What Is “Constructive Discharge” in Texas?

1. What is a constructive discharge? The typical scenario for an employment law case is that the employer has fired the employee. Assuming that the fired worker was an at-will employee, the question is whether the worker has a wrongful termination claim based on discrimination or retaliation. But what if the employer did not fire… Read More »

First Court of Appeals Vacates Temporary Injunction in Non-Compete/Trade Secrets Case Due to Lack of Specificity

Rule 683 of the Texas Rules of Civil Procedure provides that an injunction order “shall set forth the reasons for its issuance; shall be specific in terms; [and] shall describe in reasonable detail and not by reference to the complaint or other document, the act or acts sought to be restrained.” Notwithstanding that language, it… Read More »

Fifth Circuit Reverses a Jury Verdict in a Racial Harassment Case Because the Employer Took Prompt Remedial Action

When one employee harasses another employee on the basis of sex, race, or another protected classification, the employer is not automatically liable for the misconduct of the employee. Instead, vicarious liability attaches only if the employer knows (or should have known) about the harassment and fails to take prompt remedial action. The Fifth Circuit applied… Read More »

Fort Worth Court of Appeals Finds Non-Compete Unenforceable Due to Waiver and Overbreadth

In an unpublished opinion, the Fort Worth Court of Appeals found that a non-compete was unenforceable due to waiver and overbreath. Ally Financial, Inc. v. Gutierrez, No. 02-13-00108-CV (Tex. App. — Fort Worth Jan. 23, 2014). Gutierrez worked for Ally in Lewisville, Texas. Ally adopted a compensation incentive plan (CIP) under which certain employees (including… Read More »

Fourteenth Court of Appeals Holds that Equitable Estoppel Bars an Employer from Asserting the Statute of Limitations in an FLSA Case

The Fair Labor Standards Act requires employers to pay the minimum wage and overtime. The FLSA contains a two-year statute of limitations that can be extended to three years in the case of willful conduct. On January 28, 2014, the Fourteenth Court of Appeals affirmed a jury verdict that allowed the plaintiff to bypass the… Read More »