Author Archives: dholmes

What Are the Rights of an Employee on FMLA Leave?

Let’s assume that an employee is entitled to leave under the Family and Medical Leave Act.  What exactly are the employee’s rights? The discussion in this guide assumes that the employee has sought leave for a serious medical condition.  If the employee has obtained leave for, say, the birth of a child, then the rules are essentially… Read More »

What Is a “Serious Health Condition” Under the FMLA?

The FMLA gives employees a right to take unpaid leave if they have a “serious health condition” that renders them unable to perform the functions of their job.  This article is a simplified guide for determining when that provision applies. 1. Does every employee have a right to leave if they have a serious health condition?… Read More »

Senator Grassley Criticizes Proposed New IRS Whistleblower Regulations

The Internal Revenue Code has contained a limited qui tam whistleblower provision for many years. The Tax Relief and Health Care Act of 2006 greatly expanded these provisions.  The new provisions are contained in section 7623(b) of the Code.  Among other things, a whistleblower can receive an awared equal to 15% to 30% of the… Read More »

Can an At-Will Employee Sue for Fraud Arising from a Termination? The Texas Supreme Court Will Decide.

The Fifth Circuit has certified two interesting questions regarding the at-will employment rule to the Texas Supreme Court.  Curiously, the case arises out of a union dispute over which the Texas Supreme Court would normally have no jurisdiction. The plaintiffs are 63 former employees at DuPont’s La Porte, Texas facility.  Most of the plaintiffs were union members… Read More »

Fifth Circuit: Parking Attendant Applicant Failed to Show Pretext When Denied a Job Based on Graded Interviews

Gonzalez v. City of San Antonio, No. 12-50472 (5th Cir. March 12, 2013) (unpublished), is yet another case that shows the weight that the Fifth Circuit is giving to selection processes that are based on graded interviews.  In another case decided just a week ago, the Fifth Circuit rejected race and national origin discrimination claims in… Read More »

Commentary on the NBA Lockout

On July 1, 2011, the NBA locked out its players.  This led to a labor battle that lasted for almost five months, resulting in the cancellation of about a quarter of the season.  The labor battle included unfair labor practices charges, mediation, extensive negotiations, the decertification of the players’ association, and the filing of antitrust suits…. Read More »

What Is Disability Discrimination in Texas?

This is a short guide to the principles of law that govern claims for employment discrimination based on disability status.  There are two statutes that apply: the Americans with Disabilities Act (ADA) and Chapter 21 of the Texas Labor Code. 1. What is a Disability? Until 2008, this was the key question in almost all… Read More »

Fifth Circuit: Indian Respiratory Therapists Failed to Establish Pretext

In Assariathu v. Lone Star Health Management Associates, L.P., No. 12-10730 (5th Cir. March 6, 2013) (unpublished), eight respiratory therapists of Indian ancestry sued the Dallas Regional Medical Center for race and national origin discrimination.  As part of a department restructuring, all respiratory therapists were required to re-interview for their jobs.  The head of the… Read More »

What Is Immigration-Related Discrimination?

One of the least well known employment discrimination provisions is found in the Immigration and Nationality Act, 8 U.S.C. § 1324b.  Here are the answers to some questions about the statute. 1. Which Employers Are Subject to Section 1324b? The statute applies to all employers with more than three employees. 2. Who Is Protected by… Read More »

The NLRB’s Facebook Decision: What Is Protected and What Is Not?

The impact of social media on the rights of employees has been a hotly debated subject for several years.  The NLRB raised the stakes with its recent decision in Hispanics United of Buffalo, Inc., No. 03–CA–027872 (Dec. 14, 2012).  This case has been widely discussed in the media, yet the the actual implications of the… Read More »