Category Archives: Recent Developments

Fifth Circuit Grants Rehearing En Banc in a Same-Sex Harassment Case

The Fifth Circuit has announced that it will rehear a same-sex harassment case en banc.  The case is EEOC v. Boh Brothers Construction Co., No. 11-30770.  The issue is whether a plaintiff can establish gender discrimination based solely on sexual stereotyping. The panel decision described the facts as follows: Kerry Woods began working as an… Read More »

First Court of Appeals Rejects “Continuation” Theory of Successor Liability Under Title VII

What happens when an employment discrimination plantiff obtains a judgment against a corporate defendant, but the owner of the company puts the corporation into bankruptcy and continues the business with a new corporation?  The First Court of Appeals addressed this issue in E-Quest Management, LLC v. Shaw, No. 01-11-00296-CV (Tex. App. — Houston [1st Dist.] March… Read More »

Senate Bill 953: Will Texas Finally Adopt the Uniform Trade Secrets Act?

Senator John Carona of Dallas has introduced Senate Bill 953 in the Texas legislature.  SB 953 would adopt the Uniform Trade Secrets Act, which is a standard set of state laws governing trade secrets.  At present, Texas is one of only four states that has not adopted the UTSA. The UTSA is not significantly different… 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Gonzalez v. City of San Antonio, No. 12-50472 (5th Cir. March 12, 2013) (unpublished), is yet another case that shows the weight that the Fifth Circuit is giving to selection processes that are based on graded interviews.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 »

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 »

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 »

First Court of Appeals Construes an Executive Employment Agreement and Restricted Stock/Stock Option Agreements in Favor of the Employee

Today, the First Court of Appeals issued its decision in Hercules Offshore, Inc. v. Guthrie, No. 01-10-00968-CV (Tex. App. — Houston Feb. 28. 2013).  Ms. Guthrie entered into an Executive Employment Agreement.  The Agreement provided that, if Ms. Guthrie was terminated other than for cause with 24 months after a change of control for the… Read More »

NLRB: A Houston Employer Violated the NLRA by Firing a Non-Union Employee for Discussing Salary Information with Other Employees

A recent NLRB case provides an excellent illustration of the potential effect of section 7 of the NLRA in a non-union environment.  The employer, Jones & Carter, Inc., is a Houston engineering firm.  Lynda Teare, who was a training coordinator, discussed salary information with two other employees.  She was then terminated.  She filed a charge… Read More »