Articles Posted in Labor & Employment Law

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Hensel, the general contractor building a new Austin public library, maintained control over the worksite through on-site management personnel, Hensel's subcontractor, HEW, worked on the project’s East Screen Wall. HEW's sub-subcontractor, CVI, was to complete demolition and excavation for the Wall. A nearly vertical 12-foot wall of “Type C” soil developed. Occupational Safety and Health Administration (OSHA) regulations mandate systems to protect employees from cave-ins. No protective systems were in place. On a rainy morning in 2015, CVI was to reinstall rebar at the base of this wall of soil, preliminary to pouring concrete footings. Concerned about the weather and the instability of the wall, CVI owner Daniels sent his employees to work on another area. Hensel's superintendent instructed Daniels to return his employees to the excavation. Daniels sent an email to HEW’s senior project manager, who gave only a cursory reply. Daniels sent his employees back to the excavation. That day, an OSHA compliance officer discovered CVI employees working at the unprotected wall. The city inspector, Hensel’s superintendent, and HEW’s superintendent were present. OSHA cited CVI and Hensel for violating 29 C.F.R. 1926.652(a)(1), pursuant to its multi-employer citation policy. OSHA considered Hensel a “controlling employer” An ALJ agreed but found that Fifth Circuit precedent that “OSHA regulations protect only an employer’s own employees,” foreclosed the citation. The Fifth Circuit reversed, deferring to OSHA’s construction of 29 U.S.C. 651, as granting authority to issue citations to controlling employers. View "Acosta v. Hensel Phelps Construction Co." on Justia Law

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Plaintiff, who was injured on the job, filed suit against his employer for retaliation and age discrimination. After the case proceeded to trial, the district court granted the employer's renewed motion for judgment as a matter of law at the close of the evidence on the retaliation claim, but sent the age discrimination issue to the jury. The jury returned a verdict for the employer. The Fifth Circuit reversed and remanded the adverse ruling on the retaliation claim, holding that, under Texas law, sufficient evidence of retaliation was presented to support submission to the jury under Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451. The court reasoned that this outcome would be the same whether it considered the Continental Coffee list as "elements" or merely "factors." In this case, there was stark temporal proximity between plaintiff's injury and his termination, there was evidence to support the expression of a negative attitude and the treatment compared to similarly situated employees, and there was considerable evidence that would support a jury verdict in plaintiff's favor. View "Cristain v. Hunter Buildings and Manufacturing, LP" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment for the employer in an action alleging retaliation under Texas law. The court held that, although the district court erred by concluding that New Mexico law applied in this case, the protected conduct plaintiff described was not a but-for cause of their terminations. The court explained that an employee bringing a retaliation claim under the Texas Occupational Code must demonstrate that he would not have been terminated but for his protected conduct. In this case, plaintiffs' refusal to train a patient independently was not a necessary, or but-for, cause of the firings. View "Almeida v. Bio-Medical Applications of Texas, Inc." on Justia Law

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IberiaBank filed suit against defendant in state court under the Computer Fraud and Abuse Act (CFAA), seeking a declaratory judgment that IberiaBank was not required to pay defendant, a former employee, his success bonus. After the parties agreed to close arbitration and pursue claims in federal court, the district court granted summary judgment on some claims and, at a bench trial, a magistrate judge resolved the remaining claims. Both parties appealed. The Fifth Circuit held that the trial court did not clearly err by concluding that defendant breached the Change-in-Control Severance Agreement; that IberiaBank did not breach its employment agreement with defendant; and that defendant violated the CFAA because there was sufficient evidence to support the trial court's finding that defendant lacked authorization to delete IberiaBank files. The court declined to resolve whether there was a Louisiana Unfair Trade Practices Act violation in this case and remanded for the trial court to consider the claim. The court held that the district court correctly held that IberiaBank's litigation behavior did not demonstrate actual malice. Finally, the court affirmed the rulings on attorneys' fees. View "IberiaBank v. Broussard" on Justia Law

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Saybolt LP, a petroleum products company, used the fluctuating workweek (FWW) method to calculate overtime compensation for some of its oil and gas inspectors who worked radically varying hours each week. Plaintiffs, oil and gas inspectors, filed suit against Saybolt, alleging that the incentive payments precluded use of the FWW method and placed their employer in violation of the Fair Labor Standards Act (FLSA). The Fifth Circuit held that Saybolt failed to comply with the FWW method, and thus its use of that method to calculate the FWW inspectors' overtime premiums was erroneous; plaintiffs have not created an issue of disputed fact regarding Saybolt's willfulness; the district court erred in holding that Saybolt was judicially estopped from challenging plaintiffs' damages model; plaintiffs were entitled to an award of one and one-half times the "regular rate" instead of using the one-half multiplier that Saybolt claimed was appropriate; and the district court erred in adopting plaintiffs' damages methodology. Accordingly, the court affirmed in part, reversed in part, and remanded. View "Dacar v. Saybolt L.P." on Justia Law

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A Louisiana charter school did not qualify for the "political subdivision" exemption of the National Labor Relations Act and was therefore subject to the Act. In this case, petitioners challenged the NLRB's finding that petitioners, Louisiana charter school operators, committed an unfair labor practice and ordered it to recognize and bargain with the union. The Fifth Circuit denied the petition for review, holding that petitioners, like most other privately controlled employers, was subject to the Act because Louisiana chose to insulate its charters from the political process. View "Voices for International Business and Education, Inc. v. NLRB" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment to LRS in an action filed by plaintiff alleging that she was denied a promotion because of her race in violation of Title VII of the Civil Rights Act. The court held that it was undisputed that plaintiff established a prima facie case of employment discrimination, but LRS asserted a justification that was not pretextual. In this case, there was no evidence in the record of any discrimination in the promotion decision. The court explained that any difference in qualifications between the two candidates did not create a genuine issue of fact that plaintiff was clearly better qualified for the district supervisor position. The choice to value the other candidate's credentials over plaintiff's strengths was within the realm of reasonable business judgments. View "Roberson-King v. Louisiana Workforce Commission" on Justia Law

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The Fifth Circuit dismissed a petition for review challenging a ruling by the Benefits Review Board in a proceeding in which petitioner sought benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA). The court held that petitioner received substantial sums from a settlement with and judgment against third parties and that the required notice of the settlement was not given. Therefore, he was not entitled to benefits under the LHWCA. View "Parfait v. Director, Office of Workers' Compensation Programs" on Justia Law

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The Fifth Circuit affirmed the district court's grant of summary judgment for Southwest in an action filed by plaintiff under the Family Medical Leave Act (FMLA), alleging claims of interference and retaliation. The court held that the district court correctly determined that plaintiff failed to raise a genuine issue of material fact as to whether she provided the required notice to her employer to sustain her FMLA claims. Even if plaintiff had made a prima facie showing for her FMLA interference claim, she was still required, and failed, to raise a genuine issue of material fact as to whether Southwest's proffered nondiscriminatory reason for terminating her employment was merely pretextual. View "DeVoss v. Southwest Airlines Co." on Justia Law

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The Fifth Circuit affirmed the district court's dismissal of plaintiff's actions under the Federal Tort Claims Act (FTCA), alleging that his discharge by a VA hospital and its employees intentionally inflicted emotional distress upon him and tortiously interfered with his business relationships. The court held that the Civil Service Reform Act (CSRA) preempted plaintiff's FTCA tort claims relating to his discharge for alleged whistleblowing. Therefore, plaintiff could not bring his claim for lack of jurisdiction. View "Griener v. United States" on Justia Law