The National Labor Relations Board (“NLRB”) issued a decision in Cemex Construction Materials Pacific, LLC announcing a new framework for determining when employers are required to bargain with unions without a representation election. In the decision, the NLRB overruled the long-standing standard in Linden Lumber because, in the Cemex majority’s view, it was inadequate to
On August 18, 2023, the Fifth Circuit sitting en banc in Hamilton v. Dallas County unwound its long-held limitation that an adverse employment action must be an “ultimate employment decision” to be actionable under Title VII. The majority reasoned that this limitation was incongruent with the broad language of Section 703(a)(1), which states that “[i]t…
On February 6, 2019, the Fifth Circuit affirmed summary judgment in favor of an employer on claims that it discriminated against the plaintiff based on her transgender status. In Wittmer v. Phillips 66 Company, the plaintiff sued Phillips 66 Company for sex discrimination under Title VII in the Southern District of Texas, claiming that the company rescinded her offer of employment after learning she was transgender. The District Court granted the company’s motion for summary judgment because the plaintiff failed to establish a prima facie case of discrimination and failed to show that the employer’s reason for its decision was pretextual. In so ruling, the District Court assumed that Title VII prohibited discrimination based on transgender status and expressly stated that the Fifth Circuit had not addressed the issue.
On appeal, the Fifth Circuit Court of Appeals took notice of the fact that the Second, Sixth and Seventh Circuits have all held that Title VII protection extends to sexual orientation or transgender status over the last two years. However, the three-judge panel disagreed with the District Court’s statement that the Fifth Circuit had not previously ruled on the issue, noting that in Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979), the Fifth Circuit specifically held that Title VII does not prohibit sexual orientation discrimination. Ultimately, the panel did not reach the issue of Title VII’s coverage of sexual orientation or transgender discrimination because it affirmed the District Court’s determination that, even if protected, the plaintiff failed to establish a prima facie case of discrimination and also failed to offer evidence that the employer’s legitimate, nondiscriminatory reasons for its decision were pretextual.Continue Reading Fifth Circuit judge asserts Title VII does not prohibit sexual orientation and transgender discrimination
On November 8, 2018, the U.S. Department of Labor (DOL) re-issued an opinion letter rescinding the “80/20 Rule,” which prohibited employers from taking a tip credit if a tipped employee spent more than 20% of his or her working time on non-tipped work. The DOL’s new guidance provides restaurant and hospitality employers with clarity and a more practical approach regarding when a tip credit can be taken.
Under the Fair Labor Standards Act (FLSA), the tip credit allows employers to pay tipped employees not less than $2.13 per hour and to take a tip credit equal to the difference between that amount and the federal minimum wage. So, before an employer can take the tip credit, it must determine whether the employee is working in a tipped job.
If an employee works in separate jobs, one of which is tipped and the other of which is not, the employee has “dual jobs,” and the employer can only take the tip credit when the employee is working in the tipped job. For example, if an employee works at times as a waiter and at other times as a maintenance worker, the employer can take the tip credit only for the time the employee spends working as a waiter and must pay the full minimum wage for the time the employee spends working as a maintenance worker.Continue Reading Here’s a tip for you: DOL offers new tip credit guidance rescinding 80/20 rule
On Monday, May 21, 2018, the U.S. Supreme Court ruled that agreements between employers and employees providing for individualized arbitration proceedings are enforceable. The decision came in a trio of cases, all raising the issue of whether the Federal Arbitration’s Act’s saving clause, which removes the obligation to enforce an arbitration agreement in certain circumstances,…