Fifth Circuit

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On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements…

As noted in our prior post regarding the Sixth Circuit handling the challenges to the OSHA Emergency Temporary Standard (the ETS), several of the parties targeting the OSHA ETS filed or joined various petitions requesting an initial hearing en banc. On December 15, 2021, the Sixth Circuit denied the various petitions for initial hearing en banc because there was not majority support of the active judges. It appears that it was a very close call – of the 16 active judges, eight were for en banc and eight were against it. As a result, the case will proceed before the typical three-judge panel. The three judges have been assigned; however, we do not know who they are at this point.

Judge Moore issued a concurring opinion recognizing the inefficiencies that go along with an en banc hearing. The concurrence noted that the case “require[s] focused consideration by a devoted panel,” and that an en banc hearing “would have strained the resources of the sixteen active judges.”

There are two dissenting opinions. Chief Judge Sutton’s dissent recognizes that, with respect to the initial hearing en banc, “[t]his is an extraordinary case, suitable for an extraordinary procedure.” But he also notes that the Sixth Circuit “likely will not be the final decisionmakers in this case, given the prospect of review by the U.S. Supreme Court.”   
Continue Reading OSHA ETS: Sixth Circuit denies initial hearing en banc

On November 16, 2021, the Sixth Circuit was selected via a lottery to hear the consolidated challenges made against the recent OSHA Emergency Temporary Standard (the ETS). As background, on November 5, 2021, OSHA published the ETS that would require most private employers with 100 or more employees to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing.

While all eyes had previously been on the Fifth Circuit, it is now the Sixth Circuit that’s in the spotlight. Not surprisingly, there has been a flurry of activity in the case. There are currently two main issues pending before the court that will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting that the full court – and not just a three-judge panel – decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.
Continue Reading OSHA COVID-19 rule: Sixth Circuit case status update

The enforceability of employment non-competes in Texas is governed by the Texas Covenants Not to Compete Act.  If a non-compete covenant is found to be overbroad, “the court shall reform the covenant to the extent necessary to cause” the covenant to be reasonable.  Tex. Bus. & Com. Code § 15.51(c).  The Texas Supreme Court has yet to address whether reformation of an overbroad non-compete restriction is appropriate at the temporary injunction stage or whether reformation is only a final remedy after a trial on the merits.  In a recent published opinion, the Fifth Circuit squarely examined this issue.  Calhoun v. Jack Doheny Companies, Inc., No. 20-20068, — F.3d —, 2020 U.S. App. LEXIS 25001 (5th Cir. Aug. 7, 2020).
Continue Reading Fifth Circuit says Texas trial court should have considered reforming an overbroad non-compete at the preliminary injunction stage

The Fair Labor Standards Act (FLSA) exempts certain highly-compensated employees (HCEs) from the requirement that they receive overtime pay for hours worked over 40 in a workweek.  To be considered highly compensated, the employee must receive both (1) at least $684 per week paid on a salary or fee basis; and (2) at least $107,432 in total annual compensation.  To satisfy the HCE exemption, the employee must also (1) customarily and regularly perform any one or more of the exempt duties or responsibilities of an executive, administrative or professional employee; and (2) perform office or non-manual work as part of his or her primary duties.

In a recent opinion, the Fifth Circuit examined the job duties required to satisfy the HCE  exemption.  Smith v. Ochsner Health Sys., No. 18-31264, — F.3d –, 2020 WL 1897186 (5th Cir. Apr. 17, 2020).  Smith, a former organ procurement coordinator for Ochsner, sued for overtime pay under the FLSA.  In response, Ochsner asserted the HCE exemption, arguing that Smith performed one or more administrative duties and received the required level of compensation.  Smith did not contest that he met the compensation requirements, but argued that he did not perform the duties required to satisfy the HCE exemption because he was required to follow exact procedures in performing his organ procurement work and, thus, did not exercise discretion and independent judgment as required to establish the administrative exemption.
Continue Reading Fifth Circuit examines the job duties required for the highly-compensated employee exemption from overtime pay under the FLSA

The Fair Labor Standards Act (FLSA) exempts employees with certain executive, administrative, or professional job duties from the requirement that they receive overtime pay for hours worked over 40 in a workweek. Determining whether one or more of these “white collar” exemptions apply to a particular employee requires a fact-intensive analysis of the employee’s job duties. But there is another, sometimes overlooked, requirement: the employee must be compensated on a “salary basis” at a rate of not less than $684 per week. 29 C.F.R. § 541.600(a). An employee is paid on a salary basis if the employee regularly receives, on a weekly or less frequent basis, a predetermined amount which “is not subject to reduction because of variations in the quality or quantity of the work performed.” 29 C.F.R. § 541.602(a). Employers who make improper deductions from their employees’ salaries will lose the ability to claim that the executive, administrative, and professional exemptions apply if the facts demonstrate that they did not pay the employee on a salary basis. 29 C.F.R. § 541.603.

There has been a substantial amount of litigation regarding the types and frequency of deductions from an otherwise exempt employee’s salary that will cause an employer to lose the ability to claim that the white collar exemptions apply. One area of contention has been whether an employer’s policy stating that it will make improper deductions from an employee’s salary is sufficient to defeat exempt status, or whether there must be an actual practice of making such deductions for the employer to lose the exemption. Previously, courts followed the Secretary of Labor’s view that, if an employer’s policy created a “significant likelihood” of improper salary deductions, this could result in a loss of exempt status. Auer v. Robbins, 519 U.S. 452 (1997). But the Department of Labor has since promulgated regulations stating that the focus is on “an actual practice of making improper deductions.” 29 C.F.R. § 541.603.
Continue Reading Fifth Circuit clarifies when improper pay deductions make an employee ineligible for exemptions from overtime under the FLSA