The Fifth Circuit Rules that the EEOC’s Guidance Limiting the Use of Criminal History is Unenforceable — What Does this Mean for Private Employers?

On August 6, 2019, in State of Texas v. Equal Employment Opportunity Commission, the United States Court of Appeals for the Fifth Circuit ruled that the Equal Employment Opportunity Commission (“EEOC”) exceeded its authority in issuing its Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII of the …read more »

Three Things Employers Need to Know Now About EEO-1 Component 2 Pay Data

Most employers are familiar with their EEO-1 reporting obligations, but the new EEO-1 Component 2 data obligations have created confusion.  EEO-1 Component 2 data is pay and hours worked data, including matching demographic data, that the EEOC is requiring some employers to submit. The agency’s stated intent for collecting the data is to determine whether …read more »

Stop And Look Both Ways: Your No-Fault Attendance Policy May Be Creating Risk Under The FMLA

A recent federal case decided in the Sixth Circuit (covering Kentucky, Michigan, Ohio, and Tennessee) is a good reminder for employers covered by the Family Medical Leave Act (“FMLA”) to periodically review their attendance policies to make sure they comply with the FMLA in all respects. In Dyer v. Ventra Sandusky, No. 18-3802 (Aug. 8, …read more »

Four M2D Attorneys Named as 2019 Texas Super Lawyers or Rising Stars

This year, four M2D attorneys were named as Texas Super Lawyers or Rising Stars: Mike Muskat, Super Lawyer in Employment & Labor Michelle Mahony, Super Lawyer in Employment & Labor and Employment Litigation Defense Corey Devine, Rising Star in Employment Litigation Defense Daniel Lenhoff, Rising Star in Employment Litigation Defense Super Lawyers, a Thomson Reuters …read more »

Forthcoming Changes to Clarify What Is and Is Not Included in the FLSA Regular Rate

In March of this year, the United States Department of Labor (“DOL”) issued the first proposed rule within half a century that would amend the way overtime is calculated under the Fair Labor Standards Act (“FLSA”). Facially simple but devious in the details, nearly every employer is familiar with the FLSA’s “regular rate” used to …read more »

A Primer on Legal Protections for LGBT Employees: Past, Present, and Future (Part 2)

This is the second installment in a three-part series examining legal protections for gay, lesbian, bisexual, and transgender employees, written in anticipation of the U.S. Supreme Court’s likely upcoming decision on whether Title VII’s protections are broad enough to forbid discrimination based on sexual orientation and gender identity. Part 1 of this series examined the …read more »

The Four Most Common Errors When Tracking Employee Work Time and What to Do About Them

Many of the rules of the Fair Labor Standards Act and similar state laws regarding the payment of non-exempt employees are notoriously complex and are often misapplied.  Even seemingly minor errors can become costly if they apply to groups of non-exempt employees and become the subject of a Department of Labor investigation or class action …read more »

Supreme Court Cautions Employers Not to Delay Asserting Failure to Exhaust Administrative Remedies Defense in Title VII Cases

Most federal laws prohibiting discrimination and retaliation, such as Title VII of the Civil Rights Act of 1964 (“Title VII”), require plaintiffs to first file an administrative charge alleging discrimination or retaliation with the Equal Employment Opportunity Commission (“EEOC”) or the state-agency equivalent before they may file a lawsuit alleging such discrimination or retaliation.  If …read more »

Businesses Should Update Indemnity Agreements to Protect Against Contractor Lawsuits

In the past decade, many businesses have significantly improved compliance under the Fair Labor Standards Act (“FLSA”) and other employment laws when it comes to their own employees. At the same time, many workers who provide skilled services to those businesses now do so as independent contractors, often based on service agreements between businesses and …read more »