EEOC Issues Guidance Document on Use of Criminal Histories in Employment Decisions

On April 25, 2012, the EEOC issued a Guidance document addressing employers’ consideration of arrest and conviction records in employment decisions.  See  While purporting not to change the Commission’s longstanding policy approach to this issue – and while it is not binding precedent on the courts – the Guidance offers employers clarification and new …read more »

DOL Issues Revised FMLA Forms

The U.S. Department of Labor (“DOL”) issued revised Family Medical Leave Act (“FMLA”) forms at the end of February 2012 to replace the old forms that expired at the end of 2011.  There are no substantive changes to the revised forms other than a new expiration date of February 28, 2015.  Contrary to expectations, the …read more »

Use Of Criminal Convictions In Hiring: What’s All The Confusion?

A Trip Through Time: Since its first pronouncement on the topic in 1972, the EEOC has taken the position that policies prohibiting hiring persons with a criminal record may disparately impact certain minorities in violation of Title VII. To defend against disparate impact claims, an employer must demonstrate that the use of conviction records is …read more »

Did You Know About These Workplace Laws?

What is “at-will” employment really?  In a sentence, an employer can discharge or discipline an employee for any reason, whether it is a “good” reason or a “bad” one, so long as it is not an unlawful reason.  Most Texas employers (and employees) are familiar with the usual list of “unlawful reasons” like race, gender, …read more »

Lessons to Be Learned: Verizon’s No-Fault Absence Control Policy Leads to the Biggest ADA Settlement Ever Achieved by the EEOC

As we have previously blogged,, the EEOC continues to target inflexible work policies, such as “no fault” absence control policies and “100% fit” return-to-work policies, that do not allow exceptions in cases where a reasonable accommodation may be necessary.  Recently the EEOC achieved its biggest ADA settlement ever – to the tune of $20 …read more »

In a Groundbreaking Decision, the Texas Supreme Court Substantially Broadens the Universe of Enforceable Noncompetes

For many years, Texas appellate courts have held that stock, stock options, and other similar forms of remuneration cannot be sufficient consideration for a covenant not to compete.  Instead, as the courts have generally held, only confidential information or specialized training may be sufficient consideration.  In one fell swoop, the Texas Supreme Court has now …read more »

NLRB Pursues Another Facebooking Case

As we reported in a previous post (, the National Labor Relations Board has lately been focusing on employee rights under Section 7 of the National Labor Relations Act, which protects “concerted” employee activities engaged in for “mutual aid and protection.”  Now, for the second time in less than a year, the Board is litigating …read more »

To the Employer, It’s “Insubordination”; To the NLRB, It’s Protected Conduct

In a presentation given to Houston employment lawyers last week, Martha Kinard – who is a Regional Director of the National Labor Relations Board – highlighted the Board’s continued focus on “protected, concerted activity,” an area of labor law that applies to unionized and non-unionized workplaces alike.  Although many non-union employers believe labor law doesn’t …read more »

Another Inflexible Work Policy Fails the ADA

In the past several years, the EEOC and plaintiffs’ counsel have successfully targeted certain blanket work policies for challenge under the ADA, such as absence control policies and “100% fit” return-to-work policies.  The latest such policy to come under attack is United Airlines’ policy mandating a full workweek for certain classifications of employees. According to …read more »

The Final GINA Regulations And Potential Acquisition Liability

More than a year after the Genetic Information Non-Discrimination Act (“GINA”) was signed into law, the Equal Employment Opportunity Commission published final regulations interpreting Title II of GINA (the employment provisions) on November 9, 2010.  The final regulations are a mixed bag for employers – providing specific guidance in some areas, but at the expense …read more »