Recently in Employment Law Category

When a supervisor sends a subordinate texts like “ur 2 sexy,” a company should either reprimand the supervisor, or prepare to pay in a sexual harassment lawsuit. The defendant in today’s Fifth Circuit appeal chose the latter.

The Fifth Circuit Court of Appeals recently ruled in favor of an employee who brought a same-sex sexual harassment lawsuit against his employer, finding that the evidence supported the employee’s claim that he was sexually harassed and that his employer failed to promptly respond to the situation.

The federal False Claims Act (FCA) creates a cause of action for any person retaliated against by his employer for attempting to prevent an FCA violation. The cause of action, however, was not accompanied by a statute of limitations, so federal courts have been stuck applying the most-closely analogous state statute of limitations.

Courts don't always pick the right statute.

The Fifth Circuit Court of Appeals ruled last week that a Texas district court erred in applying the Texas Whistleblower Act (TWA) statute of limitations to a FCA retaliation lawsuit.

We don't practice employment law, so we won't presume to tell you how to practice employment law. What we can tell you is how to annoy - or avoid annoying - judges in the Fifth Circuit Court of Appeals when filing a harassment lawsuit. While this niche competency doesn't translate well to a social-networking profile or a resume, it could save you, and your client, unnecessary drama in the courtroom.

Today's lesson: consistency.

If you file a harassment lawsuit for a client, claiming he left his job solely based on racial harassment, make sure that your client didn't also file a personal injury claim against a different defendant, insisting that he left the same job due to back pain from a car accident.

Ultima creator Richard Garriott, better-known to the online gaming community as his alter ego Lord British, has 28 million reasons to be happy this week.

On Friday, the Fifth Circuit Court of Appeals upheld a $32 million jury award - $28 million in damages, plus $4 million in attorneys fees and interest - in Garriott's Korean employment law dispute with NCsoft Corporation, a Korean company that develops and publishes massively multiplayer online (MMO) games.

Despite a district court’s holding to the contrary, the Fifth Circuit Court of Appeals thinks that there are genuine issues of material fact in a hostile work environment lawsuit when a manager allegedly called his 65-year-old employee “old man,” “pops,” and “old mother******” for two months.

Milan Dediol, the aforementioned 65-year-old, was a born-again Christian working for Best Chevrolet in Kenner, La., when he requested a day off from work to volunteer at his church.

FLSA Overtime Action

In Martin v. PepsiAmericas, Inc., No. 09-60896, an action for unpaid overtime wages allegedly due under the Fair Labor Standards Act, the court reversed the dismissal of the action where setoffs in unpaid overtime matters were improper unless the money being set-off could be considered wages that the employer pre-paid to the plaintiff-employee.

Unfair Labor Practice Injunction Affirmed

In Overstreet v. El Paso Disposal, L.P., No. 09-51006, an employer's appeal from the district court's grant of temporary injunctive relief requiring defendant to cease and desist from alleged unfair labor practices, the court affirmed the order where 1) the district court did not abuse its discretion in mandating that defendant reinstate the striking workers; and 2) the district court did not err by ordering defendant to adopt the union's proposed Dues-Check off provision.

FLSA Action Against Hotel

In Castellanos-Contreras v. Decatur Hotels LLC, No. 07-30942, a Fair Labor Standards Act (FLSA) action claiming that defendant-employer was required to reimburse plaintiffs for their travel expenses, visa fees, and recruitment payments during their first week of work, the court reversed the denial of summary judgment for defendant where 1) the FLSA did not require the reimbursement of the travel expenses; and 2) the FLSA did not require defendant to reimburse plaintiffs for the fees they paid to the various job placement firms.

In Songer v. Dillon Resources, Inc., No. 09-10803, an action brought by truck drivers who operate commercial trucks against defendants for unpaid overtime under the Fair Labor Standards Act (FLSA), the court affirmed summary judgment for defendants and dismissal of plaintiffs' claims with prejudice, holding that the Motor Carrier Act (MCA) exemption applied to bar plaintiffs' claims because: 1) the MCA applies to defendant-staff leasing agency because is a joint employer with the two companies, both of whom are subject to the exemption, and 2) plaintiffs engaged in activities that directly affect operational safety of motor vehicles in transport of property in interstate commerce.

Onoh v. Northwest Airlines, Inc., No. 09-10971, involved a state-law breach-of-contract and intentional-infliction-of-emotional-distress action against an airline.  The court of appeals affirmed the dismissal of the complaint on the grounds that plaintiff's conversation with an airline agent, in which the agent allegedly stated that "the U.S. State Department would not permit [her] to travel . . . .", was sufficiently related to defendant's provision of "services" under the Airline Deregulation Act to trigger preemption.

Saenz v. Harlingen Med. Ctr., L.P., No. 09-40887, concerned a Family and Medical Leave Act (FMLA) action based on plaintiff's alleged termination due to her epilepsy.  The court reversed summary judgment for defendant, holding that the district court erred when it held plaintiff to defendant's heightened in-house procedure, and further, plaintiff provided the minimum required notice under FMLA's default requirements.

Spotts v. US, No. 09-41039, involved an action by present and former inmates of the Federal Correctional Complex, United States Penitentiary, in Beaumont, Texas, in connection with the decision made by the Regional Director of the South Central Region of the Federal Bureau of Prisons, not to evacuate the Penitentiary in the aftermath of Hurricane Rita.  The court affirmed the dismissal of the action on the grounds that 1) plaintiffs did not plead, and never argued to the district court, that the Eighth Amendment precluded the application of the discretionary function exception to the Federal Tort Claims Act; 2) plaintiffs' contention that the Safe Drinking Water Act imposed nondiscretionary duties that were contravened by the decision not to evacuate lacked merit; and 3) defendants' decision was the type of policy decision protected by the discretionary function exception and therefore meets the second prong of the Berkovitz test.

In re: Mirant Corp., No. 09-10451, involved a fraudulent transfer adversary proceeding initiated by some of a debtor's affiliates in connection with a bankruptcy petition.  The court affirmed the denial of defendant's motion to compel arbitration on the grounds that 1) defendant moved to compel arbitration only after the district court had partially denied its third motion to dismiss, despite being fully aware of its right to compel arbitration from the outset; and 2) the eighteen-month delay between the filing of defendant's original answer and its motion to compel arbitration wasted judicial resources and disadvantaged plaintiff.

Related Resources

• Full Text of Onoh v. Northwest Airlines, Inc., No. 09-10971
• Full Text of Saenz v. Harlingen Med. Ctr., L.P., No. 09-40887
• Full Text of Spotts v. US, No. 09-41039
• Full Text of In re: Mirant Corp., No. 09-10451