U.S. Fifth Circuit - The FindLaw 5th Circuit Court of Appeals Opinion Summaries Blog

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In the great state of Louisiana, the state's attorney general and commissioner of alcohol and tobacco have been fighting a fight that exotic dancers just don't think are right.

In 2016, the state both defined and raised the minimum age requirement for exotic dancers in establishments that serve alcohol. While the industry had always presumed the minimum age was 18, this was not actually stated in the law. In 2016, the new law passed and set the minimum age at 21, which as a result, caused many dancers between the ages of 18 and 21 to be out of a job, or forced to take other positions which pay significantly less.

In-N-Out Burger, everyone's favorite West Coast burger chain, and one with a reputation for treating employees better than its competitors, recently found itself in hot water with the NLRB over a "Fight for $15" pin worn by a couple employees. The "Fight for $15" campaign is all about food service workers banding together to fight for a $15 minimum wage.

The burger-maker appealed the NLRB order to the Fifth Circuit, while the NLRB filed a request that the appellate court enforce their order. And though the public may like the burgers, the appellate court agreed with the NLRB, and denied In-N-Out's appeal.

Nurse Kymberli Gardner's case against the nursing home where she used to work got some much needed attention from the Fifth Circuit Court of Appeals, which reversed the grant of summary judgment, allowing her case to proceed to trial.

Nursing homes and employees may want to pay careful attention to this case, as might other institutional employers and employees. That's because the case involves an employer's liability for a third-party-created hostile work environment in a setting where third-parties are expected to misbehave.

DOL Fiduciary Rule Is Officially Dead

For investment advisers, the late 'fiduciary rule' of the U.S. Department of Labor could have made sense.

But for salespeople and brokers, it imposed a duty they had never known. It would have required them to act in the best interests of their clients when selling or buying investment products.

That's not how the industry works, the U.S. Fifth Circuit Court of Appeals said in announcing the death of the rule in Chamber of Commerce of the United States of America v. United States Department of Labor.

In an appeal to the Fifth Circuit, an injured former employee of Tyson Foods sought to reverse the trial judge's refusal to grant a new trial, as well as a peculiar request seemingly on behalf of the appellant's attorney involving the jury.

In short, the underlying case, Benson v. Tyson Foods, involved a claim of disability discrimination, which was undercut at trial by evidence and testimony the jury relied on to find that the plaintiff-appellant was not actually disabled. Although the plaintiff did suffer a severe injury, medical experts testified that the injury had fully healed, and the plaintiff testified that she was able to play basketball and work two jobs where she stood for most of the time.

The federal district court for the Southern District of Texas issued a ruling that could bring the state up to speed with many others. Judge Lee Rosenthal, while ruling against a transgender plaintiff, explained that LGBT employees are in fact protected under Title VII.

Although the plaintiff's attorney expressed disappointment at the ruling against his client, he believes the decision to be "earth-shattering" for the fact that a Texas federal court is recognizing LGBT protections under Title VII. Apparently, it is the first time a Texas court has recognized LGBT protections under Title VII.

A federal district court judge has been booted off the case of Robinson v. Jackson State University as a result of some questionable judgments. The jury returned a verdict in favor of the terminated university employee, however, the verdict was left to languish in a post-judgment limbo due to judicial inaction.

Then when the plaintiff's attorney attempted to spur some action from the court by requesting a judicial transfer, a year after the jury rendered its verdict, Southern District of Mississippi Judge Henry Wingate ruled that the defendants post-judgment motion for a judgment notwithstanding the verdict (as a matter of law) was granted. Escalating matters even further, Judge Wingate awarded defendants costs. Plaintiff timely appealed what, for all intents and purposes, appeared to be a spiteful ruling.

Class Action Can Be Waived in Job Agreement, 5th Cir. Rules

A federal appeals court ruled that a company may lawfully require employees to waive a class action in their employment agreements.

In Convergys Corporation v. National Labor Relations Board, the divided appellate panel said the company did not violate the National Labor Relations Act. The court said Convergys could require job applicants to sign the waiver and could lawfully enforce it.

Concluding that "the use of a class or collective action is a procedure rather than a substantive right," the U.S. Fifth Circuit Court of Appeals overturned the board's ruling that the waiver interfered with workers' right to band together.

T-Mobile's 'Positive Work Environment' Policy Is Valid

As T-Mobile fought cell plan wars on television, the company quietly waged another battle with its employees.

The National Labor Relations Board had sided with the workers, saying the cellular company was trying to keep them from unionizing. The battle plan was right in the employee handbook, the board said.

In T-Mobile USA v. National Relations Labor Board, however, the U.S. Fifth Circuit Court of Appeals said the company was just urging workers to get along.

Court Rules for Religious Freedom Law

A federal appeals court preserved Mississippi's so-called "religious freedom law" from a legal challenge by LGBT-rights activists.

The U.S. Fifth Circuit Court of Appeals said the plaintiffs in Barber v. Bryant lacked standing to sue the state over the Protecting Freedom of Conscience from Government Discrimination Act. The law allows government employees, service providers, and businesses to deny services to gay couples and others based on religious beliefs without reprisal from the government.

The court said the plaintiffs had not shown they had any injury from the law, which opponents called the most sweeping anti-LGBT law based on religion in the country.