COVID-19–Driven Layoffs Are Not a ‘Natural Disaster’ Under WARN Act, Fifth Circuit Rules

In the first ruling from a federal appellate court examining COVID-19–related layoffs and the Worker Adjustment and Retraining Notification (WARN) Act, the Fifth Circuit Court of Appeals held in Easom v. US Well Services, Inc., No. 21-20202 (June 15, 2022), that a mass layoff resulting in part from the economic impact of COVID-19 did not qualify for the “natural disaster” exemption to the WARN Act’s sixty-day notice requirement for mass layoffs. The court also held that for an employer to rely on the exemption, the mass layoff (or plant closing) must be the “direct result” of the natural disaster. This is an important ruling for employers in Louisiana, Mississippi, and Texas.

Fifth Circuit Finds Specific Allegation of One-Time Use of Racial Slur Sufficient to Preclude Dismissal Under Rule 12(b)(6)

On March 24, 2022, the U.S. Court of Appeals for the Fifth Circuit reversed a district court’s Federal Rule of Civil Procedure 12(b)(6) dismissal for failure to state a claim on a pro se plaintiff’s hostile work environment claim in violation of Title VII of the Civil Rights Act of 1964, holding that the plaintiff’s specific allegation—that his supervisor, in the presence of other employees, called him a derogatory racial epithet—was sufficient to give rise to a viable claim.

Fifth Circuit Relied on ‘Next to No Evidence’ of Animus in Discrimination Suit

On May 13, 2022, the U.S. Court of Appeals for the Fifth Circuit affirmed summary judgment in favor of an employer, finding that a fired employee had failed to create a genuine dispute of material fact as to pretext. In Owens v. Circassia Pharmaceuticals, Inc., the court affirmed summary judgment despite its recognition that the former employee had presented “substantial evidence” that could lead a reasonable jury to conclude that the employer’s stated reason for termination—her poor job performance—was false.

Fifth Circuit Rules Age-Related Comments Must Be Specific to Defeat Summary Judgment

The Fifth Circuit Court of Appeals recently issued a ruling concerning the discharge of Michael Harris from his position with the City of Schertz, Texas, as the city marshal. In doing so, the Fifth Circuit gave a bit more clarity on the situations in which comments made by an employer or agent of an employer amount to discriminatory pretext.

Breaking News on the CMS Vaccination Rule: Less Than 24 Hours After Being Shelved in 10 States, the Rule Is Sidelined Nationwide

In a November 30, 2021, order, a federal judge sitting in Louisiana entered a nationwide preliminary injunction against the Biden administration’s Centers for Medicare and Medicaid Services’ (CMS) interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination.” The effect of the order is that CMS must immediately “cease all implementation or enforcement of the [CMS] Rule” in the remaining 40 states not covered by an earlier November 29, 2021, order from a federal judge sitting in Missouri that prevented implementation and enforcement of the CMS rule in only 10 states.

Fifth Circuit Rules Day Rate Compensation Does Not Satisfy Requirement of Payment on a Salaried Basis for Exempt Status

The issue of the proper application of the highly compensated employee exemption under the Fair Labor Standards Act (FLSA), as it applies to employees paid on a “day-rate” basis in the oil and gas industry, has been a hotly debated issue in recent years, especially in the Fifth Circuit Court of Appeals.

Unemployment Insurance System Update, Part III: Additional States Opting Out of Federal Unemployment Benefits

Twenty-two of 27 Republican-led states have announced that they will end enhanced federal COVID-19 unemployment benefits early. Of those, four (Arizona, Montana, New Hampshire, and Oklahoma) will offer additional monetary incentives for individuals to return to work. To date, no state with a Democratic governor has chosen to opt out of the COVID-19–related enhanced federal unemployment programs.

Incomplete Payroll Records Lead to Employer FLSA Liability, Fifth Circuit Rules

Employers recognize that the Fair Labor Standards Act (FLSA) requires that they pay nonexempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. A recent Fifth Circuit Court of Appeals decision, U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC, illustrates the danger to employers when they fail to keep complete timekeeping records of their nonexempt employees’ work.

Marijuana Ballot Initiatives Approved in Five States: What This Budding Trend Means for Employers

On November 3, 2020, five states had initiatives on the ballot to legalize the recreational and/or medical use of marijuana, and all five initiatives easily passed. Arizona, Montana, and New Jersey voted in favor of legalizing the possession and recreational use of marijuana for adults aged 21 years and older. In addition, South Dakota became the first state to legalize both medical and recreational marijuana at the same time. Mississippi voted to legalize medical marijuana. Employers may want to consider the impact of these new laws, as well as watch for new developments.

Time to Vote: Employee and Employer Voting Leave Rights and Obligations for the 2020 Elections

Elections in the United States are scheduled for Tuesday, November 3, 2020. Not only will the office of president of the United States be contested, but all 435 seats in the U.S. House of Representatives and 35 of the 100 seats in the U.S. Senate are up for grabs. At the state level, elections will be held for the governorships of 11 U.S. states and 2 U.S. territories.

Marijuana Legalization Update for 2020: A Primer on the Latest Medicinal and Recreational Use News

In the past several years, marijuana legalization has become an increasingly difficult issue for employers to navigate. Marijuana legalization raises challenging workplace questions related to drug testing, disability accommodation, workplace safety, hiring, and employment termination, among other issues. Because of the fast-evolving nature of marijuana laws, and the wide variance in laws and protections from state to state, employers have struggled to keep up.

Coming Soon to the Southeast? A Summary of Medical Marijuana Legalization Efforts in Alabama, Kentucky, and Mississippi

The 2020 state legislative sessions are underway across the country and a hot topic in many states is medical marijuana. As discussed last year, Alabama was poised to become the first Deep South state to enact a medical marijuana law. The Alabama legislature ultimately tabled the issue until the 2020 legislative session.

Fifth Circuit Rules that Courts, Not Arbitrators, Decide “Gateway Issue” of Class Arbitrability

In 20/20 Communications, Inc. v. Crawford, the U.S. Court of Appeals for the Fifth Circuit recently ruled that the question of whether a dispute can be arbitrated on a class-wide basis is a threshold issue that is presumptively for a court, not an arbitrator, to decide. This is the latest in a series of decisions by the Supreme Court of the United States and courts of appeals in favor of arbitration agreements that waive class procedures.