Archives

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.

Adam T. Dougherty Dallas Author

Tiffany Cox Stacy San Antonio Author

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.

Andrew P. Burnside New Orleans Author

Tiffany Cox Stacy San Antonio Author

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.

Brandon E. Strey San Antonio Author

Mississippi Approves Medical Marijuana: What a Long, Strange Trip It’s Been

Rarely are we able to combine the Grateful Dead and Mississippi in the same sentence, but the band once said, what a long strange trip it’s been.

M. Tae Phillips Birmingham Author

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.

Greg Guidry Lafayette
New Orleans Author

Dee Anna D. Hays Tampa Author

James M. Paul St. Louis Author

Fifth Circuit Again Stays OSHA’s ETS … for Now

On November 12, 2021, a three-member panel of the United States Court of Appeals for the Fifth Circuit issued a sweeping order continuing its initial November 6, 2021, stay of the emergency temporary standard (ETS) that the U.S. Occupational Safety and Health Administration (OSHA) issued on November 4, 2021.

Phillip B. Russell Tampa Author

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.

Thomas A. Bright Greenville Author

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.

Ashley Prickett Cuttino Greenville Author

Marijuana Laws Affecting the Workplace: Tools Employers Can Use to Stay Ahead During High Times

States have been busy when it comes to marijuana laws. Before the mid-2010s, employers tended not to worry about state marijuana laws because of marijuana’s illegal status under federal law. However, those days are over, and state marijuana legalization laws continue to affect how employers can run their workplaces.

M. Tae Phillips Birmingham Author

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.

Lawrence D. Smith San Antonio Author

Marijuana Legalization Update: Early 2021 Legislative Developments

In November 2020, voters in five states (Arizona, Mississippi, Montana, New Jersey, and South Dakota) voted in favor of legalizing medical and/or recreational marijuana. Since then, there have been several developments within the marijuana legalization world that employers may want to keep an eye on as they move forward in 2021.

M. Tae Phillips Birmingham Author

Fifth Circuit Sets New Standard for Certifying FLSA Collective Actions

On January 12, 2021, the Fifth Circuit Court of Appeals issued a landmark decision rewriting the rules for obtaining certification in collective actions under the Fair Labor Standards Act (FLSA).

John B. Brown Dallas Author

Patrick J. Maher Dallas Author

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.

Rayna H. Jones Phoenix Author

Michael Clarkson Boston Author

Michael J. Riccobono Morristown Author

M. Tae Phillips Birmingham Author

Roger G. Trim Denver Author

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.

M. Tae Phillips Birmingham Author

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.

M. Tae Phillips Birmingham Author

Morgan Pike Epperson Birmingham Author

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.