Labor & Employment

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With political division in the United States on full display in the midst of a pandemic, Americans are faced with deepening rifts that touch not only their social circles and family units, but also their work lives. It therefore behooves employers to recognize the reality that disagreements about politics are likely to arise in one form or another in the workplace. With that in mind, employers should review their employment policies and related practices to ensure they are ready to address workplace disputes centered on politics, especially in light of the telecommuting arrangements that many employers are still utilizing during the pandemic.
Continue Reading It’s Time for Employers to Revisit Their Employment Policies to Be Ready to Address Political Disputes Among Coworkers

The United States Court of Appeals for the Fifth Circuit recently reminded employers that they should create and maintain contemporaneous documentation for their personnel decisions and implement flexible progressive discipline policies. Specifically, on December 7, 2020, the Fifth Circuit affirmed a district court’s grant of summary judgment in an employer’s favor on an employee’s age discrimination claim. It did so, in part, because the employer showed that a merit raise it gave the former employee pre-dated the documented decline in her performance and that its progressive discipline policy allowed it discretion in implementation of the progressive steps.
Continue Reading Fifth Circuit Reminds Employers of the Importance of Contemporaneous Documentation and Flexible Progressive Discipline Policies

Mandatory arbitration agreements for employees have been enforceable for decades.  Over the last several years, there has been an ongoing controversy between the Fifth Circuit Court of Appeals, among others, and the National Labor Relations Board as to whether mandatory arbitration agreements which prohibit collective actions are enforceable.  In the recent decision of Epic Systems Corp. v. Lewis, the U.S. Supreme Court has now held that employers may impose mandatory arbitration agreements which deny employees the right to file collective action arbitrations.  In other words, agreements requiring employees to proceed individually in arbitration are enforceable.  In the wake of this decision, many employers are opting to require their current employees to agree to mandatory arbitration. 
Continue Reading Implementing Your Mandatory Arbitration Program

In what appears to be the first website accommodation decision within the Fifth Circuit,  Judge Sim Lake of the Southern District of Texas District Court found that a “website is not a place of public accommodation” under the Americans with Disabilities Act (“ADA”).  Zaid v. Smart Financial Credit Union, No. H-18-1130, 2019 U.S. Dist. LEXIS 11363 (S.D. Tex. Jan. 24, 2019).  Stephen W. Schueler and Modinat “Abby” Kotun defended Smart Financial Credit Union (“SFCU”) against allegations that SFCU’s website discriminated against blind individuals due to its alleged incompatibility with the plaintiff’s screen reader, which he used to access websites.  The plaintiff sought declaratory and injunctive relief requiring SFCU to ensure that its website was accessible to the visually-impaired along with attorneys’ fees.
Continue Reading Americans with Disabilities Act (ADA) Website Accommodations