It has been a long time since a federal court has found discrimination against an employer post union certification, but that is precisely what the Fifth Circuit found in its April 13, 2022 judgment in the matter of Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Company, No. 21-50544. Rod Tanner represented BLET as local counsel.

Most claims challenging employee discipline qualify as minor disputes under the Railway Labor Act, meaning federal courts will not have jurisdiction over the dispute. There are, however, exceptions to this general rule, including the authority for a federal court to remedy carrier conduct motivated by antiunion animus.

In the underlying case, the United States District Court for the Western District of Texas, El Paso, found such antiunion animus and entered a preliminary injunction prohibiting Union Pacific from suspending six union members, including five actively-employed officers of the union’s local division, over a fistfight at an offsite union meeting following tensions regarding a “shove” policy. Engineers take “shoves” when they accept extra shifts at the request of the railroad. Not all of the union’s members agreed with whether the engineers should accept shoves or not.

Four of the suspended union members were not involved in the fight and were merely bystanders, yet Union Pacific did not discipline the initial aggressor. The suspension of six union members, including five who held office, effectively barred all of the union’s leadership from Union Pacific’s premises.

The union sued Union Pacific in federal court, alleging it had retaliated against the union for its shove policy by debilitating the union officers who sought to enforce it. The union argued this violated the RLA’s proscription against carrier interference with union activity. The union sought injunctive relief and Union Pacific moved to dismiss on the grounds that it was a subject for arbitration. The court granted the union’s preliminary injunction and denied the motion to dismiss, concluding Union Pacific had used its disciplinary proceedings as “pretext for undermining” the union. Thus, the court found the case presented an “exceptional circumstance” of antiunion animus granting the court jurisdiction.

The animus exception is derived from Section 2 of the RLA, which provides that no carrier “shall in any way interfere with, influence, or coerce” the employees in their “choice of representatives.” Sixty years ago, the Fifth Circuit in Brotherhood of Railroad Trainmen v. Cent. of Ga. Ry. Co. held that, where a railroad uses its disciplinary proceedings as a guise for undermining the effectiveness of a union, the railroad has obviously violated Section 2, Third, of the RLA, and a federal court injunction is appropriate.

The Fifth Circuit panel here applied Central of Georgia and found the facts substantially similar. In Central Georgia, the railroad started disciplinary proceedings against a local union representative for alleged “gross disloyalty” after encouraging other employees to pursue workers’ compensation claims. Here, Union Pacific suspended elected officers of their local union division for attempting to persuade their peers to adopt a pro-union position in a policy dispute (related to the shove policy).

Union Pacific argued Central Georgia does not apply to animus claims raised by certified unions because the Supreme Court has stated Section 2, Fourth, of the RLA addresses “primarily the precertification rights and freedoms of unorganized employees” and is not usually grounds for judicial intervention once the union has been certified. Trans World Airlines, Inc. v. Independent Federation of Flight Attendants. However, the Fifth Circuit following TWA reiterated that actions taken by a carrier to weaken or destroy a union remain a special circumstance entitling a federal court to assert jurisdiction.

The Fifth Circuit panel—Dennis, Higginson, and Costa—thus reaffirmed its 1962 holding in Central Georgia that antiunion discrimination like this is an exception to the “minor dispute” doctrine, which normally forces the disciplinary case into arbitration, even when involving post-certification disputes. The preliminary injunction in El Paso was therefore affirmed and all union officials were reinstated with back pay.
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This was an important victory for BLET’s membership. Tanner and Associates remains committed to ensuring the RLA’s protections are afforded to the unions it represents. 

On February 10, 2022, the United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act by rare unanimous consent. The House passed the bill earlier that week in a 335-97 vote. The bill bars employment contracts from forcing people to settle sexual assault or harassment claims through arbitration rather than in court, stating in relevant part: “[N]o predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.” 

A sexual assault dispute is defined as “a dispute involving a nonconsensual sexual act or sexual contact. . .including when the victim lacks capacity to consent.” A sexual harassment dispute is defined as “a dispute relating to any of the following conduct directed at an individual or group of individuals:

1. Unwelcome sexual advances.
2. Unwanted physical contact that is sexual in nature, including assault.
3. Unwanted sexual attention, including unwanted sexual comments and propositions for sexual activity.
4. Conditioning professional, educational, consumer, health care, or long-term care benefits on sexual activity.
5. Retaliation for rejecting unwanted sexual attention.

​The bill is retroactive, meaning it applies even to employment contracts written and entered into prior to the bill’s passing. 

It is estimated that 60 million American workers have employment contracts that require them to settle allegations of sexual misconduct in private arbitration proceedings. Critics have long condemned this practice of keeping private what is often systemic misconduct in the workplace, and these concerns were only amplified by the #MeToo movement.

The bill’s language does not automatically render all such provisions of employment contracts as unenforceable but requires the person resisting arbitration to affirmatively challenge the arbitration agreement and gives them the footing to have a mandatory arbitration clause under the Act declared invalid or unenforceable by a court.

The Act does not automatically render all arbitration provisions covered by the bill unenforceable, meaning an employee may still elect to arbitrate a sexual misconduct claim. There are a few reasons why an employee may choose to do so. For example, the relaxed rules of evidence and the greater control parties old in the process can make it simpler and perhaps more rewarding, giving employees the opportunity to speak for themselves knowing their statements will remain confidential. Arbitration can also resolve quicker than litigation. 

With the exception of the few appealing characteristics mentioned above that apply only in particular circumstances, the private resolution of these claims in arbitration most often serves to benefit the employer. The conclusion of arbitration is usually accompanied by a non-disclosure agreement, making the outcome contingent upon the continued silence of the parties.

​Not only does this prevent other employees and interested parties from hearing about acts of sexual misconduct at the workplace and how they were handled by management, but it inhibits any efforts of forming a class action and may fail to lead to any meaningful change to insufficient employment policies and practices. Monetary damages—often the sole remedy provided in arbitration—may not be enough to deter ongoing and systemic misconduct. Forced arbitration can make it more likely that employer will continue violating workers’ rights.

These concerns do not even address the possibility of bias in the arbitration process. Some employers have arbitrators on retainer, meaning the decisionmaker deciding whether an employer violated an employment law may be on that employer’s payroll. Employees also face a high bar if they later seek to vacate an arbitration award. 

The newly-passed Act is a win for the millions of workers subject to forced arbitration of sexual misconduct claims and advocates for workers' rights and greater transparency in U.S. workplaces. While employees may still elect to arbitrate, they are no longer forced to do so, even if they entered into an arbitration agreement or class action waiver prior to the bill's enactment. 

The NLRB has recently signaled two potential changes to standards used to determine whether two entities are joint employers and to determine whether micro-units are permissible bargaining units under the Act. 

The impact of a joint-employer finding is that a joint employer may have a duty to participate in collective bargaining for the other entity’s employees; may jointly or independently be responsible for ULPs committed by either employer; may be subject to accretion; and may face a greater likelihood that picketing by the employees would be lawful.

The standard for determining whether two entities are joint employers has been revised several times over the past decade, most recently evolving when the Board decided Browning-Ferris Industries, 362 NLRB 1599 (2015).

​Prior to Browning-Ferris, an entity could be held a joint employer only if it exercised “direct and immediate” control over employment terms and conditions in more than a limited and routine manner. In Browning-Ferris, the Board relaxed that standard and extended joint employer status even to entities possessing an ability to control employment terms and conditions indirectly and even if the entity never actually exercised that ability.

In late 2017, the Board decided Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017), which overruled Browning-Ferris and reinstated the earlier, more exacting joint employment standard previously. Just two months later, the Board vacated Hy-Brand due to alleged conflicts of interest by one of the participating Board members and reinstated Browning-Ferris.

Three months later, in May 2018, the Board announced it would consider revising the joint employer standard, and in September 2018 it published a Notice of Proposed Rulemaking. In February 2020, the Board confirmed that it would replace the Browning-Ferris standard with a new rule, effective April 27, 2020. The new rule provided that a joint employer relationship requires the purported joint employer “possess and exercise. . .substantial direct and immediate control” over one or more “essential terms and conditions of employment” of another employer’s employees, such that the “entity meaningfully affects matters relating to the employment of those employees.”
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On December 10, 2021, the Board announced in its regulatory agenda that it plans to engage in rulemaking on the joint employer standard again. It has been widely predicted that the Board will revert to the standard that previously existed, which does not require the purported joint employer actually exercise control over employment conditions so long as the company possesses such authority. 

By definition, a micro-unit is simply a small group of employees that unionizes but does not represent a majority of an employer’s workforce. Whether a micro-unit is permissible under the Act has fluctuated over the years.

In 2011, the Board lowered the bar for unions to organize smaller groups into bargaining units despite decades of precedent holding otherwise. In 2017, the Board restored the pre-2011 standard for evaluating the appropriateness of a petitioned-for bargaining unit.
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On December 7, 2021, in American Steel Construction, 371 NLRB No. 41 (2021), the Board invited public input as to whether it should reconsider that standard again and possibly revert back to the 2011 rule making it easier for unions to organize employees into micro-units. 

In the underlying case, Local 25, International Association of Bridge Structural, Ornamental, and Reinforcing Iron Workers, AFL-CIO, filed a petition on November 18, 2020, seeking to represent a bargaining unit composed of the full- and regular-time journeymen and apprentice field ironworkers employed by American Steel Construction.

Citing PCC Structural, Inc., 365 NLRB No. 160 (2017) and The Boeing Company, 368 NLRB No. 67 (2019), the Region held that the community of interest shared among employees encompassed by the proposed unit was not sufficiently distinct from the interests of other employees excluded from the petitioned-for unit.

The Board noted that, prior to PCC Structurals, the Board’s Specialty Healthcare & Rehabilitation Center of Mobile opinion set out a more permissive standard for determining the appropriateness of a petitioned-for bargaining unit, where the standard was whether the employees encompassed by the unit were readily identifiable as a group and shared a community of interest. 

​On December 14, 2021, the EEOC issued new guidance on COVID-19 and the Americans with Disabilities Act of 1990, as amended (ADA). The guidance addresses whether COVID-19 is considered a disability under the Act and what accommodations, if any, employers must provide qualified employees.
 
As background, Title I of the ADA applies to private employers with 15 or more employees and to state and local government employers, employment agencies, and labor unions and prohibits discrimination against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment.
 
In its new guidance, the EEOC explained that the ADA’s three-part definition of “disability” applies to COVID-19 in the same way that it applies to any other medical condition. Thus, a person can qualify as a person with a disability in one of three ways:

1. Actual Disability: the person has a physical or mental impairment that substantially limits a major life activity (i.e., walking, talking, seeing, hearing, learning, or operation of a major bodily function);
2. Record of a Disability: the person has a history or “record of” an actual disability (such as cancer that is in remission); or
3. Regarded as an Individual with a Disability: the person is subject to an adverse action because of an individual’s impairment or an impairment the employer believes the individual has, whether or not the impairment limits or is perceived to limit a major life activity, unless the impairment is objectively both transitory (lasting or expected to last six months or less) and minor.

A person with COVID-19 has an actual disability if the person’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities.” An individualized assessment is necessary to determine whether COVID-19 substantially limits a major life activity. A person with a mild response to COVID-19 or who is asymptomatic does not have an actual disability within the meaning of the ADA.
 
A physical impairment includes any physiological disorder or condition affecting one or more body systems. A mental impairment includes any mental or psychological disorder. COVID-19 is a physiological condition affecting one or more body systems and is thus a “physical or mental impairment” under the ADA.
 
“Major life activities” include both major bodily functions, such as respiratory, lung, or heart function, and activities in which someone engages, such as walking or concentrating. COVID-19 may affect functions of the immune system, special sense organs for smell and taste, digestive, neurological, brain, respiratory, circulatory, cardiovascular functions, or the operation of an individual organ. COVID-19 may also affect eating, walking, breathing, concentrating, thinking, interacting with others, or caring for oneself. COVID-19 therefore may affect a major life activity if it affects one or multiple of these functions or activities.
 
“Substantially limits” is construed broadly and COVID-19 need not prevent or significantly or severely restrict a person from performing a major life activity to be considered substantially limiting under Title I of the ADA. Nor do symptoms need to last for any particular length of time to be substantially limiting.
 
However, COVID-19 is not always an actual disability under the ADA, and the determination must be made on a case-by-case basis. 

​A person with COVID-19 may have a record of a disability if the person has a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment. 

A person with COVID-19 may be regarded as an individual with a disability if the person is subjected to an adverse action (fired, not hired, harassed, etc.) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has an impairment, subject to the caveat identified above.
 
However, it is possible that an employer who has taken an adverse action based on an impairment did not engage in unlawful discrimination under the ADA, because an individual still needs to be qualified for the job held or desired and the employer has certain defenses. For example, the ADA’s “direct threat” defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from entering the workplace during the CDC-recommended isolation period due to the risk of substantial harm to others. 

​In some cases, even if COVID-19 does not qualify as an ADA-disability, an individual’s COVID-19 may result in impairments that are themselves disabilities under the ADA. In other cases, COVID-19 may worsen an individual’s pre-existing condition that was not previously substantially limiting, making that impairment now substantially limiting.  

To request a reasonable accommodation, individuals must meet the “actual” or “record of” definitions of disability. Furthermore, individuals are not entitled to an accommodation unless their disability requires it and an employer is not obligated to provide an accommodation that would pose an undue hardship.
 
If a disability or need for an accommodation is not obvious or already known, an employer may ask the employee to provide reasonable documentation about disability and/or need for reasonable accommodation, which is oftentimes only the individual’s diagnosis and any restrictions or limitations. The employer may also ask about whether alternative accommodations would be effective. If an employee does not cooperate in providing the requested supporting medical information, the employer can lawfully deny the accommodation request. Of course, employers may choose to provide accommodations beyond what the ADA mandates. 

​For an overview of a union’s right to strike under federal law, see our recent blog discussing the subject here.  

The International Alliance of Theatrical Stage Employees (IATSE) represents over 150,000 workers in the entertainment industry in the United States and Canada, including costume and set designers, makeup artists, script coordinators, camera operators, and other on-set workers.
 
The IATSE has been negotiating with the Alliance of Motion Picture and Television Producers (AMPTP), which represents the studios and production companies, for months to reach a new collective bargaining agreement. Some of the most critical terms for a new agreement to the IATSE include limits to shooting hours, increased wages and compensation, rest and meal periods, and working conditions.
 
On October 4, 2021, IATSE members overwhelmingly voted in favor of a strike authorization following unproductive negotiations. IATSE President Matthew Loeb then set a Monday, October 18 deadline to reach a new agreement with the AMPTP. If a deal is not reached by 12:01 a.m. Pacific Time Monday, union members will begin a nationwide strike that would set in motion the nation’s largest work stoppage since the 2007-2008 strike by the Writers Guild of America and would be the first strike for IATSE in its 145-year history.

​About 10,000 members of the United Auto Workers (UAW) union went on strike against farm and construction equipment maker John Deere this morning, October 14, 2021. The UAW had reached a tentative six-year agreement with the company two weeks ago, but 90% of the union’s membership voted against it and a new agreement has not been made.
 
This is the nation’s largest private-sector strike since the UAW’s six-week strike against General Motors two years ago. Workers are most certainly emboldened by the increase in demand during the pandemic coupled with the shortage of workers. The contracts under negotiation cover 14 Deere plants across the United States.

​More than 24,000 Kaiser Permanente nurses and healthcare workers also authorized a strike. The United Nurses Association is contesting Kaiser Permanente’s efforts to cut wages amidst turning a $2.7 billion profit in the pandemic. The strike would involve nurses, pharmacists, rehab therapists, midwives, and optometrists at Kaiser hospitals throughout California and could come as soon as 10 days after giving notice to the employer as required by law.

​About 1,400 Kellogg workers represented by the Bakery, Confectionery, Tobacco Workers and Grain Millers International Union (BCTGM) at four U.S. plants are also currently on strike. These workers produce cereals for brands including Rice Krispies, Fruit Loops, Frosted Flakes, and Raisin Bran.
 
Kellogg workers are striking against a proposed two-tier system for current and new employees along with no offer for pensions to new employees, a removal of cost-of-living provisions, and changes to holiday pay and vacations. These employees often worked seven days a week, 16 hours per day during the pandemic. 

​This is only a snapshot of strike activity in the U.S. this month. Several other large groups of workers have voted to authorize strikes across the country and many more strikes are likely to emerge. This comes after the National Labor Relations Board noted a record low number of strikes in 2020, reaching only 27,000 workers. Whether this momentum will continue into the new year remains to be seen, but October has certainly resulted in a swift rise for the American labor movement. 

With a Facebook whistleblower dominating recent national news headlines, the question of what exactly a whistleblower is and what protections one has when coming forward with information may be in readers’ minds. 

A whistleblower is someone, usually an employee, who reports an organization or agency’s waste, fraud, abuse, corruption, dangers to public health and safety, or other illegal or illicit activity to someone who has the authority to to rectify the wrongdoing. 

First, a distinction must be made between federal whistleblowers, public whistleblowers, and private whistleblowers, as different federal laws apply to each category.

In 1989, Congress passed the Whistleblower Protection Act, guaranteeing that federal whistleblowers would not face retaliation if they reported misconduct within their departments. The law protects any employee who reports illegal activity as well as “mismanagement, gross waste of funds, abuse of authority or a substantial and specific danger to public health and safety” taking place in their offices. The more recent Whistleblower Protection Enhancement Act of 2021 similarly protects federal employees from retaliation.

Whistleblower protections vary widely between states, and Texas whistleblower laws are not as protective as others.

The Texas Whistleblower Act prohibits a state or local governmental entity from taking adverse personnel action against a “public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement agency.” The elements of a Texas Whistleblower Act claim are: (1) the plaintiff was a public employee; (2) the defendant was a state agency or local government; (3) the plaintiff reported in good faith a violation of law to an appropriate law enforcement agency; and (4) the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.

The term “good faith” means that the employee believed that the conduct reported was a violation of law and the employee’s belief was reasonable in light of the employee’s training and experience. An employee’s mistaken belief that she is reporting a violation of law to the appropriate law enforcement authority is still in good faith, and she may still be protected by the Act, if the employee believes the governmental entity is authorized to either regulate under or enforce the law alleged to have been violated in the report or to investigate or prosecute a violation of criminal law and the employee’s belief is reasonable in light of the employee’s training and experience.
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An appropriate law enforcement authority to which a public employee can report a violation of law, the authority must have outward-looking powers; it must have the authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties. The authority must be actually responsible for regulating under or enforcing the law allegedly violated and must have law enforcement authority over third parties outside of the entity. 

It is not always possible to consult an attorney prior to coming forward with information that entitles the employee to whistleblower protection; however, to the extent it is possible, consulting with an experienced attorney is strongly recommended. Employees wishing to file a lawsuit for discrimination or retaliation under the Texas Whistleblower Act and other state and federal laws should seek assistance from an experienced employment attorney.

Texas, and 48 other states, adheres to the presumption of at-will employment, and has done so for more than 100 years. The general at-will rule is that, absent a specific agreement to the contrary, employment may be modified or terminated by the employer, or the employee, at will. As a general rule, employment for an indefinite term is presumed to be employment at will.

This means an employer may discharge an employee for good cause, bad cause, or no cause at all, as long as it does not violate the law. For example, state and federal law prohibit discrimination and retaliation, so employers cannot terminate an employee based on his or her gender, race, age, national origin, color, or religion, or for opposing an unlawful employment practice. Texas therefore does not recognize a claim for wrongful termination in the absence of an employment contract or statute.
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However, this presumption does not preclude employers and employees from forming subsequent contracts limiting an employer’s right to discharge an employee, so long as neither party relies on continued employment as the consideration for the contract. Thus, despite the at-will presumption, employers may nonetheless restrict their ability to discharge employees by expressly providing for employment for a specific period of time, for example, or by limiting any terminations to those for good or just cause.

The presumption that employment at will is difficult to overcome and an employer’s modification of the presumption must be express and cannot be implied.
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Thus, an employee manual or handbook vaguely stating that an employee may be dismissed for cause does not modify the at-will employment rule by requiring that dismissal be only for cause. Nor is the manual’s requirement that employee records state one of several bases for termination a specific agreement that alters the relationship. Similarly, the Texas Supreme Court has ruled that comments by the employer that assure the employee she will always have a job if she works hard do not destroy the presumption of at-will employment.

A contract that alters the at-will relationship must unequivocally indicate the employer’s definite intent to be bound not to terminate the employee except under clearly specified circumstances.

It is the employee’s burden to prove that the employer expressly, clearly, and specifically agreed to modify the employee’s at-will employment status.
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Under Texas law, statutory exceptions to employment-at-will include:

1. Discharge based on filing a workers’ compensation claim;
2. Discharge based on membership or non-membership in a union;
3. Discharge based on active duty in the military;
4. Discharge based on jury service; and
5. Discharge based on discrimination. 

There is a public policy exception to at-will employment in Texas, but it is exceptionally narrow. The Sabine Pilot exception affords employees protection from retaliatory discharge for refusing to engage in illegal conduct.

To prevail under the very narrow Sabine Pilot exception, the discharged employee must prove his or her discharge was for no reason other than his or her refusal to perform an illegal act. Attempts to expand the public policy exception have failed.

There is no public policy exception for employees who are:

1. Discharged for reporting illegal activities;
2. Discharged for refusing to perform an act that she mistakenly thinks is illegal; or
3. Discharged for inquiring into the legality of an act later determined to be legal.

The exception does not extend to private whistleblowers, although the Texas Whistleblower Act offers some protection from retaliation, which will be discussed in depth in a future blog.

Despite this at-will presumption, Texas employees are still granted significant protections in their employment under state and federal law. Workers who are unsure whether their employment contract has been violated or whether they may have a claim for an unlawful discharge should seek the guidance of a reputable employment attorney.

We recently published an update pertaining to recent Texas court decisions, available here. This week’s blog reviews recent Texas legislative actions affecting employment law.

In addition to the new sexual harassment protections that we wrote about here, the Texas Legislature has passed other employment legislation in its most recent regular session and two-specially called legislative sessions. 

Texas is one of 19 states that have passed statutory liability protections for businesses against claims arising from the COVID-19 pandemic Authored by Sen. Kelly Hancock, the Pandemic Liability Protection Act (PLPA) was passed by both chambers by supermajorities and went into effect on June 14, 2021. The PLPA grants retroactive liability protection for small and large businesses for claims commenced on or after March 13, 2020. It does not however, provide businesses an absolute immunity shield. Although high thresholds, claims can still be brought for a pandemic-related injury or death if the business:

1. Knowingly failed to warn of, or to fix, a condition it knew was likely to result in exposure, and the failure to warn or fix was the cause in fact of the exposure; or
2. Knowingly failed or refused to comply with government standards, guidance, or protocols that are intended to lower the likelihood of exposure to COVID-19, and the failure or refusal to comply was the cause in fact of the exposure.

Merely asserting that a defendant knew of and failed to warn of a condition that was likely to result in the exposure to COVID-19 and knowingly failed to implement or comply with government-promulgated standards, guidance, or protocols is insufficient to establish a claim. Instead, the plaintiff must provide reliable scientific evidence that shows the defendant’s failure to warn of the condition or failure to comply was the cause in fact of the individual contracting the disease.
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The PLPA’s liability shield will continue to protect businesses until Governor Abbott terminates the current COVID-19 pandemic disaster declaration. Notably, the law does not create a private cause of action. 

While recreational marijuana is still prohibited in Texas, earlier this year, Governor Abbott signed into law HB 1535, which went into effect September 1, 2021. The new law doubles the permissible amount of THC in low-THC cannabis, from 0.5% to 1%. It also adds cancer, chronic pain, and post-traumatic stress disorder to the permissible list of medical conditions for which low-THC cannabis may be prescribed.
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This new law significantly expands the number of people potentially eligible for a prescription, as the previous law only permitted prescriptions for epilepsy, a seizure disorder, multiple sclerosis, spasticity, sclerosis, autism, and terminal cancer. The new law also permits a prescription of low-THC cannabis in an approved research program.

Under the terms of the bill, one or more compassionate-use institutional review boards would be established to evaluate and approve proposed research programs that would study the medical use of low-THC cannabis in treating specific medical conditions. The boards would also oversee patient treatment that was undertaken as part of an approved research program, including the certification of treating physicians.

The law instructs the relevant state agencies to issue rules and guidance by December 1, 2021. Although the new law does not contain any employee protections for use of cannabis, employees may request accommodations for permission to use low-THC cannabis for medical purposes.

​SB 484 went into effect on September 1, 2021 and provides enhanced employment protections for active service members. Texas employees who are called to active duty or training with state military forces have long been protected from termination and had certain reinstatement rights after returning from duty or training, but an aggrieved individual previously could only file a complaint with the Texas Workforce Commission. The new law gives employees the right to hire a lawyer and file a civil lawsuit in state court, and further permits recovery of damages, costs, and attorneys’ fees.

​Governor Abbott also signed into law the Firearm Carry Act of 2021, HB 1927 (FCA), which went into effect on September 1, 2021. The FCA generally permits most Texans age 21 and over to carry holstered handguns without training or a license-to-carry permit if they are not otherwise prohibited from doing so by state or federal law. The new law does not prevent or otherwise limit the right of a public or private employer to prohibit persons from carrying a handgun on the premises of the business, but most employers cannot prevent employees from keeping a firearm in their locked vehicles in a parking lot. 

Several bills were introduced during the regular legislative session to require private employers to provide employees with paid sick leave and they all failed. Cities have attempted to pass laws requiring sick leave, but they have similarly been thwarted. The City of Dallas passed a paid sick leave ordinance on August 1, 2019 for employers with six or more employees, but the Eastern District of Texas struck it down as preempted by the Texas Minimum Wage Act and in violation of the Texas Constitution.
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There is therefore still no state or local law that requires Texas employers to provide paid sick leave. 

​For a broad overview of the National Labor Relations Act, see our previous blog here. 

​At its core, a strike is a cessation of work, a refusal to continue work, a slow-down, or other concerted activity initiated by employees for the purpose of slowing down the employer’s output.
Data from the Bureau of Labor Statistics showed an upsurge in major strike activity in 2018 and 2019, marking a 35-year high for the number of workers involved in a major work stoppage over a two-year period. Many of those strikes made national news. 

In 2018, there was a wave of teachers’ strikes throughout the U.S. demanding raises, where in one-third of the country, the average teacher earns less than $50,000 per year. In the fall of 2019, there was a strike by over 40,000 GM autoworkers over plant shutdowns and wages and benefits and another strike by over 20,000 AT&T workers who alleged the company was not bargaining in good faith for a new contract.
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All employees—whether they are unionized or not—have the right to participate in a protected strike, picket, or protest regarding work-related issues. However, the law places limitations and qualifications on the exercise of that right, some of which we will discuss below.

Section 7 of the National Labor Relations Act states in part, “Employees shall have the right. . .to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection.” Among those concerted activities is the right to strike.

Section 13 of the Act also addresses the right to strike, stating: “Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right.”

There is no federal law giving public-sector workers the right to strike, but a dozen states have enacted laws giving public-sector workers certain strike rights, including Alaska, California, Colorado, Hawaii, Illinois, Louisiana, Minnesota, Montana, Ohio, Oregon, Pennsylvania, and Vermont. The vast majority bar strikes that would endanger public health, safety, or welfare, and for that reason, police and firefighters are prohibited from striking in almost every state.

The 38 states that do not recognize a permissive strike right either do not recognize their right to strike or have an outright prohibition against public sector strikes. Section 617.003 of the Texas Government Code expressly prohibits public employees from engaging in strikes or organized work stoppage against the state or a political subdivision of the state.
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Not all employee strikes are lawful. Whether a strike is lawful depends upon its purpose, its timing, and the conduct of the strikers. 

A strike is legal and protected by the Act if the employees are striking for economic reasons or to protest an unfair labor practice by the employer.

Economic strikers seek to obtain from the employer some economic concession such as higher wages, shorter hours, or better working conditions. They cannot be discharged, but they may be replaced. If the employer hires bona fide permanent replacements to fill the jobs of the economic strikers when the strikers apply unconditionally to return to work, the strikers are not entitled to reinstatement at that time. However, if the strikers do not obtain regular and substantially equivalent employment, they are entitled to be recalled to jobs for which they are qualified when openings occur once they make an unconditional request for reinstatement.

Unfair labor practice strikers seek to protest an unfair labor practice committed by their employer and they may not be discharged or permanently replaced. When the strike ends, absent serious misconduct on their part, they are entitled to have their jobs back even if employees hired to do their work have to be discharged.
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If the Board finds that economic strikers or unfair labor practice strikers who have made unconditional requests for reinstatement have been unlawfully denied reinstatement by their employers, the Board may award the strikers backpay starting at the time they should have been reinstated.

A strike is protected under the Act only if it is a “complete” strike; striking employees lose the protection of the Act if they engage in a “partial” strike of picking and choosing the work they will do or when they will do it or otherwise attempting to set their own terms and conditions of employment. Additionally, a strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, may be unlawful.
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Section 8(b)(4) of the Act prohibits strikes for certain purposes even though they are not necessarily unlawful if achieved by other means. An example would be a strike to compel an employer to cease doing business with another employer. While it is not unlawful for an employer to voluntarily stop doing business with another employer, and it is not unlawful for a union to request that it do so, it is unlawful for the union to strike to force the employer to do so.

A strike that violates a no-strike provision of a contract is not protected by the Act and the striking employees can be discharged or disciplined—unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. However, not all refusals to work are considered strikes and thus violations of no-strike provisions. Employees may participate in walkouts due to abnormally dangerous conditions, for example.

Section 8(d) provides that when either party desires to terminate or change an existing collective bargaining agreement, it must comply with certain conditions, and if these conditions are not met, a strike to terminate or change a contract is unlawful. 

​Strikers who engage in serious misconduct during a strike may be refused reinstatement to their jobs. Serious misconduct includes violence and threats of violence. The U.S. Supreme Court has ruled that “sitdown” strikes, where employees simply stay in the plant and refuse to work, thus depriving the owner of the property, is also not protected.

A union may waive, through bargaining, the employees’ right to strike during the term of a collective bargaining agreement, and may contract for a no-strike obligation, either express or implied. A broad and unqualified no-strike provision may prohibit a strike contesting any portion of the contract’s provisions, including an employer’s refusal to comply with an arbitration award.
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Unfair labor practice strikes are immune from a general no-strike clause if the practice is serious and destructive of the foundation of the agreement, and even an explicit no-strike clause does not waive the right of employees to strike against unfair labor practices. An agreement to arbitrate labor disputes gives rise to an implied obligation not to strike over the specified disputes. 

​Most private sector employees have a protected right to strike to protest employer decisions. As this blog has illustrated, however, there are critical limitations and qualifications on that right that employees and labor organizations need to keep in mind. 

Federal courts in Texas have been busy this year, issuing many significant decisions impacting employment litigation that employees should be cognizant of, as many of these decisions are precedent-setting and impact an employee’s ability to establish a prima facie case.

The EEOC provides an intake form that assists employees in determining coverage of their claims. The Fifth Circuit made clear it will not consider these intake forms as an employee's formal charge against his or her employer.

In Ernst v. Methodist Hospital System, 2021 U.S. App. LEXIS 17015 (5th Cir. 2021) (unpublished), an employee’s EEOC intake questionnaire did not satisfy Title VII’s charge-filing requirements because it was not verified as required by EEOC regulations and the employer was not provided with notice of the questionnaire or the claims therein. This is an important distinction employees should be aware of when pursuing an EEOC claim against an employer, as failing to timely file an EEOC charge may bar an employee's ability to pursue litigation.

​One element of an age discrimination claim is that the plaintiff must show he or she was replaced by a substantially younger employee. Many courts require that the replacement is not themselves within the protected group of employees 40 years or older. 

The court in Fenley v. Texas Plumbing Supply Company, Inc., No. 14-19-00851, 2021 WL 1881273 (Tex. App.—Houston [14th Dist.] May 11, 2021) (mem. op.), held direct evidence can support a prima facie showing of age discrimination even where the plaintiff is replaced by someone 40 or older. 

The court further ruled on another important conflict among courts reviewing age discrimination claims--whether the "same actor inference" absolutely precludes the possibility of bias. Many courts also apply the “same actor inference” to find that if the person wo hired the plaintiff is the same person who fired the plaintiff, a factfinder should infer that person was not biased. ​The court held that the same actor inference can be overcome by direct evidence of bias. In this case, there was direct evidence that a supervisor told the 70-year-old plaintiff “you are too old for this job.” 

To be actionable, sexual harassment must be "sufficiently severe or pervasive" to alter the terms and conditions of the victim's employment. The plaintiff in Rivas v. Estech Systems, Inc., No. 06-20-00058-CV, 2021 WL 2231262 (Tex. App.—Texarkana June 3, 2021) (mem. op.) sued her employer for sexual harassment after finding her supervisor had placed a camera under her desk aimed at her seat. 

The court held that the plaintiff could establish “severe or pervasive” harassment despite her being unaware of the camera for several months and despite the employer immediately removing it and firing the supervisor upon discovering the camera. Thus, a single event alone can be severe or pervasive.

The court further held that an employer must prove both elements of the Ellerth affirmative defense, which requires the employer show: (1) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior and (2) the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. 

The Texas Supreme Court in Aerotek, Inc. v. Boyd, __ S.W.3d __, 2021 WL 2172538 (Tex. May 28, 2021), made it easier for employers to establish assent to employee documents and agreements by an employee’s electronic signature. 

The court relied upon a provision of the Texas Uniform Electronics Transactions Act that provides “[a]n electronic record or electronic signature is attributable to a person [by] showing. . .the efficacy of any security procedure applied to determine the person to which the electronic record or electronic signature was attributable.” 

Standing alone, the plaintiff employees’ sworn denials that the electronic signatures at issue here with respect to an arbitration agreement was insufficient to create an issue of fact.

In a disappointing blow to disability discrimination plaintiffs, the court in Dillard v. SNC-Lavalin Engineers & Constructors Inc., __ S.W.3 __, 2021 WL 2149219 (Tex. App.—Houston [1st Dist.] 2021, held that a plaintiff’s allegation that he had diabetes and took medication for diabetes, standing alone, did not create an issue of fact whether he was disabled because he failed to show the diabetes caused him to be “substantially limited.” 

Despite the ADA requiring that the substantial limitation requirement shall be construed broadly in favor of expansive coverage and diabetes being virtually always found to impose a substantial limitation under federal regulations, the court held a determination of whether an impairment is substantially limiting still requires an individualized assessment. 

​Thus, a plaintiff must also show that diabetes substantially limits the plaintiff’s endocrine function or another major life activity. Diabetes is not a “per se” disability.

As this sample of recent decisions by federal courts in Texas illustrates, the required proof and procedural steps of employment litigation is ever-evolving and changing. Employees should always consult an experienced employment attorney before taking any steps that could jeopardize their claims.