Federal Discrimination and Harassment Law

Shark Eat Shark: DOL and NLRB Tangle on Joint Employment and Independent Contractors

Shark Eat Shark: DOL and NLRB Tangle on Joint Employment and Independent Contractors

he Obama-era DOL and NLRB rolled out some guidance and opinions on joint employment and independent contractors. Frankly, the agency actions were crazy broad. The result: Tons more contractors and employees on someone else’s payroll looked to the Feds like your employees. We’ve written about it for the Corporate Counsel Newsletter and Corporate Counsel Review.

EEOC Looks to Spruce Up its Harassment Guidance

EEOC Looks to Spruce Up its Harassment Guidance

Since the last time the EEOC updated its guidance on workplace harassment (oh say, in 1990), a lot has happened. A generation was born, graduated high school and joined American culture. There have been a couple court cases. The EEOC now thinks it’s time for some spring cleaning – proposing a new guidance document found here.

How to Handle Digital Damage Control: Texas Lawyer

How to Handle Digital Damage Control: Texas Lawyer

Lee Winkelman and Alan Bush are freelance contributors for Texas Lawyer. Their latest article, “How to Handle Digital Damage Control” appeared in the In-House Focus section on May 1, 2017.

Employees can get into a lot of trouble with a smartphone and a social media account or two. Here’s what Lee and Alan had to say about it:

Avoid Costly Litigation by Staying Up to Date on Slurs: Texas Lawyer

Avoid Costly Litigation by Staying Up to Date on Slurs: Texas Lawyer

Texas Lawyer has signed up Alan Bush and Lee Winkelman as freelance contributors.  Their latest article, “Avoid Costly Litigation by Staying Up to Date on Slurs,” appeared in the September 7, 2015 issue in the In-House Texas section. 

Here’s what Alan and Lee had to say about staying up to date on slurs:

Texas Lawyer – Out of the Boxing Ring, Into the Courtroom

Texas Lawyer – Out of the Boxing Ring, Into the Courtroom

Texas Lawyer has signed up Alan Bush as a freelance contributor.  His latest article, "Out of the Boxing Ring, Into the Courtroom," appeared in Out of Order commentary section.

Here's what Alan had to say about what boxing has taught him about litigation:

Punitive Damages Are Preventable

Six-figures.  That's what a rogue manager can cost you in punitive damages if he accidentally blows a call that HR would have caught.  It's surprisingly easy for an untrained manager to step in it.  We've written about a couple examples.

Don't add zeros to an employment claim.

Train your folks on your EEO and anti-harassment policy.  Training, plus a solid EEO and anti-harassment policy, may give you a strong defense against punitive damages.

Never training your employees on your EEO policy strips your defense.  In EEOC v. Service Temps, the company had never trained its folks.  The EEOC latched onto that.  At trial, the EEOC secured $68,000 in punitive damages and an injunction that imposed mandatory training.  The Fifth Circuit refused to overturn the award.

Punitive damages are no stranger to the Texas Supreme Court too.  In Safeshred v. Martinez, the Court expanded punitive damages to Sabine Pilot wrongful discharge claims.  Some commentators say the opinion lets Texas state discrimination law plaintiffs collect punitive damages more easily.

Over the past couple years, your company may have pushed training to the backburner.  The Fifth Circuit and Texas Supreme Court may have just sent you a friendly reminder to put training back on the agenda.

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer — Behind Enemy Lines: Employee-Side Lawyer Tactics

Texas Lawyer has signed up Alan Bush as a freelance contributor.  His latest article, "Behind Enemy Lines: Employee-Side Lawyer Tactics," appeared on May 14 in the In-House Texas pullout.

Here's what Alan had to say about how he stays one step ahead of employee-side opposing counsel: