1. Update on Recent Employment Law Changes and Trends Jay K. Rutherford 777 Main Street, Ste. 2100 Fort Worth, TX 76102 (817) 334-7246 jrutherford@jw.com Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization

2. RECENT TRENDS:

3. Equal Employment Opportunity Commission: Charge Trends Trend 2006: Less Charges but More $$$ Trend 2007: Retaliation Continues to Grow

4. EEOC: Total Charges Down Since 1993

5. EEOC: Retaliation Charges Up Since 1993

6. EEOC Charges: $ The Bottom Line $

7. EEOC Policy Guidance: Caregiving Employees On May 23, 2007, the EEOC issued new guidelines regarding how discrimination against individuals with caregiving responsibilities may violate Title VII and/or the Americans with Disabilities Act

8. EEOC Policy Guidance: Relevant Evidence of Disparate Treatment of Female Caregivers Pre-Employment Inquiries about Responsibilities Derogatory Comments Less Favorable Treatment After the Event Treatment in Comparison to Other Female Workers Job Promotions and Tracks Deviation from Policy Asserted Reason Credible

9. RECENT DEVELOPMENTS: 5th Circuit & Texas Supreme Court

10. 5th Circuit: Americans with Disabilities Act  Rodriguez v. ConAgra Grocery Prods. Co.: Applicant's perceived "uncontrolled" diabetes not a legitimate justification for withdrawal of job offer, even if ADA permits employer to consider the consequences of an employee's failure to control impairment on job performance, where employer did not conduct individualized assessment  Jenkins v. Cleco Power: Sitting qualifies as a major life activity under the ADA. However, employer reasonably accommodated employee by engaging in the interactive process and proposing a job requiring alternating periods of sitting and standing

11. 5th Circuit: Title VII of the Civil Rights Act  Burlington N. & Santa Fe Ry. Co. v. White: Title VII anti-retaliation provision does not require the prohibited harms and actions to be related to employment or to occur at the workplace. However, the alleged retaliatory actions must be materially adverse to a reasonable employee or applicant  Turner v. Baylor Richardson Med. Ctr: Employer’s failure to follow its progressive disciplinary procedures not sufficient evidence that her termination for poor job performance was pretext for race discrimination

12. Texas Supreme Court: Arbitration  In re Dallas Peterbilt, Ltd.: 2006 Decision compelling arbitration where employee received summary of arbitration policy and signed an acknowledgment  In re Dillard’s Dep’t Stores, Inc: 2006 Decision compelling arbitration where employee received notice of arbitration policy and agreed to it by continued employment even though she did not actually sign an acknowledgement

13. Texas Supreme Court: Constructive Discharge Baylor Univ. v. Coley  2007 Decision from Texas Supreme Court  Constructive Discharge Cannot be Proven by a Material Change in Job Assignments  In Texas, constructive discharge is defined as “an employee’s reasonable decision to resign because of unendurable working conditions”

14. Texas Supreme Court: Covenants Not to Compete Alex Sheshunoff Mgmt. v. Johnson  2006 Decision from Texas Supreme Court  Renders Covenants Not to Compete Easier to Enforce in Texas  Covenant was enforceable because it was reasonable and because such covenants become enforceable when the employer performs the promises made in exchange for the covenant

15. Texas Supreme Court: Jury Waivers In re General Elec. Capital Corp.  2006 Decision from Texas Supreme Court  Pre-Dispute Contractual Jury Waivers are Enforceable  Contractual jury waiver provision, which was conspicuous because it was in bold font and in all capital letters, met burden of party seeking to enforce provision that waiver was knowing and voluntary

16. LEGISLATIVE CHANGES: The Texas Legislature

17. The Texas Legislature: Re-employment of Service Members  State version of USERRA  Prevents termination of state service members (National Guard) because of training or call to duty  Service member entitled to return to same position with same benefits  Service member must give written or actual notice of intent to return to employment

18. The Texas Legislature: Commercial Vehicle Drivers  Effective 9-1-07  Employer liable for Class B misdemeanor if employee allowed to drive a commercial motor vehicle and: Employee failed drug test or other test Employee is disqualified from driving Car is out-of-service Employer is subject to an out-of-service order that affects the driver of the vehicle

19. The Texas Legislature: Noteworthy Bills Not Passed  Concealed Handguns Act: Would have protected a concealed handgun licensee’s right to carry a handgun in his or her car, even if the car was parked in a company parking lot  Minimum Wage Increase: Several minimum wage increase bills were introduced during the 80th legislative session but failed to pass

20. QUESTIONS??