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Continuation of Pandemic-Related Remote Work as an ADA Accommodation: Lessons from the EEOC’s First Lawsuit

EEOC lawsuit graphicBy Janet Hendrick

Employers can glean valuable takeaways from the EEOC’s recent lawsuit against a facility management company, the EEOC’s first case alleging disability discrimination for an employer’s refusal to allow an employee to continue to work from home following pandemic-related remote work.  On September 7, 2021, the EEOC filed suit in federal court in Atlanta against ISS Facility Services, Inc. alleging that it unlawfully denied Ronisha Moncrief’s request for remote work as a reasonable accommodation under the Americans with Disabilities Act.  Moncrief, a health and safety manager for the company who has a pulmonary condition, sought treatment after she became sick at work.  Her doctor recommended that she work from home and take frequent breaks while working.  Around this time, due to the COVID-19 pandemic, ISS implemented rotating staff schedules, so that Moncrief and others worked from home four days a week.

Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

In June 2020, ISS required all staff to return to the facility five days a week. When Moncrief requested continued work from home as a disability accommodation, ISS denied her request.  According to the lawsuit, and of critical importance, other health and safety managers were allowed to continue working from home. A month later, Moncrief’s supervisor recommended that Moncrief be terminated due to performance issues and ISS terminated Moncrief shortly after. According to the lawsuit, and again of critical importance, Moncrief had not previously been informed that her performance warranted termination.  Although the EEOC attempted conciliation of Moncrief’s charge of discrimination, that failed and the EEOC filed the lawsuit.

Although the lawsuit is in very early stages, here are some valuable takeaways for employers:

  1. Promptly address and document performance issues
    •  One glaring issue in this case, assuming the allegations are true, is that Moncrief claims to have been unaware that her performance could land her on the chopping block. Be sure your managers are managing.  This requires addressing performance issues in a timely manner, including documenting the issues and communicating the issues and possible repercussions to the employee.  Managers frequently ignore performance issues or sugar-coat communications, leading to terminated employees claiming they never had a chance to improve. Timely documentation of performance issues serves as key evidence for employers accused of not adequately informing an employee of possible termination.
  1. Assess accommodation requests on a case-by-case basis
    • The EEOC has repeatedly cautioned employers to avoid a “one-size-fits-all” blanket approach to disability accommodations. Instead, employers are expected to conduct an individualized analysis of each accommodation request. Further, in light of the ISS Facility lawsuit, denials of remote work requests may garner heightened scrutiny, particularly if the employee at issue has worked remotely for a “trial period” during the pandemic.
  1. Treat similarly situated employees consistently
    • When it comes to disability accommodations, employers who treat employees in the same or similar positions inconsistently create unnecessary legal risk.
    • If an employer allows one employee to work from home but denies remote work to another employee with the same or a similar position, the employer better be ready to explain the disparity There may be justification for the different treatment, but it gives an appearance of an unjustified denial of an accommodation.
  1. Ensure job descriptions are updated and robust
    • Job descriptions tend to be among the lowest priorities for often-harried human resources professionals. But accurate (i.e., updated), robust job descriptions can be some of the best evidence an employer can offer if an employee challenges that a task is not an “essential” job function. This is often a key issue in disability discrimination cases, as the employee must be able to perform all “essential job functions” with or without a “reasonable accommodation” to come with the protection of the ADA as a “qualified individual with a disability.” Courts routinely defer to an employer’s judgment as to whether a job function is “essential” and often rely on a written job description.
    • Employers who take the time and resources to periodically review and update job descriptions can reap the benefits if facing this type of challenge. Bonus points for including such nontraditional requirements as reliable, predictable attendance and regular attendance at the assigned office or work facility, as long as the employer can back these up as truly “essential” if challenged.

Phillips Murrah’s Labor and Employment attorneys regularly advise employers on complex issues relating to ADA accommodations and performance management and can help strengthen job descriptions and other key employment documents.


For more information on this alert and its impact on your business, please call 469.485.7334 or email Janet A. Hendrick.

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Is this the end of non-compete clauses in America?

Non-compete agreement document for filling and signing on desk stockBy Janet A. Hendrick and Angela M. Buchanan

Janet Hendrick and Angela Buchanan portraits

Janet A. Hendrick and Angela M. Buchanan

For decades, non-compete clauses and other restrictive covenants have protected American businesses from unfair competition by preventing departing employees from working for a direct competitor for a specified time and within a specified geographical area.  Today, non-competes are still a useful tool, but their effectiveness depends on whether the covenant is narrowly tailored to legitimate business interests and, because state law governs enforceability, whether the relevant jurisdiction allows employers to enforce the covenants.

Although most states allow enforcement of reasonable non-competes, the increasing trend is to limit or ban their use.  In California, North Dakota, the District of Columbia, and Oklahoma, non-competes are either entirely or largely unenforceable as against public policy. Other states, including Maine, Maryland, New Hampshire, Rhode Island, and Washington, have banned non-compete agreements for low-wage workers.

This year, non-compete agreements have faced new obstacles in several jurisdictions. In May, Oregon passed legislation to curtail the use of non-competes so that they may only be enforced if the employee earns more than $100,533/year, the restricted period does not exceed 12 months, and the employer agrees in writing to provide the greater of (i) 50% of the employee’s compensation at the time of termination or (ii) $100,533 annually during the restricted period.  Nevada passed Assembly Bill 47 in May, which significantly increases Nevada’s restrictions on non-compete agreements.  The new Nevada law, which is effective October 1, 2021, voids non-compete agreements for hourly employees. The Nevada law also prevents employers from restricting employees from working for a customer if the employee did not solicit the customers for the former employer, the customer voluntarily left the employer, and the employee generally complies with the non-compete agreement. To give the new law teeth, it allows an employee who successfully challenges a non-compete to recover attorneys’ fees and costs. Following on the heels of Oregon and Nevada, Illinois passed legislation in June that prohibits non-compete clauses for employees earning less than $75,000/year and bans non-solicitation agreements, which restrict which customers an employee can call on, for employees earning less than $45,000/year.  Both of these salary thresholds will increase annually. The governor of Illinois is expected to sign the new prohibitive legislation so that the law will go into effect on January 1, 2022.

Like these states, the federal government has also taken steps to limit the use of non-competes. In July, President Biden issued the Promoting Competition in the American Economy Order, which asks the Federal Trade Commission to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.”  Although the Order does not change current law, it is a clear sign that non-competes will face extra scrutiny and may eventually be limited under federal law.

Considering the continuing wave of non-compete reform, employers, particularly those that operate in multiple states, should monitor developments in the relevant states and carefully consider choice of law and forum selection clauses for agreements. The Labor & Employment attorneys of Phillips Murrah have substantial experience in negotiating, drafting, and litigating issues relating to employment agreements and restrictive covenants.  If you would like additional information, please reach out to the firm.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding new rules that affect employers.


Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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As Dallas businesses scramble to comply with murky mask mandate, Governor files court challenge

mask mandate graphic strip

By Janet A. Hendrick

On the heels of Dallas County Judge Tonya Parker’s August 10, 2021 temporary restraining order nullifying Governor Abbott’s July 2021 prohibition on mask mandates within Dallas County, Dallas County Judge Clay Jenkins issued an order mandating masks for many Dallas employers effective August 12, 2021.  In addition to requiring universal indoor masking for all Dallas County public schools and childcare centers, and in buildings owned or operated by Dallas County, and encouraging masks in all public indoor spaces, the order requires “all commercial entities in Dallas County providing goods or services directly to the public” to develop, implement, and post a health and safety policy. The policy must include at a minimum universal indoor masking for all employees and visitors to the entity’s premises or other facilities and may also include other mitigating measures designed to control and reduce the transmission of COVID-19, such as temperature checks or health screenings. Businesses that fail to comply within three days risk fines of up to $1,000 per violation.

Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

Although the language regarding “commercial entities” appears to be limited to only those businesses that provide “goods or services directly to the public,” the FAQs on the Dallas County website broadly state that “[b]usinesses operating in Dallas County must develop a Health and Safety Policy and this policy must mandate that all employees and visitors wear a mask while on any property owned or operated by the business.”

Lack of clarity in Judge Jenkins’ order means businesses within Dallas County must decide whether to comply, even if they do not arguably provide goods or services directly to the public, or risk fines. The most risk-averse route for Dallas County businesses is to (1) mandate masks for all employees and visitors, and (2) prepare a health and safety plan that includes the mask mandate and any other transmission-mitigating measures the business chooses to include.  Employers that choose this path should post the health and safety plan prominently near the entrance to their premises before midnight on August 14, 2021 to avoid the possibility of a fine for noncompliance.

Just hours after Judge Jenkins’ issued his order, Texas Governor Greg Abbott and Attorney General Ken Paxton filed a mandamus petition with the Dallas Court of Appeals to strike down the order.  A hearing is set for August 24, 2021 before Judge Parker, at which point she will decide whether to turn the temporary restraining order into a temporary injunction pending a trial.


We will continue to monitor developments regarding the Dallas County order and are available to discuss its implications and requirements.

  • To contact Janet A. Hendrick, please call 469.485.7334 or email.
  • To contact Michele C. Spillman, please call 469.485.7342 or email.

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Texas Small Businesses Beware: New Laws Expand Liability for Sexual Harassment Claims

sexual harassment graphic 2By Janet A. Hendrick and Laurel L. Baker

Janet Hendrick and Laurel Baker portraits

Janet A. Hendrick and Laurel L. Baker

September 1, 2021 marks the beginning of a new era for sexual harassment claims against employers in Texas. Texas is notorious for protecting its pro-employer policies, but recent legislation goes against the grain to make all businesses, regardless of size, subject to liability for sexual harassment claims.

  1. Senate Bill 45 Broadens Definition of “Employer” and Scope of Liability

Senate Bill 45, signed by Governor Greg Abbott on May 30, 2021, adds Section 21.141 to the Texas Labor Code to define “employer” as “a person who (A) employs one or more employees; or (B) acts directly in the interests of an employer in relation to an employee.” Currently, only employers with fifteen or more employees can be sued for sex harassment, under either federal or Texas law, but the new Texas law will subject all employers doing business in Texas, regardless of size, to these claims. Additionally, the law expands liability to individuals, such as officers, directors, and other employees, so an employee claiming sex harassment can sue not just the employer, but these individuals.

  1. Senate Bill 45 Requires Employers to Act Immediately

Historically, employers subject to sex harassment claims can avoid liability by taking prompt remedial action when an employee alleges sex harassment.  The new Texas law changes this standard, requiring employers to take “immediate and appropriate corrective action.”  What exactly this standard will require remains to be seen, as Texas courts will no doubt face interpreting the standard for years to come.

  1. House Bill 21 Lengthens the Statute of Limitations for Employees to File Claim

Under current Texas law, an employee has 180 days to file a sexual harassment claim with the Texas Workforce Commission. House Bill 21, signed by Governor Abbott on June 9, 2021, extends this period to 300 days for claims based on conduct that occurred on or after September 1, 2021. The 180-day period will still apply to other discrimination claims, including discrimination based on sex, race, color, disability, national origin, or religion.

Although it is yet to be determined exactly how these changes will be interpreted and applied, it is imperative that all employers—regardless of size—be proactive to ensure they are taking measures to minimize liability for sexual harassment claims. Three important steps are (1) robust policies, that allow reporting through multiple avenues, (2) manager training, and (3) swift action to investigate claims. Phillips Murrah has extensive experience investigating and defending sex harassment claims and working with employers to make sure their training, policies and procedures protect their businesses. For assistance, contact your Phillips Murrah labor and employment lawyer.

Phillips Murrah’s labor and employment attorneys continue to monitor developments to provide up-to-date advice to our clients regarding new rules that affect employers.


Janet Hendrick portrait

Janet Hendrick is a Shareholder and a member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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OSHA issues COVID-19 Emergency Temporary Standard for healthcare employers

OSHA-Temp-Standard-GraphicBy Janet A. Hendrick and Phoebe B. Mitchell

On June 10, 2021, the Occupational Safety and Health Administration (OSHA) issued its long-awaited Emergency Temporary Standard (ETS) regarding mandatory safety standards for COVID-19 for healthcare employers pursuant to President Biden’s January 21, 2021 Executive Order. The ETS outlines what healthcare employers must do to protect healthcare workers from COVID-19. OSHA also issued voluntary guidelines for employers outside of the healthcare sector.

The rule is designed to protect workers who face the highest risk of contracting COVID-19 in the workplace – namely, those working in healthcare settings where suspected or confirmed COVID-19 patients may be treated. This includes employees in hospitals, nursing homes, and assisted living facilities; emergency responders; home healthcare workers; and employees in outpatient care facilities. The ETS exempts fully vaccinated workers from masking, distancing, and barrier requirements in well-defined areas where there is no reasonable expectation that any person with COVID-19 will be present.

Here are the key requirements of the ETS:

  • Written COVID-19 Plan: Healthcare employers with more than 10 employees must develop and implement a written plan that designates a safety coordinator who has the authority to ensure compliance with the ETS. The plan must include a workplace-specific hazard assessment and involve non-managerial employees in the hazard assessment and plan development. Additionally, the plan must include policies and procedures to minimize the risk of transmission of COVID-19 between employees.
  • Patient Screening and Management: Employers must limit and monitor points of entry to settings where direct COVID-19 patient care is provided. Employers must also screen and triage patients, clients, other visitors and non-employees.
  • Personal Protective Equipment (PPE): Employers must provide and ensure that each employee wears a facemask when indoors or in a vehicle with other employees for work purposes. Employers must provide and ensure that each employee working directly with suspected or confirmed COVID-19 patients use respirators and other PPE to prevent exposure to the virus.
  • Social Distancing: Employers must keep people six feet apart when indoors.
  • Physical barriers: Employers must install cleanable or disposable barriers at each work location in non-patient care areas where employees are not separated by six feet.
  • Vaccination: Employers must provide reasonable time and paid leave for vaccination and vaccine side effects.
  • No Cost: All requirements of the ETS must be implemented at no cost to the employees.

The rule will take effect when it is published in the Federal Register and healthcare employers must comply with the majority of the guidelines 14 days after publication.

Phillips Murrah’s labor and employment attorneys continue to monitor developments regarding COVID-19 rules in the workplace to provide up-to-date advice to our clients.


Janet Hendrick portrait

Janet Hendrick is a Director and member of the Firm’s Labor and Employment Practice Group.

For more information on this alert and its impact on your business, please call 214.615.6391 or email me.

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SCOTUS declines to hear same-sex parent case

Supreme Court building graphic

By Janet A. Hendrick and Mark E. Hornbeek

On December 14, 2020, the United States Supreme Court declined to review the Seventh Circuit Court of Appeals’ decision requiring the State of Indiana to list two females on the birth certificate of a child of a lesbian couple who was conceived by in-vitro fertilization. Ashlee and Ruby Henderson brought suit against the Indiana State Health Commissioner claiming that the State’s practice of listing only the birth mother and her husband, if any, violated their rights to equal protection under the United States Constitution. Indiana argued that forcing it to identify both women as parents would prevent the State from treating the sperm donor as a parent, while providing parental rights to an individual who provided neither the sperm nor the egg.

Same sex parents graphicThe trial court ruled in favor of the couple and ordered Indiana to treat same-sex couples the same as opposite-sex couples with regard to parentage on birth certificates. Indiana appealed, and the appeals court upheld the trial court’s decision. Indiana then filed a petition of certiorari asking the Supreme Court to hear the case.

Court-watchers have monitored this case, waiting to see if the Supreme Court’s 6-3 conservative majority, given the addition of new Justice Amy Coney Barrett, would take this opportunity to roll back rights of same-sex couples as established by the Court’s 2015 decision in Obergefell v. Hodges, legalizing same-sex marriage, and confirmed by the Court’s 2017 decision in Pavan v. Smith, which requires the government to provide the same rights to all couples with respect to parentage on birth certificates, regardless of the parents’ genders.

Many observers have been particularly interested whether Justice Coney Barrett, who has been critical of same-sex marriage, will seek to disturb Obergefell and Pavan and whether this case would present the opportunity for her to do so.

Once a party has appealed a lower court’s decision to the Supreme Court, it requires the vote of four justices before the Court will grant certiorari agreeing to hear the case. While we know that the Court denied certiorari, neither the margin of the vote, nor the vote cast by any individual justice, is publicly revealed, so we cannot know how any particular justice, including Justice Coney Barrett, voted. At least six justices, including at least three of the justices typically considered to be conservative, voted against hearing Indiana’s appeal.

The Court’s refusal to take this case may be a signal that the current Supreme Court is not interested in reversing or narrowing the rights established by its recent opinions. The value of the Court’s denial of certiorari in Box, however, is somewhat limited, as the denial does not necessarily indicate that the majority of justices agree with the lower court’s ruling. Rather, refusal to take the case means that fewer than four justices felt this particular case was worth review.  Because the Court refused to hear the case, it will not issue an opinion either confirming or upsetting the rights of same-sex couples or set any new precedent that would bind future courts.

As a result, the Seventh Circuit’s Box decision will continue to guide courts, at least within that court’s jurisdiction, which includes Wisconsin, Illinois, and Indiana. While other appellate courts will undoubtedly consider the Seventh Circuit’s opinion when faced with similar cases, it is possible that another court may reach a conflicting conclusion.  While the Supreme Court’s decision not to consider Box may signal some stability of same-sex rights, the door remains open for future challenges.


Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

For more information on this article, please call 214.615.6391 or email Janet A. Hendrick.

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Phillips Murrah recognized as Champion of Justice Law Firm by Texas Access to Justice Commission

The Texas Access to Justice Commission announced Phillips Murrah is among the recipients of their Champion of Justice Law Firm Award. The Commission presents the awards to attorneys and law firms who champion and support the important work of Texas legal aid and pro bono providers.

Phillips Murrah is recognized via our Texas office, located in Dallas.

Texas Access to Justice Champion of Justice Law Firm

Click to enlarge.

About The Texas Access to Justice Commission:

The Supreme Court of Texas created the Texas Access to Justice Commission in 2001 with the mandate of expanding access to justice for low-income Texans. Because there are a variety of challenges to access to justice in Texas, the Commission’s work is necessarily multi-faceted. These are our primary areas of focus:

  • Policy Initiatives: By promoting policies that remove barriers to our judicial system, the Commission works to create a framework for equitable access to justice.

  • Resource Development: Through ongoing fundraising efforts and a strong partnership with the State Legislature, the Commission works to secure funding and other resources for legal aid across Texas.

  • Awareness and Education: By educating the legal community about access to justice issues and the importance of pro bono work, and by training legal aid lawyers to effectively advocate for their clients, the Commission seeks to expand and enhance the delivery of legal aid and pro bono services across Texas.

To contact Phillips Murrah’s Dallas office, email or call:

Janet A. Hendrick photoJanet A. Hendrick
Shareholder
jahendrick@phillipsmurrah.com
214.615.6391
3710 Rawlins Street
Suite 900
Dallas, TX 75219


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PM Director Janet Hendrick praises Supreme Court LGBTQ decision

Phillips Murrah Director Janet A. Hendrick is featured as the lead source in a Dallas Observer article reviewing the Supreme Court decision to uphold workplace protections for LGBTQ Americans.

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

From the story:

Some employers’ advocates argue that, at the time the bill was drafted, it was intended to safeguard men or women from being discriminated against because of their sex. Justice Samuel Alito wrote in his dissenting opinion that the law wasn’t meant to include protections for sexual orientation or gender identity.

But it’s precisely because of their sex that gay, trans and gender-nonconforming people face workplace discrimination, said Janet Hendrick, a Dallas-based employment law attorney.

Although Texas’ Legislature does not explicitly outline protections for LGBTQ people, Hendrick said many companies have inclusive policies because “it’s the right thing to do.” Still, change can be slow going for certain small businesses in the Bible Belt, she said.

Hendrick, who works closely with employment advocacy groups like the North Texas LGBT Chamber of Commerce, said she was pleasantly surprised by the Supreme Court’s decision.

“It’s literally like a rainbow sparked up from ashes in light of all the bad news recently,” Hendrick said. “So for this decision to come coinciding with Pride Month, it’s wonderful, uplifting news.”

Hendrick is an employment law attorney based in the Firm’s Dallas office. Contact her by phone at 214.615.6391 or by email at jahendrick@phillipsmurrah.com.

Read the full article here: https://www.dallasobserver.com/news/north-texans-happy-about-supreme-court-lgbt-decision-see-more-work-ahead-11919900

For more information about this Supreme Court decision, read a summary of the decision here.

Phillips Murrah Shareholder Janet A. Hendrick elected as Fellow of the Texas Bar Foundation

Phillips Murrah Director Janet Hendrick elected to Texas Bar Foundation

Phillips Murrah Shareholder Janet Hendrick elected as Fellow of the Texas Bar Foundation

Phillips Murrah Shareholder Janet A. Hendrick has been elected as a member of the Fellows of the Texas Bar Foundation. Attorneys elected as Fellows of the Foundation have demonstrated outstanding professional achievement and commitment to the improvement of the justice system throughout the state of Texas. Election is a mark of distinction and recognition of Janet’s contributions to the legal profession.

“It is my absolute privilege and honor to be elected as a Fellow of the Texas Bar Foundation,” said Janet. “I look forward to working with other Fellows to continue the important work of the Foundation.”

Selection as a Fellow of the Texas Bar Foundation is restricted to members of the State Bar of Texas. Each year the top one-third of one percent of Texas attorneys are invited to become Fellows. Once selected, nominees must be elected by the Texas Bar Foundation Board of Trustees.

The Texas Bar Foundation is the largest charitably funded bar foundation in the country. Founded in 1965 by lawyers determined to assist the public and improve the profession of law, the Texas Bar Foundation has maintained its mission of using the financial contributions of its membership to build a strong justice system for all Texans. To date, the Texas Bar Foundation has distributed more than $20 million throughout Texas to assist nonprofit organizations with a wide range of justice-related programs and services.

To contact Janet, click HERE to visit her website bio, or reach out to her at the following information:

Janet A. Hendrick, Shareholder in Phillips Murrah’s Dallas office
EMAIL: jahendrick@phillipsmurrah.com
PHONE: 214.615.6391

For more information about the Texas Bar Foundation, please visit: www.txbf.org.

Hendrick partners with North Texas LGBT Chamber of Commerce

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Director Janet A. Hendrick joins the North Texas LGBT Chamber of Commerce, supporting the organization for 2019-2020 as a Bronze Partner and taking on a hands-on role.

“I met the President of the Chamber, Tony Vedda, at the Dallas Business Equality Conference a few years ago, where I was asked to speak about evolving rights for LGBT employees in the U.S.,” she said. “We stayed in touch and he later asked me to be a member of the Chamber’s Governance Committee, the role of which is to assist in selection of the Chamber’s Board of Directors.

“I spoke again this year at the Business Equality Conference, which is sponsored by progressive Dallas-based companies like Toyota, Southwest Airlines and American Airlines.”

Janet is an experienced employment litigator who regularly appears in state and federal court to defend employers of all sizes against discrimination, harassment, retaliation, and related claims. She is a frequent speaker and author on topics including gender diversity in the legal profession, workplace accommodations and leave management, evolving workplace protections of LGBT employees, and the rapidly expanding gig economy.

The North Texas Lesbian Gay Bisexual Transgender Chamber of Commerce has been the premier business organization for the LGBT community in north Texas since 2005, working to improve the region’s economic vitality and support the positive attributes of a diverse workplace, supply chain and community.

To learn more about the North Texas LGBT Chamber of Commerce and its mission, click here.

Hendrick to give keynote presentation at Texas Business Equality Conference

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Janet A. Hendrick, Director and member in the Firm’s Labor and Employment Practice Group, will provide an update on legal developments in LGBTQ workplace protections on June 11 at the 4th Annual Texas Business Equality Conference hosted by the North Texas GLBT Chamber of Commerce.

Her presentation will highlight current state and federal legislation, upcoming Supreme Court cases, and best practices for maintaining compliance and educating employers on navigating areas where potential workplace could arise.

Attendees will network with other business professionals from around the state, hear remarks from national speakers about the importance of diversity in the workplace, and attend breakout sessions designed to help businesses to grow and thrive.

Janet is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach. Whether training managers on employment law compliance to minimize an employer’s legal risk or representing the employer in court or arbitration, she brings years of experience and in-depth legal knowledge to deliver results.

For more information about the conference, visit the North Texas GLBT Chamber’s website here.

Director to present employment law lecture for SMU School of Law

Janet Hendrick

Janet Hendrick is an experienced employment litigator who tackles each of her client’s problems with a tailored, results-oriented approach.

Janet A. Hendrick, an employment attorney and Director in Phillips Murrah’s Dallas office, will share her insight and expertise with students of Southern Methodist University’s Dedman School of Law later this month.

Hendrick will present on key labor and employment matters for businesses as part of the law school’s Business Law Boot Camp on May 30, 2019.

“I will be teaching the Boot Camp students, who have finished their first or second year at SMU Law School, about labor and employment laws from a business perspective, with the goal of teaching them the different sources and implications of our country’s workplace laws,” she said. “As a SMU Dedman School of Law alum, I am delighted to have this opportunity to share my experience and insight from my years of practicing in this area.”

The Boot Camp is intended to introduce vocabulary, concepts and skills needed to effectively understand how business works so students are able to communicate with and advise business clients, including as regulatory and litigation counsel, according to the law school’s website.

Supreme Court holds class action limits in employee arbitration contracts

It’s been a big week in employment law at the Supreme Court.  Earlier this week, the Court agreed to hear three cases, Bostock v. Clayton County, Georgia, Altitude Express, Inc. v. Zarda, and R.G. & G.R. Harris Funeral Homes v. EEOC, to decide whether Title VII’s prohibition against discrimination “because of sex” protects LGBTQ employees.  Today, in Lamps Plus, Inc. v. Varela, the Court held that a party to an arbitration agreement may arbitrate only individual claims, rather than class claims, unless the arbitration agreement explicitly and unambiguously provides for class arbitration.

Janet Hendrick Profile portrait

Janet A. Hendrick represents and counsels employers on issues including proper classification

In a 5-4 vote, the Court overturned the Ninth Circuit Court of Appeals’ decision that the arbitration agreement between Lamps Plus and employee Frank Varela allowed him to bring class claims in arbitration even though the arbitration agreement was ambiguous on this point. Varela filed suit in a California federal court on behalf of a putative class of employees after approximately 1,300 employees’ tax information was disclosed as part of a phishing scam.  Because Varela had signed an arbitration agreement at the time of hire, Lamps Plus moved to compel arbitration.  The arbitration agreement was ambiguous on the issue of whether a party may pursue class claims in arbitration. The district court granted Lamps Plus’ motion and sent the case to arbitration, but allowed Varela to pursue his claims on a classwide basis in arbitration.  Lamps Plus appealed to the Ninth Circuit, which acknowledged the arbitration agreement was ambiguous, construed the ambiguity against Lamps Plus as the drafter of the agreement, and affirmed the district court’s decision.  Lamps Plus appealed to the Supreme Court.

Chief Justice Roberts wrote the opinion, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  The primary question before the Court was “whether, consistent with the [Federal Arbitration Act, which governed the arbitration agreement], an ambiguous agreement can provide the necessary ‘contractual basis’ for compelling class arbitration.”  The majority answered this question in the negative, pointing out that arbitration on a classwide basis “undermines the most important benefits of” traditional individualized arbitration.  In its 2010 decision in Stolt-Nielsen S.A. v. AnimalFeeds International Corp., the Court held that a court may not compel arbitration on a classwide basis when the arbitration agreement is silent on the availability of class arbitration.  In Lamps Plus, the majority held that “[l]ike silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to ‘sacrifice[] the principal advantage of arbitration,” which is the individualized form of arbitration envisioned by the Federal Arbitration Act.  After all, ultimately, “[a]rbitration is strictly a matter of consent” between the parties.

Today’s decision continues the pro-arbitration trend from the Supreme Court over the past few years and comes nearly a year after Epic Systems Corp. v. Lewis, in which the Court upheld the use of class action waivers in arbitration agreements between employers and employees.


By Janet A. Hendrick
April 24, 2019

If you have questions about this decision, contact Janet Hendrick, who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Not a Trump Card? Shuttle Drivers are Independent Contractors Under NLRB Test Emphasizing Entrepreneurial Opportunity

By Janet A. Hendrick
January 28, 2019

Focusing on “entrepreneurial opportunity” available to shared-ride drivers, the Republican-majority National Labor Relations Board handed employers a victory on January 25, 2019 by holding that Dallas-Fort Worth area SuperShuttle drivers are independent contractors, rather than employees who may unionize. The decision, which overturns a 2014 decision that favored workers, will make it easier to classify workers as independent contractors, but has no effect on state or federal wage and hour laws.

In SuperShuttle DFW, Inc. and Amalgamated Transit Union Local 1338 (Case 16–RC–010963), by a 3-1 party-line vote, the employer-friendly Board continued with its reversal of Obama-era decisions that favored employees.  The case arose when the union sought to represent a unit of shuttle drivers, including about 90 franchisees.  In August 2010, the Board’s Acting Regional Director found the franchisees were independent contractors, not employees, and dismissed the union’s petition for representation. The union appealed and last week’s decision was the final nail in the coffin for the union.

The decision is a good overview of how the NLRB analyzes whether a worker is an employee, who may unionize, or an independent contractor, who may not. The Board applies a 10-factor test (which differs from other agency tests, such as the IRS 20-factor test), none of which is controlling:

  1. Extent of control by the company over the detail of the work;
  2. Whether the worker is engaged in a distinct occupation or business;
  3. The kind of occupation and whether the work is usually performed with or without supervision;
  4. Required skill in the particular worker’s occupation;
  5. Whether the company or the worker supplies the tools and place of work for the worker;
  6. The worker’s length of tenure with the company;
  7. Whether the worker is paid by time or by job;
  8. Whether the work performed by the worker is part of the regular business of the company;
  9. Whether the parties believe they are in an employer-employee relationship; and
  10. Whether the principal is or is not in the business.

There is no “bright-line rule” and no “shorthand formula” for determining whether a worker is an employee or not, and the total factual context must be assessed and weighed.

The SuperShuttle Board returned to the traditional common-law test for determining independent contractor status and overruled the Obama Board’s 2014 decision in FedEx Home Delivery (361 NLRB 610) (“FedEx II”), which the federal court of appeals for the D.C. Circuit vacated.  In FedEx II, the NLRB held that FedEx drivers were employees, declining to adopt an earlier court decision that involved the same parties and held that the drivers were independent contractors.  That earlier decision viewed the common-law factors “through the lens of entrepreneurial opportunity,” rather than focusing on “an employer’s right to exercise control” over the workers’ job performance.  The Board in SuperShuttle found the FedEx Board “impermissibly altered the common-law test” to one of “economic dependency,” a test Congress specifically rejected.

Noting that the NLRB has long considered entrepreneurial opportunity as part of the independent contractor analysis, the SuperShuttle Board analyzed the common-law factors to find in favor of SuperShuttle, shutting down the union’s efforts to represent the drivers.  The key factors in the Board’s decision were:

  • The franchisees’ significant initial investment in their business by purchasing or leasing the primary instrumentalities for their work—a van (as well as gas, tolls, and repairs) and the dispatching system–and execution of an agreement with SuperShuttle (Unit Franchising Agreement), which states in bold capital letters “FRANCHISEE IS NOT AN EMPLOYEE OF EITHER SUPERSHUTTLE OR THE CITY LICENCEE”;
  • The franchisees’ almost unfettered opportunity to meet or exceed their overhead, as they have total control over how much they work, when, and where and they keep all fares they collect;
  • Analogy of the shuttle drivers to taxi drivers, whom Board precedent holds are independent contractors, largely because they retain all fares they collect and the cab companies lack control over the manner and means by which the drivers conduct business;
  • The franchisees’ agreement to indemnify SuperShuttle against all claims relating to their actions, greatly lessening SuperShuttle’s motivation to control the franchisees’ actions;
  • Although the franchisees are subject to several requirements, including dress and grooming standards and van inspections, these requirements are imposed by state-run DFW Airport, not SuperShuttle;
  • The franchisees’ near-absolute autonomy in performing their work;
  • SuperShuttle does not provide benefits, sick leave, vacation, or holiday pay to the franchisees, or withhold taxes or payroll deductions;
  • Five of the franchisees are corporations.

Although some of the factors indicated employee status (such as no particular skill/specialized training and the fact that the drivers’ work is an integral part of SuperShuttle’s business), the NLRB found that none of these outweighed the factors supporting independent contractor status.

The SuperShuttle Board explained that entrepreneurial opportunity is not “a trump card” in the independent contractor analysis, but rather a “prism” through which to evaluate the 10 common-law factors “when the specific factual circumstances of the case make such an evaluation appropriate.”  So, where a qualitative evaluation of common-law factors shows significant opportunity for economic gain and significant risk of loss, the worker is likely an independent contractor and not permitted to unionize.

Although the SuperShuttle decision is without doubt a victory for employers, employers should remember the decision is not binding on other agencies, such as the Department of Labor, which enforces federal wage and hour laws.


Janet Hendrick Profile portrait

Janet A. Hendrick

If you have questions about this decision, contact Janet Hendrick,who represents and counsels employers on issues including proper classification, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Mandatory arbitration agreements and independent contract drivers

In a unanimous opinion (except for Justice Kavanaugh, who was recused from the case) expected to have broad implications for the transportation industry, the Supreme Court delivered a blow to employers that seek to enforce mandatory arbitration agreements for claims filed by drivers and other transportation workers classified as independent contractors.

SCOTUS opinion link

CLICK IMAGE TO VIEW OPINION.

The high court affirmed a decision from the First Circuit Court of Appeals that an exemption in the Federal Arbitration Act for interstate transportation workers applies to all workers, whether classified as employees or independent contractors.  The employer, New Prime Inc., an interstate trucking company, sought to compel mandatory arbitration of claims by one of its drivers, Dominic Oliveira, who filed a class action in federal court alleging New Prime violated the Fair Labor Standards Act by denying its drivers lawful wages.

After the district court and the First Circuit sided with the driver, New Prime petitioned the Supreme Court to overturn the First Circuit’s May 2017 ruling that the term “contracts of employment” in the Section 1 exemption of the FAA includes not only employees, but also independent contractors.  New Prime’s broad mandatory arbitration agreement included a “delegation clause” that gave an arbitrator authority to decide whether the parties’ dispute is subject to arbitration.

The Supreme Court nonetheless agreed with the First Circuit that a court, rather than an arbitrator, should determine whether the contract in question is within the coverage of the FAA, citing the Court’s 1967 Prima Paint decision. Turning to the interpretation of “contracts of employment” in the FAA exemption, the Court employed the “ordinary meaning” analysis of the statute’s language to conclude the term is not limited to employees because at the time Congress enacted the FAA in 1925, “contract of employment” described “any contract for the performance of work by workers.”  Justice Ginsburg filed a short concurring opinion.


Janet Hendrick Profile portrait

Janet A. Hendrick

If you have questions about this decision, contact Janet Hendrick, who regularly represents employers in court and arbitration, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

Texas Court Sends Non-Compete Agreement Lawsuit to Arbitration

Non compete agreement

Reversing a decision that an employee’s lawsuit to declare her non-compete agreement void was not subject to arbitration, the First Court of Appeals in Houston held yesterday that the lawsuit fell within the scope of the parties’ arbitration agreement. Sue Ann Lopez was a sales representative for IPFS Corporation, which provides insurance premium financing, before she left to work for a competitor.

When IPFS threatened to sue her for breaching a non-solicitation agreement, Lopez filed a declaratory judgment action to have the non-solicitation covenant declared void.  Since Lopez had signed an arbitration agreement, IPFS filed a motion to move the lawsuit to arbitration.  Lopez opposed that motion, arguing that her claim was not a “legal claim” subject to arbitration, because she was seeking equitable relief.  The trial court sided with Lopez and denied IPFS’ motion to compel arbitration and IPFS appealed.

The issue on appeal was whether Lopez’s claim fell within the scope of the arbitration agreement. The appeals court emphasized that the arbitration agreement, which was governed by the Federal Arbitration Act, included a broad scope of covered claims and only three exclusions:  claims for workers’ compensation or unemployment benefits; claims for temporary equitable relief; and administrative proceedings before the U.S. Equal Employment Opportunity Commission.  Because Lopez did not bring any of these excluded claims, the Houston appeals court easily found in favor of arbitration, reversed the trial court, and remanded for dismissal and entry of an order moving the case to arbitration.

This Texas decision is another reminder of the strong policy in favor of enforcing arbitration agreements and finding claims subject to arbitration absent an express intention to exclude them.


Janet Hendrick Profile portrait

Janet A. Hendrick

If you have questions about this decision, contact Janet Hendrick, who regularly handles Texas noncompete matters in court and arbitration, in the Dallas office of Phillips Murrah at (214) 615-6391 or at jahendrick@phillipsmurrah.com.

ALERT: Austin Court of Appeals: Austin Paid Sick Leave Unconstitutional

November 16, 2018

Today, the Austin Court of Appeals held that the Austin paid sick leave ordinance, which would require private employers to provide an hour of paid sick leave to employees for every 30 hours worked beginning on the first day of employment, violates the Texas Constitution because it is preempted by the Texas Minimum Wage Act.

The City of Austin enacted the ordinance in February 2018.  A group of employers and business associations filed a declaratory judgment action seeking injunctive relief and the district court denied a temporary injunction.  The appeals court reversed and remanded to the district court to issue the requested temporary injunction, prohibiting the City from enforcing the ordinance, and for further proceedings.

Although there may be more paid leave legislation on the horizon, for now private Texas employers have no obligation to provide paid sick leave.

Janet A. Hendrick, Director
Phillips Murrah P.C. – Dallas
214.615.6391

Phillips Murrah

Phillips Murrah Director Janet Hendrick mentioned in Power Players: Women Leading in Law

Phillips Murrah Director and employment attorney Janet A. Hendrick was mentioned in the October edition of Power Players: Women Leading in Law newsletter, published by University of Texas at Austin School of Law‘s Center for Women in Law.

Phillips Murrah Women Empowered

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The mention was regarding Janet’s move to Phillips Murrah’s Dallas office.

Janet is deeply committed to the advancement of women in the legal profession. She has been an active member of the National Association of Women Lawyers and the Dallas Women Lawyers Association, and is a thought leader and sought-after speaker on gender diversity in the legal profession.

With the addition of Janet, over 40 percent of Phillips Murrah’s Directors are women, more than twice the national average for large law firms. A significant number of women fill leadership roles at the Firm, including three of the four positions on the Executive Committee.

“I am impressed with the dynamic people at the Firm, especially the leadership,” Janet said of her motivation to join Phillips Murrah. “I’m also excited about the plans for the Dallas office and thrilled to be a part of building the future of the Firm.”

 

 

Dallas employment attorney Janet A. Hendrick tells Law360 why she joined Phillips Murrah

On Oct. 10, Law360, an in-depth legal industry publication, published an article about Phillips Murrah Director, Janet A. Hendrick, who recently joined our Firm in the Dallas office.

Janet is an employment attorney with almost two decades of experience. She is deeply committed to the advancement of women lawyers and is a thought leader and sought-after speaker on gender diversity in the legal profession.

From the article:

She told Law360 on Wednesday that she was impressed by the firm’s leadership.

Phillips Murrah opens Dallas office“When I met the folks at the firm and understood their commitment to women, and retaining talented women, and putting women in leadership roles with the firm, it was really unparalleled,” she said. “Forty percent of our directors are women, which far surpasses the national average. That’s just something that’s extremely important to me.”

The full-service platform offered by Phillips Murrah — compared with her prior firm’s employment focus — and its competitive rates have prompted positive responses and feedback from clients, she said. Another draw in coming to Phillips Murrah, she said, is the firm’s desire to grow its Texas footprint and the fact that she would have a hand in helping “build something new.”

“Absolutely, the firm is committed to growing the firm in the Dallas office, so we are in discussions with additional individuals now,” she said. “We don’t have a set number, but we plan to bring additional attorneys to fill client needs.”

Janet aggressively defends clients in state and federal courts and in arbitration on a range of matters, and provides counsel on a variety of issues that employers face, including best employment practices and compliance, audits and investigations, employee training, and cutting-edge legal issues surrounding the rapidly expanding gig economy.

Click to read our full release about Janet joining Phillips Murrah.

Phillips Murrah welcomes Janet A. Hendrick to Dallas office

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah welcomes Dallas employment attorney, Janet A. Hendrick, to our Dallas office.

Phillips Murrah P.C. is pleased to announce that Janet Hendrick has joined the Firm in its Dallas-based office. Janet is an employment attorney with nearly 20 years of experience. She brings the number of Phillips Murrah attorneys serving the Texas market to twelve.

“We are excited that Janet has joined Phillips Murrah as we continue to expand our Dallas office,” said President and Managing Partner, Thomas G. Wolfe. “She is a brilliant lawyer with a first-class resume.”

Janet represents employers in several capacities, including proactively counseling clients on best employment practices and compliance, advising on cutting-edge legal issues surrounding the rapidly expanding gig economy, handling audits and investigations, and conducting training. She aggressively defends clients in state and federal courts and in arbitration on a range of matters including employee defection, fair employment practices, and nonsubscriber employee injury defense.

“I like to understand a client’s objectives and what it considers to be a victory,” she said, adding that communicating initially and then often with clients to understand their business needs is fundamental to being a strategic partner.

Janet is deeply committed to the advancement of women in the legal profession. She has been an active member of the National Association of Women Lawyers and the Dallas Women Lawyers Association, and is a thought leader and sought-after speaker on gender diversity in the legal profession. With the addition of Janet, over 40 percent of Phillips Murrah’s directors are women, more than twice the national average for large law firms. A significant number of women fill leadership roles at the Firm, including three of the four positions on the Executive Committee.

“I am impressed with the dynamic people at the Firm, especially the leadership,” Janet said of her motivation to join Phillips Murrah. “I’m also excited about the plans for the Dallas office and thrilled to be a part of building the future of the Firm.”

Janet has been recognized as one of the Texas Diversity Council’s Dallas Top 50 Women in Law and the National Women’s Council’s Top 15 Business Women in Dallas. Additionally, she is a member of the North Texas GLBT Chamber of Commerce Governance Committee, the American Bar Association Labor and Employment Section, the Dallas Bar Association Labor and Employment Section, and the Collin County Bar Association.

Prior to joining Phillips Murrah, Janet practiced with Fisher Phillips, a national labor and employment firm, in Dallas. She also previously practiced with Jones Day in Dallas, New York, Washington DC and London.

See post about Law360 coverage here: Dallas employment attorney Janet A. Hendrick tells Law360 why she joined Phillips Murrah 

Phillips Murrah – Dallas Office:
3710 Rawlins Street, Suite 900
Dallas, Texas 75219

Main: (214) 238-2525
Direct: (214) 615-6391
Fax: (214) 434-1370