By Steve Shardonofsky and Tiffany T. Tran

iStock_000072969307_MediumSeyfarth Synopsis: In a somewhat rare interlocutory appeal, the Fifth Circuit reviewed and reaffirmed a 40-year old case holding that emotional distress and punitive damages are not available under the ADEA. This decision rejected the EEOC’s own interpretation and is welcomed news for employers doing business in the Fifth Circuit because damages
Continue Reading Fifth Circuit Protects 40-Year-Old Case and Affirms ADEA Limits On Recoverable Damages

By: Clark Smith

We all know that Title VII prohibits religiously based discrimination.  So at first glance it seems an odd result to hear that the Fifth Circuit recently ruled that a nursing home did not violate Title VII when it terminated an aide for refusing to help an elderly resident pray the Rosary, a Catholic prayer practice.  But when
Continue Reading Title VII Religion Plaintiffs Must Prove That Employers Know About Religious Beliefs

By Clark Smith

A One-Two Punch For Employers 

Last July, we alerted you to a Fifth Circuit decision that limited the whistleblower protections of the Dodd‑Frank Act of 2010. In that case, the court held that Dodd‑Frank protects whistleblowers only if they report a securities-law violation directly to the Securities Exchange Commission (“SEC”), as opposed to just making an internal complaint. This month, in Villanueva v. U.S. Department of Labor, the Fifth Circuit published a decision curtailing the reach of whistleblower protections under the Sarbanes-Oxley Act (“SOX”). Taken in tandem, these two decisions are welcome news for energy employers because they significantly restrict the reach of whistleblower protections, particularly for employees working outside the U.S., who may be disinclined to make complaints directly to the SEC or who may rely on alleged violations of foreign laws to make their case.

SOX protects employees of publicly-traded companies who engage in certain protected activities such as reporting violations of certain federal laws, such as mail and wire fraud.  SOX creates a private cause of action for employees who have been retaliated against for engaging in such protected activities. Last week, in Villanueva, the Fifth Circuit ruled that SOX’s whistleblower provision only protects reporting violations of U.S. federal law. 
Continue Reading Another Victory for Energy Employers: The Fifth Circuit Limits SOX Whistleblower Suits to Violations of U.S. Federal Law

By James R. Beyer

If your employee sends you a text saying that she cannot report for work because she needs to be with her father in a hospital emergency room, does this qualify as FMLA notice?  According to the Fifth Circuit Court of Appeals:  “NO!” 

Before you go deleting those messages, however, remember that employers should not lose sight of the longstanding admonition that employees do not need to specifically mention FMLA in an absence request and that employers have a duty to inquire further into a potential FMLA leave request if warranted by an employee’s statements. 

The Fifth Circuit recently found that an on-call business analyst who texted her supervisor in order to request a change in work rotations because of her sick father did not make a proper or formal request for FMLA leave.
Continue Reading What Do You Mean My Text Message To My Supervisor Doesn’t Qualify as an FMLA Request?

By Johanna T. Wise and Kevin A. Fritz

Since its historic passage in 1990, the Americans With Disabilities Act (“ADA”) has taken a wild drive down the Interpretation Highway. As our travels have shown, when employees claim discrimination under the ADA, they must prove (among other things) that the employer failed to make a reasonable accommodation based on the employees’ known limitations. In a recent Fifth Circuit decision, however, the court took an unexpected detour and (potentially) paved a new road in the accommodation process. 

In Feist v. Louisiana, the plaintiff claimed she was discriminated against when her employer failed to grant her request for a free, reserved, on-site parking space to accommodate her disability: osteoarthritis of the knee. The plaintiff claimed her request was a reasonable accommodation under the ADA. The employer said it was not, and the lower court agreed. It held that the plaintiff would only be eligible for such a spot if she could show the reserved space was an essential function of the position. 

Now, we’ve been down this road many times and we’ve never seen “parking spot” in the “essential function” portion of a job description. And based on the lower court’s reasoning, an accommodation outside of the essential functions of a position would never be required by an employer. But the Fifth Circuit disagreed and reversed that decision. It held that the ADA does not require a link between a requested accommodation and an essential job function.
Continue Reading A Parking Spot as a Reasonable Accommodation? Well…Maybe So.