With summer fast approaching, Dallas, Texas employment lawyer Keith Clouse offers the following tips for employers to help them embrace the summer season while remaining compliant with state and federal employment laws.

 
1. If you plan to hire an unpaid summer intern, know the laws regarding unpaid internships.
2. If you plan to hire seasonal workers, be sure that your policies and procedures address temporary workers. For example, these workers may not qualify for the benefits offered to other employees.
3. If you allow your employees to dress more casually in the summer, remind them that their casual dress must still convey a professional image.
4. Anticipate vacation requests and have a plan for handling them. Many employees ask for time off in the summer. To avoid understaffing and the appearance of favoritism, make sure that your vacation policies are solid and communicated in advance to your employees.

Companies turn to Mr. Clouse and the other Dallas, Texas employment lawyers at his firm for innovative and effective representation in all kinds of employment matters. To speak with one of the employment law attorneys at Clouse Dunn LLP about an employment law matter, contact them via email at info@clousedunn.com or telephone at 214 220 3888

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Dallas, Texas employment law attorney Keith Clouse represents employers that are being investigated by the Department of Labor for violations of federal employment laws.  He guides these employers through the investigation process and helps them cooperate with the investigators while protecting their business interests. His advice helps these employers reach favorable resolutions.

 
Mr. Clouse notes that the United States Department of Labor recently settled a matter involving violations of the Fair Labor Standard Act’s overtime provisions with Wal-Mart Stores Inc. The company has agreed to pay approximately $5 million in back wages, damages, and civil money penalties.  The Department of Labor alleged that Wal-Mart failed to compensate approximately 4,500 employees with overtime pay because the company classified the employees as exempt from the FLSA's overtime requirements. The investigation found that the employees were nonexempt and thus due overtime pay for all hours worked beyond 40 in a work week.

If your company faces an investigation by the Department of Labor or if your company’s policies and procedures are not fully compliant with the FLSA’s requirements, contact Mr. Clouse and the other Dallas, Texas employment lawyers at his firm. You may reach the attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888.

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

The Fifth Circuit Court of Appeals recently ruled that employees could not pursue claims against their former employer for fraudulently inducing them to terminate their employment with the employer and to accept employment with a wholly owned subsidiary. Sawyer v. E.I. du Pont de Nemours & Co., No. 11-40454 (April 20, 2012), available at http://www.ca5.uscourts.gov/opinions/pub/11/11-40454-CV0.wpd.pdf.

The Court noted that at-will employees in Texas are precluded from bringing fraud claims against their employers for loss of employment. The Court then examined whether the employees who were employed pursuant to a collective bargaining agreement were at-will employees. It concluded they were because, even though the collective bargaining agreement limited the employer’s ability to terminate employees, it also allowed the employer to terminate the agreement with notice. The Court next examined whether employees who were not covered by the collective bargaining agreement were also employed at-will. It held they were; no evidence existed as to any specific language of any oral agreements between the employees and the employer to the contrary. Because all the employees were at-will employees, they could not pursue fraud claims against their former employer.

To speak to Keith Clouse, a Dallas, Texas employment lawyer, or to the other Dallas employment lawyers at his firm, contact Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Keith Clouse, a Dallas, Texas employment lawyer, represents employers and employees in various employment law disputes. He cautions employers and employees alike to be vigilant when using email. By way of example, he highlights a recent news story.

According to this news story, a large British company mistakenly sent emails to the entire staff of its investment unit. The email message was sent to some 1,300 employees and informed them that their employment had been terminated and that they should turn over company property as they left the building. The employer later stated that it intended to send the email to just one employee and that a clerical error resulted in the email being sent to so many others.

While that employer was able to retract its email message fairly quickly, not all email mistakes can be rectified so quickly—or at all. Depending on the nature of the email mistake, an email could lead to a person’s termination or wind up as an exhibit in an employment-related lawsuit.

To speak to Mr. Clouse and the other Dallas employment lawyers at his law firm about an employment law matter, contact the employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

The Texas Supreme Court recently ruled on a case involving the wrongful termination of an employee because the employee refused to perform an illegal act. Safeshred, Inc. v. Martinez, No. 10-0426 (Tex. Apr. 20, 2012), available at http://www.supreme.courts.state.tx.us/historical/2012/apr/100426.pdf.

The employee refused to drive a truck because the truck did not comply with safety regulations. The employer fired him for this refusal. The employee then sued for wrongful termination and won. The jury awarded him punitive damages.

A narrow exception to the at-will employment doctrine allows an employee to sue an employer if the employee was fired for the sole reason that the employee refused to perform an illegal act. The Court first held that these wrongful termination claims are tort claims, not contract claims. As such, punitive damages would be appropriate if the plaintiff presented sufficient evidence of the employer’s malice. The Court provided several examples of what malice could be in a wrongful termination matter. It then concluded that the plaintiff did not present legally sufficient evidence for the jury to believe that the employer acted with malice in firing him, and it reversed the punitive damages award.

To speak to a Dallas, Texas employment lawyer about an employment law matter, contact the employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Dallas, Texas employment lawyer Keith Clouse handles all aspects of employment law, including equal pay issues. Women make up nearly half of America’s workforce, yet, a significant gender earnings gap persists.

Mr. Clouse explains some of the laws designed to close this gap:
• Equal Pay Act: This law requires all employers to pay equal wages to women and men in the same establishment for performing substantially equal work. This applies to all forms of pay (salary, overtime pay, bonuses, stock options, vacation pay, and other forms of compensation). Unequal compensation can be justified only if the pay differential is attributable to a factor other than gender or to a fair seniority, merit, or incentive system.
• Title VII of the Civil Rights Act of 1964: This law prohibits employers with at least 15 employees from discriminating against employees on the basis of their sex in all terms and conditions of employment, including pay.
• Lilly Ledbetter Fair Pay Act of 2009: This law clarifies that each paycheck that contains discriminatory compensation is actionable under Title VII of the Civil Rights Act of 1964.

Employers should review their pay practices to ensure that their compensation systems are not discriminatory. To discuss equal pay issues with Mr. Clouse, contact him and the other Dallas, Texas employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Dallas non-compete lawyer Keith Clouse litigates disputes over non-compete agreements and the wrongful use of trade secrets. By nature, these cases involve the disclosure of a company’s confidential information; a fact finder often cannot resolve factual issues without reviewing sensitive documents.

Judges often sign protective orders to help parties protect confidential information. These orders set out the rules regarding the disclosure of information and documents. For example, some court pleadings may be filed “under seal,” meaning that the pleadings will not be available to the public, and some documents may be labeled “attorneys’ eyes only,” meaning that only attorneys (and not clients) may view those documents.

Even with a protective order, however, a company may not believe its confidential information can be truly protected in a lawsuit. If a company is concerned about privacy issues, it should consider arbitrating employment disputes in a confidential setting. By requiring employees to enter into arbitration agreements, the employer may be able to prevent the disclosure of sensitive information during litigation.

To speak to Mr. Clouse about a non-compete dispute or a dispute over the use of trade secrets, contact him and the other Dallas employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Dallas non-compete lawyer Keith Clouse litigates disputes over non-compete agreements. He also serves as a mediator in other non-compete cases. He notes that non-compete disputes rarely proceed to trial. Instead, parties usually resolve these disputes via mediation early in the litigation process. He discusses this process below:

Non-compete cases move rapidly and expenses mount quickly. The stakes are often high and the cases can be emotionally charged. While parties may not attempt mediation in other employment law disputes until after the parties have conducted discovery and filed dispositive motions, parties embroiled in a non-compete dispute may consider early mediation as a way to bring finality to the situation and to avoid costs spiraling out of control.

If parties elect to mediate a non-compete case early on, they should choose a mediator experienced with non-compete litigation. Hiring an experienced non-compete litigator as a mediator elevates the mediator’s credibility. It also ensures that the mediator understands the relevant issues and that the mediator will be capable of helping the parties reach a compromise that fully addresses the parties’ concerns.

To speak to Mr. Clouse about a non-compete dispute or about a non-compete agreement, contact him and the other Dallas employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Dallas employment lawyer Keith Clouse drafts employment law agreements for both executives and employers. A key provision in any employment law agreement concerns an employer’s right to terminate an executive because of the executive’s misconduct, or “for cause.” “Cause” is defined in the employment agreement, and the definition typically includes the executive’s:
• conviction of a serious criminal act;
• embezzlement from the company;
• willful and continued failure to substantially perform the executive’s duties;
• fraud;
• willful conduct that is materially injurious to the employer; and
• a material breach by the executive of the employment agreement.

 
Of course, when negotiating the employment agreement, an employer may push for a broader definition of cause and an executive may try to limit the definition of cause.

Because it is the executive’s misconduct that gives rise to a termination for cause, when an employer terminates an executive for cause, the employer’s contractual obligations typically end on the termination date; the employer is not obligated to pay the executive separation pay or provide the executive with any further benefits.

To speak to Mr. Clouse about an employment agreement or about another employment law issue, contact him at the Dallas employment law firm Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Unfortunately, when an employer fires an employee, not all loose ends can be addressed at the termination meeting. So, can an employer withhold the terminated employee’s final paycheck until the employee addresses the employer’s concerns? For example, can an employer tell the terminated employee that she will get her final paycheck if and when she delivers her company-issued tool belt and pays for the damage she caused to a company-owned truck?

 
“No,” according to Dallas, Texas employment lawyer Keith Clouse; an employer cannot condition the receipt of an employee’s final paycheck on the employee’s completion of certain requirements. Instead, in most situations, Texas law requires an employer who fired an employee to pay the employee within six calendar days after the employee’s termination. Failure to do so could result in the employee taking legal action against the employer.

 
While an employer cannot withhold an employee’s final paycheck, in some situations, an employer and an employee can agree in writing that certain expenses will be deducted from the employee’s final paycheck. If such an agreement exists and it complies with the applicable requirements, then the employer may deduct money from the employee’s final paycheck to cover those expenses.

To speak to Mr. Clouse about handling the termination of an employee or about another employment law issue, please contact him and the Dallas, Texas employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

According to a recent news article, the unemployment rate for Texas fell for the sixth consecutive month to 7.1% during February. The rate is now the lowest it has been since March 2009 and is a full percentage point lower than it was in August 2011.

Job growth in Texas exceeded 27,000 positions during the month of February. These new positions were created in a variety of industries, including government, trade, transportation, utilities, education, and health services.

On a national level, unemployment rates declined in 29 states and rose in 8 states during February. (Rates were unchanged in 13 states and Washington, D.C.) Employers added jobs in 42 states, the most in almost a year. The national unemployment rate is 8.3%, the lowest it has been in three years.

As the economy slowly recovers and employers hire more employees, employment law issues may arise. If your company faces an employment law dispute or has concerns about how to handle an employment law legal issue, you may wish to speak to an experienced employment lawyer about your company’s legal rights and obligations. If so, please contact the Dallas, Texas employment law attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

How an employer handles a termination can significantly impact future dealings with the terminated employee. Therefore, before terminating an employee, an employer must address certain concerns, such as whether all termination policies have been followed, how to handle the employee’s last moments on the job, and whether a difficult situation warrants a call to an employment lawyer before the termination meeting.

An employer must also decide whether to ask the terminated employee to release any potential legal claims in exchange for severance pay. If so, the employer should not require the employee to sign the release at the termination meeting. Instead, the employer should give the employee ample time to consider the release and separation pay agreement.

Federal law requires an employer to give certain employees several weeks to consider a separation agreement. But, even when not legally obligated to do so, an employer should still give an employee adequate time to review and consider the proposed agreement. Few people have the presence of mind to carefully review a legally binding document minutes after being fired, and forcing an employee to sign a separation agreement on the spot could lead to allegations that the employer coerced the employee into signing the agreement.

To speak to an employment law attorney about terminating an employee, contact the Dallas, Texas employment law attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

A frequent violation of the Fair Labor Standards Act concerns unpaid summer interns. Many business owners want to introduce students to their businesses, but, because of financial concerns, they hire the students as unpaid interns. According to the United States Department of Labor, however, unless the relationship meets certain criteria, an intern must be paid in accordance with the FLSA’s minimum wage and overtime provisions. The determination of whether an internship is excluded from these provisions depends upon whether all of the following factors are met:

1. The internship is similar to the training given in an educational environment;
2. The internship is for the intern’s benefit;
3. The intern does not displace an employee and works under the close supervision of existing employees;
4. The employer derives no immediate advantage from the intern’s activities, and its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages.

 
If all factors are met, the FLSA’s minimum wage and overtime provisions do not apply to the intern. In reality, most businesses expect an immediate advantage from their interns’ activities, and, therefore, most companies should pay their interns.

To speak to an employment law attorney about an FLSA matter, contact the Dallas, Texas employment law attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Keith Clouse, a Dallas, Texas employment lawyer, advises employers and employees on workplace legal issues and litigates employment-related disputes. In these tough economic times, he has observed that employers must make difficult decisions about whether to offer certain fringe benefits to their employees. He explains:

 
Fringe benefits are non-wage compensation given to employees in addition to their wages. Examples include:
• Group health insurance;
• Dental, vision, and prescription drug plans;
• Paid sick leave, personal leave, and vacation leave;
• Retirement benefit plans and pension plans;
• Long-term care insurance;
• Life insurance;
• Tuition assistance;
• Relocation assistance;
• Child care benefits;
• Adoption assistance;
• Wellness programs;
• Employee discounts for particular vendors (such as hotels, theme parks, or other businesses); and
• Paid parking or parking reimbursement.

 
Employers are generally not required by law to provide fringe benefits, and benefit programs can be expensive. That said, most employers provide some fringe benefits to full-time employees, and a solid benefit program may help an employer attract and retain employees.

 
To speak to Mr. Clouse or to another Dallas employment law attorney about an employment law matter, please contact Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Keith Clouse, a Dallas, Texas employment lawyer, advises employers and employees on a variety of workplace legal issues and litigates employment-related disputes for his clients. He also negotiates and drafts employment agreements for employers and executives. Many of these employment agreements contain non-solicitation clauses (also known as no-raid clauses). He explains this term below:

 
Non-solicitation clauses may take two forms. One form of non-solicitation clause prevents an employee from soliciting the employer’s clients for a period of time after the employee stops working for the employer. The other form prohibits the employee from soliciting the employer’s employees and inducing them to quit working for the employer. This type of clause is sometimes referred to as a “no-raid,” “non-recruitment,” or “no-hire” clause.

No-raid clauses are designed to protect an employer’s business interest in keeping its workforce intact even after the departure of key employees. Typically, the departing employee is forbidden from soliciting all current employees as well as any employee who resigned within six months of the employee’s departure date. If the employee does solicit these individuals, the employer may sue the employee for breach of contract.

To speak to Mr. Clouse about negotiating an employment agreement or about resolving a dispute over an employment agreement, please contact him and the other employment law attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

The Fifth Circuit Court of Appeals recently ruled in a physician’s employment discrimination case. Nassar v. Univ. of Tex. S.W. Medical Center, No. 11-10338 (5th Cir. March 8, 2012), available at http://www.ca5.uscourts.gov/opinions/pub/11/11-10338-CV0.wpd.pdf. The jury found that the doctor was constructively discharged and retaliated against. The employer appealed.

Constructive discharge claims are essentially extreme hostile work environment claims and require a plaintiff to prove the existence of an aggravating factor, such as: (1) demotion; (2) salary reduction; (3) job responsibility reduction; (4) reassignment to inferior work; (5) reassignment to work under a younger supervisor; (6) badgering, harassment, or humiliation calculated to encourage the employee’s resignation; and (7) offers of early retirement or continued employment on less favorable terms. The doctor could only prove harassment, and this harassment did not make the working conditions so intolerable that a reasonable employee would feel compelled to resign. Thus, the Court vacated the judgment regarding the constructive discharge claim.

The Court concluded that evidence supported the retaliation claim because it showed that the employer blocked the doctor’s attempts to become employed by an affiliated entity in order to punish him for complaining about discrimination. The Court affirmed the judgment regarding the retaliation claim. The Court then remanded the case for reconsideration of the doctor’s monetary recovery and attorneys’ fees.

The Dallas employment law attorneys at Clouse Dunn LLP represent physicians in employment-related lawsuits and contract negotiations. To speak to these employment lawyers, contact them via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

The United States Bureau of Labor Statistics recently issued a news release regarding the 2011 averages for regional and state unemployment statistics.

According to the news release, annual average unemployment rates declined in 48 states and rose in 2 states and the District of Columbia. Eight of the nine geographic divisions reported statistically significant decreases in unemployment rates in 2011. For the fourth year in a row, the Pacific area recorded the highest unemployment rate (11 percent in 2011).

Employment-population ratios (the proportion of the civilian population 16 years old or older with a job) decreased in 24 states and the District of Columbia, increased in 19 states, and remained unchanged in 7 states. West Virginia reported the lowest employment-population ratio, 49.5 percent; this state has held the lowest employment-population ratio each year since 1976.

The overall jobless rate in the United States in 2011 was 8.9 percent, and the overall employment-population ratio was 58.4 percent.

The attorneys at Clouse Dunn LLP represent employers in employment-related matters, including those regarding unemployment issues. To speak to a Dallas, Texas employment lawyer about an employment law matter, contact the employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

The Texas Supreme Court recently held that a threat to fire an at-will employee for refusing to sign a jury waiver does not amount to coercion that would invalidate the jury waiver agreement. In re Frank Kent Motor Co., No. 10-0687 (Tex. March 9, 2012), available at http://www.supreme.courts.state.tx.us/historical/2012/mar/100687.pdf.

The at-will employee had worked for the employer for twenty-eight years. Although he initially resisted signing a jury waiver that would require him to forego a jury trial in a dispute with his employer, he immediately signed the jury waiver after his supervisor warned him that he would be fired if he did not. Almost a year later, the employee was terminated. He sued and demanded a jury trial. The employer moved to strike the jury demand, and the trial court denied this motion.

The employee argued that the trial court did not abuse its discretion in granting him a jury trial because he was coerced into signing the jury waiver by his supervisor’s threat of termination. The Court disagreed: because the employer had the right to fire the employee for almost any reason, including his refusal to sign the jury waiver, threatening to terminate him for failing to sign the waiver could not amount to coercion.

To speak to a Dallas, Texas employment lawyer about an employment-related legal issue, contact the employment lawyers at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Most civil lawsuits, including employment law cases, settle well before trial. Keith Clouse, a Dallas, Texas employment lawyer, explains some of the reasons why so many employment-related lawsuits settle.

First, cost motivates many settlements. Litigation is expensive, and attorney fees add up quickly. For employers, costs also include the time and attention of senior managers and employees in the human resources department.

Second, although many parties begin the litigation process feeling angry or defensive, most eventually realize that they would rather sacrifice the vindication of a positive trial outcome for a known resolution. Few cases are so one-sided that a party knows with certainty that the party will win, and jury verdicts are notoriously unpredictable.

Other factors pushing parties towards settlement include:
• Negative publicity for the employer;
• Stress and anxiety for the people involved in the lawsuit;
• The employer’s exposure to other, similar lawsuits;
• Loss of privacy for the employee; and
• Damage to the morale of the remaining employees.

To speak to Mr. Clouse or to another Dallas, Texas employment lawyer about an employment-related legal issue, contact the employment lawyers at Clouse Dunn LLP. You may reach these lawyers via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com

Most businesses need employment law attorneys to litigate disputes with employees and to provide general employment law advice. Keith Clouse, a Dallas, Texas employment law counselor, suggests ways an employer can minimize the expenses associated with such services.

First, the employer should always contact a lawyer at the first sign of legal trouble; often employment law issues can be resolved quickly (and thus cheaply) if caught and handled right away.

Before meeting with counsel, the employer should fully prepare. A human resources representative should gather all the files and documents related to the situation and organize them in an easy-to-understand system. Doing so avoids legal fees for an attorney’s time spent sorting and organizing paperwork. The human resources representative may also wish to prepare a concise presentation of the facts, including a chronology of events and a list of the key people involved. Doing so enables the attorney to jump straight into analyzing the situation. Of course, any such document should be clearly marked as a confidential attorney-client communication.

To seek employment law advice from Mr. Clouse or from another Dallas employment lawyer, contact the attorneys at Clouse Dunn LLP via email at info@clousedunn.com or telephone at 214 220 3888. 

KEITH A. CLOUSE

Clouse Dunn LLP

214.220.2722
214.220.3833 ( fax)
keith@clousedunn.com