Kelly Hart Hallman LLP

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With the passage of the 2018 Farm Bill, Congress legalized much, but not all, hemp products containing less than .3 percent THC concentration.  Cannabidiol, or CBD oil, is a hemp product that is touted as having many positive medical and health benefits.  CBD oil may or may not contain THC.  The media reports surrounding the legalization in the Farm Bill and intense marketing efforts of CBD oil distributors has caused some Texas employees to believe…
In Wittmer v. Phillips 66 Company, the Fifth Court of Appeals affirmed a trial court’s summary judgment in favor of Phillips 66 on a claim of employment discrimination based on transgender status.  While affirming the judgment for the employer, the Court wrote to reject the district court’s summary conclusion that Title VII prohibited employment discrimination on the basis of transgender status.  In affirming the trial court’s judgment, the appeals court expressly rejected the district court’s summary…
In a 9-2 vote, the San Antonio City Council voted to require private employers doing business in San Antonio to provide one hour of paid sick leave to employees for every 30 hours worked. The ordinance allows employees to accrue between 48 and 64 hours of paid sick leave to be used if the employee or the employee’s family member is sick or injured; is a victim of stalking, domestic abuse or sexual assault; or otherwise require…
Earlier this year, the City of Austin passed the first local ordinance requiring employers in Austin to provide paid sick leave to its employees.  The law was scheduled to take effect on October 1, 2018.  Late last week, the Austin Court of Appeals issued a temporary stay of the ordinance while the Texas Association of Business’ interlocutory appeal of the trial court’s denial of an application for temporary injunction is heard.  This will likely stay enforcement of the…
I’m traveling for work this week but today’s Supreme Court opinion is one I have been waiting for all term. In Epic Systems v. Lewis, the Court held that arbitration agreements between employees and employers that require mandatory arbitration of disputes can also require that all disputes be arbitrated individually and not as a class or collection action.  The impact of this case is significant in managing potential claims arising under the Fair Labor Standards…
One of the biggest criticisms I have of the FLSA is that it provides no safe harbor or protection for an employer, who having realized it made a wage and hour mistake, to voluntarily self-report and correct its mistake. Instead, it can encourage employers who learn of a potential FLSA violation that has not otherwise been discovered to continue its current practice hoping that the violation will not be discovered.  This week the U.S. Department of…
In Texas, absent a valid noncompete, an at-will employee is generally free to compete with the former employer so long as the employee does not take or use the company’s confidential information or trade secrets. Notwithstanding this general rule, employees also have common law fiduciary duties that limit what activities they can engage in prior to resigning employment.  The level of fiduciary duty owed to the company will depend on the duties and responsibilities of the employee…
This month the City of Austin passed the State’s first municipal paid sick leave ordinance requiring private employers to provide earned sick time to employees. Beginning on October 1, 2018 (and October 1, 2020 for employers with five or fewer employees), employers with employees working in the City of Austin must provide employees with earned sick time. The new law will eventually apply to employers of all sizes who pay an employee to perform work…
The U.S. Department of Labor recently abandoned its six-factor internship test in favor of the seven-factor primary beneficiary test utilized by most Courts. The primary benefit test adopts a temporal limitation for the internship that was not in the old six-factor test and incorporates two elements linking eligibility to the intern’s education programs and academic commitments.  For employers already using internship programs, they should review their policies, agreements and forms to incorporate the new test elements.  Employers considering whether to implement…
The #Metoo movement and high profile sexual harassment allegations involving prominent Americans has influenced provisions of the new tax reform law.  The Tax Cuts and Jobs Act signed by President Trump on December 20, 2017, limits the deductibility settlements paid on sexual harassment claims where the settlement agreement contains nondisclosure provisions.  Section 13307 of the Act provides, in relevant part, that: Payments Related to Sexual Harassment and Sexual Abuse. No deduction shall be allowed under…