Dallas Bar Association
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February 2019 Volume 44 Number 2
Partners in Philanthropy Campaign Exceeds $1.1 Million
BY MICHELLE ALDEN
Lisa Blue, of Baron & Blue, and Jeff Tillotson, of Tillotson Law, have joined forces to support this year’s Equal Access to Justice Campaign in the amount of $25,000. Lisa and Jeff are both long-time supporters of the Campaign and the Dallas Volunteer Attorney Program (DVAP). “DVAP is an organization that the Dallas community is so proud of,” said Lisa Blue. “I am especially glad to see DVAP working with various partners in the community to combine resources in order to achieve greater positive impact in the lives of our low-income neighbors. For example, DVAP and the UNT Dallas College of Law are working together to leverage the expertise and training of law students to assist DVAP appli- Lisa Blue cants at local legal intake clinics. There is a desperate need to provide legal aid for those who have no voice, and such partnerships work towards filling that need.” John VanBuskirk, who graduated last year from the inaugural class of UNT Dallas College of Law, got started early volunteering with DVAP. “Our first day of classes was August 11, 2014, and 10 days later I assisted at my first DVAP clinic. I was hooked. I helped with 31 DVAP clinics that first year. During law school, I performed 800 pro bono hours, and the one place I kept Jeff Tillotson returning to was DVAP,” John said. What benefits did he receive from working at the DVAP clinics? “It helped me to understand the law as I was seeing the law applied in real-life situations. The attorneys I encountered at the clinics became mentors in place of the alumni that the law school did not yet have. And although I expected to be treated like a law student, I was treated as a professional. Although I did not realize it at the time, I was also networking. Another great benefit for a busy law student is that the DVAP clinics helped me put life into perspective. Somewhere, someone else is happy with less than you have, and I saw this at each DVAP clinic. These folks did not ask for much, they just wanted to
be treated fairly. It also feels good to stick up for people who are treated unfairly just because they are poor and cannot afford an attorney.” John encountered landlords illegally retaining security deposits, a spouse refusing to honor a court order for visitation, a spouse needing to get out of an abusive relationship, a person who needed an expunction in order to get a job and housing, and a homeless quadriplegic whose benefits were being stolen. “I am now part of the first wave of alumni of the UNT Dallas College of Law. My advice to entering law students is to work with DVAP to get the most out of the law student experience.” John also shared an inspirational quote related to his pro bono work: “There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well.” – Walter Reuther “The importance of pro bono work cannot be overstated,” added Jeff Tillotson. “In order for access to justice to have meaning in our society, the courthouse doors must be open to everyone. It is also an opportunity to give back and help those less fortunate. All of us at Tillotson Law are proud to support DVAP.” Because of contributions from donors like Lisa and Jeff, the Equal Access to Justice Campaign has surpassed $1.1 million this year. These contributions are what allow DVAP to continue to assist thousands of clients every year, working towards justice every day. DVAP is a joint pro bono program of the DBA and Legal Aid of NorthWest Texas. The program is the only one of its kind in Texas and brings together the volunteer resources of a major metropolitan bar association with the legal aid expertise of the largest and oldest civil legal aid program in North Texas. For more information, or to donate, visit www.dallasvolunteerattorneyprogram.org. HN Michelle Alden is the Director of the Dallas Volunteer Attorney Program. She can be reached at aldenm@lanwt.org.
Focus | Employee Benefits/Labor & Employment Law
Top Five Employment Law Cases from 2018 BY ELISAVETA DOLGHIH
Last year brought us some important employment cases both nationally and locally, which affect the drafting of employment agreements, employment policies, and litigation of employment disputes. This article provides a brief overview of the top five employment cases, in the author’s opinion, that will have significant effect on how Texas employers conduct business and address employment disputes in 2019 and beyond. 1. Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018). In this much anticipated decision, the U.S. Supreme Court ruled that the arbitration agreements in which employees agree to arbitrate any claims against their employers on an individual, rather than on a class action basis, are enforceable and do not violate the National Labor Relations Act. The Court explained that the Federal Arbitration Act (FAA) requires the courts to enforce arbitration agreements the way they are written, including waivers of class or collective actions by employees. This decision resolves a circuit split and once-and-for-all forecloses NLRB’s argument that the class action waivers in arbitration agreements violate employees’ rights to participate in concerted activities. The decision will almost certainly lead to more employers adding class-action waivers to their arbitration agreements. 2. Mount Lemmon Fire Dist. v. Guido, 202 L.Ed.2d 262, 264 (U.S. 2018). The U.S. Supreme Court held that state and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have. In contrast, the ADEA, which prohibits age discrimination against anyone who is 40 years old or older, applies to private employers only if they have 20 or more employees. In reaching its conclusion, the Court unanimously adopted the Ninth Circuit’s reading of the statute resolving a circuit split. 3. In-N-Out Burger, Inc. v. NLRB, 894 F.3d 707 (5th Cir. 2018). The Fifth Circuit Court of Appeals held that employees of an Austin location of In-N-Out Burger had a right to wear “Fight for $15” buttons advocating a higher national minimum wage, at work. The employer asked employees to remove the buttons because they violated its uniform policy, leading to one employee filing an unfair labor practice charge with NLRB and complaining that the ban violated the National
Labor Relations Act (NLRA)’s Section 7, which gives employees the right to engage in “concerted activities” for the purpose of collective bargaining or mutual aid or protection. Both NLRB and the Fifth Circuit Court of Appeals rejected the restaurant’s argument that its unique public image and concern with food safety constituted “special circumstances” that justified the ban on buttons. Texas employers who ban their employees from wearing buttons at work should consider whether they can establish “special circumstances” before implementing such a ban. 4. Gardner v. CLC of Pascagoula, L.L.C., 894 F.3d 654, 657 (5th Cir. 2018). This case involved a Title VII claim from a nurse in an assisted living facility who alleged that she was sexually harassed by a patient with dementia and that she was retaliated against when she, as a self-protective measure, refused to attend the harasser. The Fifth Circuit Court of Appeals held that the record presented a genuine dispute of material fact of whether an assisted living facility took reasonable measure to prevent a resident from sexually harassing the nurse. This case highlights that Texas employers may be responsible for sexual harassment of their employees by third parties, such as company clients, vendors, or suppliers, and, therefore, must address such claims or risk potential liability. 5. Wittmer v. Phillips 66 Co., 304 F. Supp. 3d 627 (S.D. Tex. 2018). In this case, the Southern District of Texas was the first Texas court to recognize LGBT protections under Title VII. Although the court ultimately granted a summary judgment against the transgender employee who alleged that her offer of employment was rescinded due to her status, the court held that her “status as a transgender woman place[d] her under the protections of Title VII.” The court explained that transgender employees are protected from discrimination under Title VII under the sex stereotyping theory, which prohibits discrimination against those who do not conform to sex or gender stereotypes. While the Fifth Circuit has not yet opined on this issue, and Texas state law continued to allow employment discrimination based on sexual orientation or gender identity, this case signals a larger trend and will allow employees to make an argument for expanding the current protections for LGBT individuals in Texas. HN Elisaveta Dolghih is a partner at Lewis Brisbois Bisgaard & Smith LLP. She can be reached at leiza.dolghih@lewisbrisbois.com.
Inside 8 DBA Board Elects Chair and Vice Chair 12 Inaugural of Laura Benitez Geisler 17 Arbitrating Claims Under ERISA After EPIC 21 The Importance of Training to Avoid Employee Claims
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