Blog Archive


Boulette Golden & Marin L.L.P. partner Jason Boulette will be speaking at the 41st Annual UT Law CLE Page Keeton Civil Litigation Conference in Austin November 2-3, 2017.

Mr. Boulette’s presentation, “From Parties to Presidents: Dealing With Decision-Maker Commentary”, is scheduled for 9:30am Thursday, November 2nd. The conference will take place at Austin’s Renaissance Hotel. Additional information>>>

ESPN Sports Business Reporter Darren Rovell quoted our own Mike Golden as one of the “half-dozen experts” ESPN contacted nationwide on the issue of Jerry Jones’s threat that Dallas Cowboys players who did not stand for the National Anthem would be benched. ESPN shared Mike’s analysis along with the thoughts of professors from law schools across the country. The question was whether it would violate any employment laws for the Cowboys to refuse to allow players to play if they did not stand for the National Anthem. While there was some disagreement, the majority of the experts and Mike came to the same conclusion: the Cowboys would not be violating the law by sitting players who did not stand. Full article>>>

Boulette Golden & Marin L.L.P. partner Ann Abrams Price is scheduled to speak to the Texas Council on Family Violence’s annual Executive Directors’ Conference for Family Violence and Sexual Assault Programs. Ms. Abram’s breakout session, titled “FLSA Overtime Rule: What Do You Need to Know?” will begin at 3:30pm on Wednesday, February 15th, at the AT&T Executive Education and Conference Center in Austin.

Additional information >>>

Boulette Golden & Marin L.L.P. Partner Jason Boulette will address the Texas CLE Advanced Employment Law Conference in Dallas January 20th. Jason’s presentation will cover employment issues specific to “The Sharing Economy” and is scheduled for 1:15 pm on Friday, 1/20, at the Westin Galleria Hotel in Dallas. Additional information>>>

Steven Garrett of Boulette Golden & Marin L.L.P.  will present during the Employment Law 101 day of the Texas Bar CLE’s Advanced Employment Law Course in Dallas January 18th. Steven’s subject will be the Defense side of a two-part presentation on “The First 30 Days of an Employment Case” and is scheduled for 3:45 pm at the Westin Galleria Hotel. Additional information >>>

by Laura Merritt

The 2016 election cycle was, as most people agree, contentious and dramatic to a degree not seen in recent history. Unlike a typical presidential election, the controversies and strong feelings have not diminished, but some might say, have even intensified and may continue to do so after the new administration is in place.

This unique dynamic presents a heightened challenge for employers: whether and how to regulate political speech in the workplace in order to preserve employee morale and ensure productivity is not impacted by protracted and often inflammatory political conversations. On one end of the spectrum are employers choosing to not address it all, and on the other end, companies that prohibit political speech entirely.

Underlying these concerns is the presumption of “freedom of speech,” which is frequently misunderstood to mean “I can say whatever I want, wherever I want, without suffering any consequences.” What many employees do not realize is that, unless they work for a governmental entity, the First Amendment does not apply to their workplace rights.

What many employers do not realize is that a company’s legal obligations to take reasonable steps to prevent and correct unlawful harassment based on legally-protected categories such as race, sex, age, religion and so forth can be triggered by what we might classify as “political” speech. At first blush, one might think, how is that possible, since “political affiliation” is not protected by federal (or most states’) laws? This becomes clearer after considering the wide-ranging issues about which our country seems deeply divided—immigration policy, religious freedom, national security, LGBTQ issues, health care policy, etc. Nearly every issue that we consider a political topic either directly or indirectly implicates a protected category. And while a reasoned discussion between co-workers about immigration policy is not necessarily going to rise to the level of hostile environment based on national origin, the intense rhetoric and high emotion involved in the current political environment in the United States could potentially escalate a political debate into name-calling or worse.

Employers that have thought this through have generally taken a reasonable, middle-of-the-road approach. These companies do not prohibit political speech entirely (which can be difficult to enforce and legally problematic, as discussed below). Instead, these employers remind employees that civility is required at work; that company policies, including the requirements to engage in professional conduct, avoid discrimination, and similar conduct and communication policies, apply to political speech; and that communications violating these policies will not be tolerated. Each company’s approach will be unique to that company’s corporate culture, but some general considerations to ponder when creating a plan are:

  • Draconian policies (“no politics at work, ever!”) are not only virtually impossible to enforce, but as the NLRB recently held, may violate Section 8(a)(1) of the National Labor Relations Act, since “politics” can include matters relating to working conditions. See Chipotle Services LLC d/b/a Chipotle Mexican Grill and Pennsylvania Workers Organizing Committee, August 18, 2016.
  • Failing to address the issue at all can result not only in a decline in employee morale and productivity, but increase the risk of discrimination or harassment claims.
  • Communications that reference existing company policies geared toward “maintaining a respectful workplace” get to the heart of the matter without over-legislating conduct or getting bogged down in too much detail.
  • As with all employment policies, consistent enforcement is key. A company shouldn’t let employees who agree with the boss slide while bringing the hammer down on the other side.
  • Taking the time to assess and reassess the workplace atmosphere will allow companies to resolve issues before they escalate. If necessary, HR should meet separately with employees who are in conflict, and/or utilize the company’s dispute resolution process for managing the fallout from political conflicts.
  • Multistate employers should make sure to review any local or state laws that might impact the company’s approach to political speech regulation.
  • Employees should not feel pressured by anyone at work, but especially supervisors, to contribute or volunteer for any particular candidate, or be discouraged from engaging in political activity outside of work.

by Ann Price

The naming of Andy Puzder as President-Elect Trump’s choice for Secretary of Labor signals that the new overtime rule set to become effective on December 1, 2016 may ultimately languish. Mr. Puzder is on the record as a critic of the rule. Currently, enforcement of the rule is stayed pending the appeal by the Department of Labor of the nation-wide temporary injunction issued by a Texas federal court. A ruling by the Fifth Circuit is unlikely before the inauguration on January 20, 2016. The new administration could drop the appeal or issue a different rule after notice and comment. The outcome of the November elections also makes possible legislation or other executive action to stop or alter the rule.

As we reported in our May Newsletter, the new overtime rule intended to roughly double the minimum weekly salary level to qualify as an exempt executive, administrative or professional employee to $913 per week ($47,476 per year) and provided for automatic increases every three years. The court found that a lawsuit by 21 states and a number of business groups claiming that DOL exceeded its authority by making exemption turn on pay rather than duties were substantially likely to succeed.

Many employers who were waiting until December 1 to implement changes—such as salary increases or reclassification to nonexempt—opted not to make any changes and to await a permanent resolution. On the other hand, employers who implemented changes in anticipation of the new rule face difficult choices regarding whether or not to roll back those changes. While some employees may welcome being reinstated as an exempt employees, it would be more difficult to lower the pay of employees whose salaries were increased to meet the new minimum weekly amount. Changes made to positions, staffing, hiring, and schedules will also require careful analysis to determine the best course of action going forward.

Boulette Golden & Marin L.L.P. partner Laura Merritt will speak to Austin’s Corporate Paralegal Group Tuesday, November 7th. Ms. Merritt’s presentation will address Political Speech in the Workplace: When is political speech ok in the workplace? What rights do employers and employees have? What about the First Amendment? Can employers raise money for political candidates from their employees?

The presentation is available for CLE credit. Additional information>>>

Boulette Golden & Marin L.L.P. partner Jason Boulette will present ” New Opportunities in Employment Law for Civil Litigators” to the 40th Annual Page Keeton Civil Litigation Conference, which is scheduled for October 27/28 at the Four Seasons Hotel in Austin.

Mr. Boulette’s talk will explore the effects of the sharing economy on the traditional employment model as companies use technology to connect providers and end-users in novel ways, and employees increasingly view themselves as individual entrepreneurs with their own business aspirations. The presentation will be at 1:20pm on Friday, October 28th and is eligible for CLE credit. Additional information>>>

Boulette Golden & Marin L.L.P. partner Laura Merritt is scheduled to speak at the University of Texas CLE’s Essential Non-Compete and Trade Secret Law course in Houston October 7th. Her presentation, “Investigating the Employee Departure”, will focus on departing employees, who can carry the risk of departing company assets—both literally and figuratively, and offer advice on how to investigate possible misappropriation of company assets and how to prevent their misappropriation in the first place.

The presentation is eligible for CLE credit and will be at 1:20 pm at Norris Conference Center in Houston.

Additional information>>>

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