Kullman Firm Newsletter


In light of the recent devastation caused by Hurricane Harvey and with Hurricane Irma currently threatening landfall in the United States, it is important for employers to prepare for unique employment law challenges that might arise during and following natural disasters.  For example, employers are likely to encounter requests for leave and reasonable accommodations under federal employment law statutes, such as the Family and Medical Leave Act and the Americans with Disabilities Act, from employees who suffer (or have a family member who suffers) a physical or emotional injury as a result of a natural disaster.

Additionally, employers should remember that they are still bound by the requirements of the Fair Labor Standards Act even in times of natural disaster.  Employers are not required under the Fair Labor Standards Act to compensate non-exempt employees who do not come to work during a storm, regardless of whether the employer decides to close the worksite or the employee chooses to miss work.  However, if an employer closes a worksite due to a storm for less than a full work week or for only part of a day, exempt employees must still be paid their full salary.

There are, of course, numerous other employment law issues employers should keep in mind when preparing for and dealing with a natural disaster, such as obligations under collective bargaining agreements, the Worker Adjustment and Retraining Notification Act, and applicable state law statutes.  If you have any questions or if we can be of any assistance, please contact our office.  Our thoughts are with all of our clients affected by Hurricane Harvey.



Workers at the Nissan auto plant in Canton, Mississippi, rejected a unionization effort by the United Auto Workers (UAW) on August 3-4. About 3,700 of the 6,400 people who work at the Canton plant were eligible to vote. Excluded from the vote were managers, engineers, clerical workers, guards, and numerous contract laborers provided by employment agencies. The Mississippi Manufacturing Association reported that 97% of eligible voters turned out to vote, with 63% voting against the union and 37% voting for the union.

Although the vote went against the UAW, the union is challenging the election, alleging that Nissan’s communications before the election intimidated and threatened employees into believing that the facility might close or that layoffs would occur if the union was voted in. If the union is successful in its challenge, another vote could be held or Nissan could be forced to recognize the UAW through a bargaining order, as though the union had been successful in the election. If the challenge is rejected, the Nissan facility will continue as nonunion.



As you may recall, in May 2016, the U.S. Department of Labor issued a proposed rule that would have increased the salary level required for an employee to qualify for the executive, administrative, and professional exemptions under the Fair Labor Standards Act. The proposed change, which was scheduled to go into effect on December 1, 2016, would have raised the salary level from its previous amount of $455 per week (the equivalent of $23,660 per year) to a new level of $913 per week (the equivalent of $47,476 per year).

However, in November 2016, a Texas federal court granted a nationwide preliminary injunction enjoining the Department of Labor from implementing and enforcing that rule. The Department of Labor appealed that ruling to the United States Fifth Circuit Court of Appeals and oral argument was scheduled for October.

However, while the appeal was pending, the Texas federal court recently granted summary judgment in favor of the Plano Chamber of Commerce and more than 55 other business groups who challenged the proposed rule. In its opinion, the Texas federal court reasoned that the “significant increase” from $455 to $913 would essentially render meaningless the duties/functions/tasks test that Congress intended to be used in analyzing whether an employee is exempt. The Texas federal court thus concluded that the proposed rule was invalid.

In response, the Department of Labor informed the Fifth Circuit Court of Appeals on Tuesday that it no longer wanted to pursue the appeal.  Yesterday, the appeal was officially dismissed.  Although this certainly ends the Obama-era regulations, at the end of July 2017, the U.S. Department of Labor published a Request for Information seeking additional public comment regarding the 2016 proposed rule. The request includes eleven broad questions and suggests that the Department of Labor may be inclined to modify the 2016 proposed rule to adopt a threshold lower than the $913 per workweek that was last proposed. Current speculation is that the Department of Labor will seek to set a salary requirement between $575 to $675 per week ($30,000 to $35,000 annually).  Stay tuned.



The Federal Office of Child Support Enforcement (OCSE), which is responsible for proposing and implementing national policy for the child support program, has recently issued guidance for employers who have a terminated employee subject to child support withholding orders. That guidance explains when and how employers must report the termination of these employees, as well as how to reactivate child support withholding for an employee who ends up being rehired. More information can be found here:




In a recent decision, the U.S. Fifth Circuit Court of Appeals (whose rulings apply to all Louisiana, Mississippi, and Texas employers) upheld certain provisions in T-Mobile’s employee handbooks but ruled that the prohibition against photography and recordings violated the National Labor Relations Act (“NLRA”). T-Mobile USA, Inc. v. Nat’l Labor Relations Bd., 865 F.3d 265 (5th Cir. 2017). The policies in question (1) encouraged employees to “maintain a positive work environment”; (2) prohibited “[a]rguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork”; (3) prohibited all photography and audio or video recording in the workplace; and (4) prohibited employees from sharing non-public T-Mobile information stored in its I.T. system with non-approved individuals.

The National Labor Relations Board had determined that all four provisions violated the NLRA. T-Mobile disagreed and sought review of that opinion. The Fifth Circuit was faced with determining whether the policies violated the NLRA by chilling a reasonable employee in the exercise of his Section 7 rights, which give employees the right to self-organize; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.

The Court concluded that a reasonable employee would not construe policies (1), (2), and (4) to prohibit protected activity, but that a reasonable employee would construe policy (3) to prohibit protected activity. With respect to that third policy, the Court noted that it was “primarily concerned with the broad reach of the recording ban. The ban, by its plain language, encompasses any and all photography or recording on corporate premises at any time without permission from a supervisor.” Employers are encouraged to review their policies to ensure that any prohibitions against photographing or recording are narrowly tailored.



The Fifth Circuit also recently addressed claims brought under the Americans with Disabilities Act (“ADA”). Patton v. Jacobs Eng’g Grp., Inc., 863 F.3d 419 (5th Cir. 2017). The plaintiff, who had a noticeable stutter, claimed that his co-workers harassed him on account of his stutter and that the defendants, who were his co-employers, failed to accommodate him in violation of the ADA. According to the plaintiff, the harassment and excessive noise caused him to experience severe anxiety. The district court granted summary judgment in favor of the employers, finding that they did not know of the plaintiff’s underlying disability and the plaintiff failed to introduce sufficient evidence of a hostile work environment claim.

The appellate court affirmed. In analyzing whether the defendants had knowledge of the plaintiff’s disability, the Court acknowledged that his stutter was obvious and that he had complained about noise on several occasions but concluded that the plaintiff was required to show that the defendants attributed his limitation – sensitivity to noise – to a physical or mental impairment. The Court also ruled that the plaintiff failed to establish that either defendant failed to take prompt, remedial action addressing the alleged harassment. In particular, the court relied upon the fact that the employers’ handbooks directed employees who experienced harassment to contact the human resources department, and yet there was no evidence that the plaintiff complied with those policies.

This case highlights the importance of not only maintaining accurate job descriptions, but also ensuring that employee handbooks are updated. It is generally recommended that employers have a provision in their employee handbooks advising employees that they are to report any incidents of discrimination, retaliation, or harassment, preferably to a HR manager or other high-level employee. Further, employers are strongly encouraged to thoroughly investigate any complaints of discrimination, retaliation, and harassment by, at a minimum, gathering statements from supervisors or other employees who may have witnessed the alleged incident(s) and following company policies in administering any necessary discipline.