Employee Rights

When an employee successfully asserts an FLSA claim against an employer, courts may properly consider attorney’s fees in determining the amount in controversy.

By Nicole M. Conger on May 18, 2014

“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.”

Adkins v. United Airlines, Inc., 2014 WL 803460 at *2 (N.D. Tex. February 28, 2014) (Lynn, J.).

To defeat a motion to dismiss, an employee is not required to plead evidence of willfulness; rather an employee may simply state that the FLSA violation was willful.

By Carmen Artaza on May 17, 2014

Posted in FLSA violations

“As for the allegation that Defendants willfully violated the FLSA, that matter contains questions of fact, and at this pleading stage prior to discovery the motion to dismiss it is premature.”

Craven v. Excel Staffing Service, Inc., H-12-2860, 2014 WL 345682 at *6-7 (S.D. Tex. January 30, 2014) (Harmon, J.) (internal citations omitted).

An employee may defeat a Twombly motion to dismiss by pleading that he is a nonexempt employee that worked in excess of forty hours per week and was not paid one and a half times his regular rate of pay for overtime hours worked.

By Carmen Artaza on May 3, 2014

Posted in FLSA violations, Overtime claims

“Plaintiffs’ allegations that they were nonexempt, regularly worked more than forty hours per week, and were not paid time-and-a-half to be factual allegations and not legal conclusions.”

Rodriguez v. Gold & Silver Buyers, Inc., Civ. A. No. 4:12–CV–1831, 2013 WL 5372529 at *3 (S.D.Tex. Sept.24, 2013) (Harmon, J.).

Being removed from projects, relieved of managerial responsibility, and transferred to another department constitute adverse employment actions in a retaliation case.

By JMANCHESTER on April 30, 2014

Posted in Retaliation

“Plaintiff has presented evidence that raises a genuine issue of material fact in support of her claim…. Plaintiff has presented evidence that after execution of the Settlement Agreement, all managerial responsibilities included in her job description were removed.”

Nguyen v. Metropolitan Transit Authority of Harris County, 2013 WL 4506001 at *3 (S.D. Tex. August…

Protected activity is taken against an entity, not a person, and therefore others in the corporation may retaliate if they have knowledge of the activity.

By JMANCHESTER on April 23, 2014

Posted in Retaliation

“The 2008 EEOC Charge was against [Defendant], not [alleged harasser]. It was [Defendant], not [alleged harasser], who entered into the settlement agreement to increase Plaintiff’s annual gross compensation, to pay her a lump sum, to raise her grade classification, and to pay her attorney’s fees. Plaintiff has presented credible evidence that [Defendant]’s executives and managers…

There is a genuine issue of material fact as to whether sniffing and hovering over a woman, by two men, in a small, confined space creates a hostile work environment.

By CRANSOM on April 21, 2014

Posted in Hostile Work Environment

“Relevant factors are ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”

Royal v. CCC & R Tres Arboles, 736 F.3d 396, 402 (5th Cir. November 21, 2013) (Jolly, J.).

A plaintiff may demonstrate that there is a reasonable basis for crediting the assertion that the aggrieved individuals are similarly situated for the purpose of conditional certification where one former employee files a Notice of Consent to opt in after the plaintiff files his motion for certification.

By Carmen Artaza on April 19, 2014

Posted in FLSA violations, Overtime claims

“The Court finds that [the employee] meets his burden to establish that he is similarly situated to other employees in the proposed class. In his declaration, [the employee] states that he was required to work approximately seventy-three hours per week and was paid a flat rate of $145 per day. He did not receive overtime…

General claims of working over forty hours per workweek with no overtime pay are sufficient to defeat motion to dismiss FLSA action because Plaintiff is not required to state facts showing he is non-exempt.

By Nicole M. Conger on April 18, 2014

Posted in FLSA violations

“The Plaintiff’s assertions that he worked over forty hours in a work week and was not paid overtime or minimum wage are not legal conclusions, but rather factual allegations that if proven give rise to a plausible claim for relief.”

Holland v. Wright, No. 1:13-cv-16, 2013 WL 5290658 at *3 (E.D. Tex. September 19,…

Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

By Colin W. Walsh on April 15, 2014

Posted in FLSA violations

RULE: Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

“Accordingly, the vehicles used in the performance of transporting non-emergency patients to appointments in the course of Defendants’ business are “materials,” i.e., those vehicles are necessary for transporting those patients…

Partial ownership combined with express dealings with payroll create fact issue as to whether person is an employer under FLSA.

By Colin W. Walsh on April 14, 2014

Posted in FLSA violations

RULE: Partial ownership combined with express dealings with payroll create fact issue as to whether person is an employer under FLSA.

“However, considering her part ownership of the business, as well as her express dealings with the payroll, the Court finds that the evidence creates a genuine dispute of material fact as to whether she…

Texas Employment Lawyer

Employee Rights

When an employee successfully asserts an FLSA claim against an employer, courts may properly consider attorney’s fees in determining the amount in controversy.

To defeat a motion to dismiss, an employee is not required to plead evidence of willfulness; rather an employee may simply state that the FLSA violation was willful.

An employee may defeat a Twombly motion to dismiss by pleading that he is a nonexempt employee that worked in excess of forty hours per week and was not paid one and a half times his regular rate of pay for overtime hours worked.

Being removed from projects, relieved of managerial responsibility, and transferred to another department constitute adverse employment actions in a retaliation case.

Protected activity is taken against an entity, not a person, and therefore others in the corporation may retaliate if they have knowledge of the activity.

There is a genuine issue of material fact as to whether sniffing and hovering over a woman, by two men, in a small, confined space creates a hostile work environment.

General claims of working over forty hours per workweek with no overtime pay are sufficient to defeat motion to dismiss FLSA action because Plaintiff is not required to state facts showing he is non-exempt.

Trucks manufactured out-of-state that are used to transport patients purely within the state are “materials” under FLSA, which bestows FLSA coverage on the employer.

Partial ownership combined with express dealings with payroll create fact issue as to whether person is an employer under FLSA.

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