Despite the fact that the employer posted an arbitration agreement with a 30 day opt out clause the Court held “that is a gamble every employer takes any time it foregoes an employee signature and instead hangs its hat on a fact finder’s determination of whether it met Halliburton ‘s notice requirements.” The Court further stated even though the employer provided an affidavit purporting that the employee logged into the portal that “between Kmart’s ex parte affidavit and Ramirez’s live testimony, the trial judge was free to believe whichever he thought was more persuasive.” Id. at 6.

Kmart Stores of Texas, L.L.C., and Sears Holding Management Corp. v. Norma Ramirez, 2016 WL 1055870 No. 08-15-00094-CV (El Paso Ct. App. March 16, 2016).

Even if the attorney-client or work-product privileges were to apply, Herzing waived the privileges by asserting the Faragher-Ellerth defense. When a Title VII defendant affirmatively invokes a Faragher-Ellerth defense that is premised at least in part on an internal investigation, the defendant waives the attorney-client privilege and work- product doctrine for all documents created as part of that investigation.  Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 at *5 (E.D. La. March 9, 2016).

Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 (E.D. La. March 9, 2016) (Morgan, J.)

It is clear that, pursuant to Herzing’s policy, the investigation would have been conducted regardless of whether litigation ensued. As a result, the investigation was conducted in the ordinary course of business.  Accordingly, the work-product privilege does not apply to Baiocchi’s notes. Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 at *4 (E.D. La. March 9, 2016).

Ambrose-Frazier v. Herzing Inc, No. 15-1324, 2016 WL 890406 (E.D. La. March 9, 2016) (Morgan, J.)

Defendant has presented no evidence that it would have immediately terminated Plaintiff once she expended all her FMLA leave. In fact, Plaintiff declared that she was injured in an automobile accident in 2010, that she missed approximately twenty-one weeks of work, and that Defendant granted her nine weeks of non-FMLA leave after she exhausted her FMLA leave. Accordingly, the Court finds that there exists a genuine dispute of material fact as to whether Defendant would have terminated Plaintiff once she expended her FMLA leave. Helton v. Wesley Health System, LLC, NO. 2:15-cv-20-KS-MTP, 2016 WL 913271 at *3 (S.D. Miss. March 9, 2016)

Helton v. Wesley Health System, LLC, NO. 2:15-cv-20-KS-MTP, 2016 WL 913271 (S.D. Miss. March 9, 2016) (Starrett, J.)

In the Court’s opinion, the evidence cited above is sufficient to create a genuine dispute of material fact as to whether Plaintiff actually violated the advance notice policy, which only requires that an employee provide notice to her supervisor. The record contains evidence that Plaintiff’s immediate supervisors and the director of her department knew that Plaintiff intended to take time off to address serious medical issues, and that Plaintiff’s immediate supervisor knew that Plaintiff had begun the process to request FMLA leave. Helton v. Wesley Health System, LLC, NO. 2:15-cv-20-KS-MTP, 2016 WL 913271 at *3 (S.D. Miss. March 9, 2016)

Helton v. Wesley Health System, LLC, NO. 2:15-cv-20-KS-MTP, 2016 WL 913271 (S.D. Miss. March 9, 2016) (Starrett, J.)

“There is no dispute here that Watch House’s Arbitration Plan satisfies the second prong of Lizalde by applying equally to claims made by both Watch House and Nelson. Rather, Nelson focuses our attention on the following language in the Plan:

This agreement may not be altered except by consent of the Company and shall be immediately effective upon notice to Applicant/Employee of its terms, regardless of whether it is signed by either Agreeing Party. Any change to this Agreement will only be effective upon notice to Applicant/Employee and shall only apply prospectively.

Nelson argues that this language renders the Plan illusory because, inter alia, it fails to include a Halliburton-type savings clause that requires advance notice of termination. We agree . . . . Here, the Plan provides that Watch House may make unilateral changes to the Plan, purportedly including termination, and that such a change ‘shall be immediately effective upon notice to’ employees. Watch House’s retention of this unilateral power to terminate the Plan without advance notice renders the Plan illusory under a plain reading of Lizalde, which is supported by recent decisions from Texas intermediate courts.” 2016 WL 825385, at *5 (citing Lizalde v. Vista Quality Markets, 746 F.3d 222, 224, 226 (5th Cir. 2014); In re Halliburton Corp., 80 S.W.3d 566, 569–70 (Tex. 2002)).

Nelson v. Watch House Int’l, L.L.C., No. 15-10531, 2016 WL 825385 (5th Cir. Mar. 2, 2016) (Stewart, C.J.) (Stewart, Owen, and Costa).

“Solano alleged that from September 30, 2010, to May 20, 2012, Ali Baba improperly paid him a biweekly “salary” that failed to comply with the FLSA’s overtime requirements. It is true that the DOL letter and report, upon which Solano relies, indicate that Ali Baba claimed that it did not know that its practices violated the FLSA. It is also true that Ali Baba continued to deny that its payment practices were unlawful and altered its method of paying employees on May 21, 2012, in response to the DOL’s investigation. These facts tend to show that the defendants did not act willfully with regard to the second set of violations. Nevertheless, there is also evidence that (1) Ali Baba did not maintain any hourly records before May 21, 2012; (2) Solano worked 66 hours a week during that period; and (3) Solano did not clock in or out during that period . . . . In this case, Solano has presented some evidence of the hours he worked, in particular his own statements and the DOL investigationIn estimating the hours worked by Ali Baba employees, including Solano, the DOL relied on “the signed current employee’s interview statements, hours of operations and information collected during the initial conference from the employer.” A reasonable jury could conclude that Solano worked at least 66 hours a week. Because a reasonable jury could conclude that the first and second set of violations were willful, the court cannot apply the two-year statute of limitations on this motion. Therefore, Alia Baba’s motion for partial summary judgment on the basis of the two-year statute of limitations is denied.” 2016 WL 808815, at *6–7 (internal citations omitted).

Solano v. Ali Baba Mediterranean Grill, Inc., No. 3:15-CV-0555-G, 2016 WL 808815 (N.D. Tex. Mar. 2, 2016) (Fish, J.).

“The DOL letter, accompanied by the DOL report, bears the seal of the DOL and the signature of a DOL officer and is, therefore, self-authenticating. DOL investigative reports, although hearsay, are generally admissible hearsay, because they are public records under Federal Rule of Evidence 803(8). Public records are presumed admissible, unless the party opposing their admission demonstrates that the records are untrustworthy. Ali Baba presented no evidence and made no argument that the DOL letter or report is untrustworthy. Moreover, to the extent that Solano submits the report only to show the effect that it would have had on Ali Baba, it is not hearsay, because it was not offered for ‘the truth of the matter asserted. . . .’ The DOL letter and report are also relevant to the question of whether there was an FLSA violation prior to May 21, 2012, and whether that violation was willful.”  2016 WL 808815, at *4 (internal citations omitted).

Solano v. Ali Baba Mediterranean Grill, Inc., No. 3:15-CV-0555-G, 2016 WL 808815 (N.D. Tex. Mar. 2, 2016) (Fish, J.).