Compliance Memos: January 2019

DMEC Staff@Work

Compliance Memos_January 2019“Failure-to-Accommodate” Claims Hit Significant Barrier

In Exby-Stolley v. Bd. of County Commissioners, the plaintiff resigned due to her belief that the employer intended to terminate her, since it rejected the accommodation she requested. However, the employer was planning to explore other accommodations, and was not found to have taken any adverse employment actions. These conflicting narratives suggest that the interactive process was defeated by communication problems. The 10th Circuit U.S. Appeals Court upheld dismissal of the plaintiff’s case, because it failed to show that an adverse employment action was taken. The 10th Circuit listed similar precedents from the 1st, 2nd, 7th, 8th, and 9th Circuits. Attorney Jonathan Roth cautions that “most courts, including the 10th Circuit, liberally construe the phrase ‘adverse employment action,’ and whether conduct rises to the level of an adverse employment action is often a fact-intensive inquiry.” To learn more, visit http://dmec.org/2018/11/20/tenth-circuit-rules-no-adverse-employment-action-and-no-failure-to-accommodate-claim/.

Austin Sick Time Ordinance Preempted; Is San Antonio Next?

On Nov. 23, the Texas Court of Appeals, Third District, ruled that the Austin Earned Sick Time Ordinance was preempted by the Texas Minimum Wage Act; the court found that the Austin ordinance effectively increased wage requirements on employers. San Antonio is the only other Texas city to enact a paid sick leave ordinance, which is scheduled to take effect on Aug. 1, 2019. As of this writing, San Antonio has not responded to the ruling. To learn more, visit http://dmec.org/2018/11/26/austin-sick-time-ordinance-preempted/.

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