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Labor and Employment Alert: Texas Supreme Court Rejects a Cause of Action for Compelled Self-Defamation

June 26, 2017

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A defamation claim generally requires “publication” of a false and defamatory statement of fact to a third party. Publication occurs when the defamatory statement is communicated to a third person who can understand its defamatory import and who actually does so understand. Under the self-defamation theory, a former employee’s disclosure of a defamatory statement to a prospective employer can show “publication” because he or she is effectively compelled to publish the statement when asked why he or she left former employment.

In May 2017, and in a case of first impression, the Texas Supreme Court recently held that compelled self-defamation is not recognized under Texas law as either an element of a defamation claim or as an independent cause of action.

In Exxon Mobil Corp. v. Gilberto Rincones, Rincones was a technician working for an Exxon contractor and was terminated after testing positive for marijuana following a random drug test performed by a third-party administrator approved by Exxon. He claimed that he did not use illegal drugs, that the sample was not actually his, and that there had been “questionable testing procedures.” He then offered another sample that had been tested by a private doctor, which was negative for marijuana (though the screening threshold was substantially higher than the one his employer had used). His employer refused to accept these results and Rincones did not complete a rehabilitation program as required to be reinstated. Rincones sued alleging, among other things, that the defendants had tortiously compelled self-defamation a result of having to report to future employers that he had been terminated for failing a drug test. The Texas Supreme Court rejected the self-defamation claim and “expressly decline[d] to recognize a theory of compelled self-defamation
in Texas.”

First, the Court reiterated that a plaintiff cannot recover for injuries as a result a publication if the plaintiff consented to, authorized, invited or procured that publication. The Court next explained that recognizing compelled self-defamation “would risk discouraging plaintiffs from mitigating damages to their own reputations.” Otherwise, any employee who disagrees with his or her employer’s termination reason could unilaterally create an actionable tort against the employer, and the availability of increased damages might encourage an employee to publish a defamatory statement when that could have been avoided.

The Court also “fear[ed] that accepting the compelled self-defamation doctrine would unacceptably impinge on the at-will employment doctrine” and found that the claim is “incompatible with Texas’s at-will employment system.” This is because a claim of compelled self-defamation would require employers to conduct investigations and make accurate findings before taking any action against an employee or risk being sued – and employers have no duty to conduct such an investigation under Texas law.

Finally, “recognizing compelled self-defamation could also stifle workplace communication by chilling honest evaluation and communication about employee performance, as employers strive to protect themselves from defamation claims by adopting policies of providing only ‘name, rank and serial number’ references.”

Texas now joins with an emerging majority of state courts that have considered the issue and rejected compelled self-defamation, including those in Connecticut, Massachusetts, Hawaii, Tennessee, Iowa, Pennsylvania, and New York. Moreover, Colorado and Minnesota have limited the claim by statute.

Department Of Labor Withdraws Administrator’s Interpretations for Joint Employer and Independent Contractors

June 15, 2017

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On June 7, 2017, Alexander Acosta, U.S. Secretary of Labor, announced an immediate withdrawal of two Wage and Hour Division Administrator’s Interpretations (“AIs”) on join employment and independent contractor status issued by the Obama Administration. In January 2016, AI No. 2016-01 addressed joint employment under the Fair Labor Standards Act (“FLSA”) and Migrant and Seasonal Agricultural Worker Protection Act (“MSPA”), and viewed as an attempt to expand the definition of joint employment. In July 2016, AI No. 2015-1 was issued to address the definition of independent contractors under the FLSA which many opponents viewed as an attempt to narrow those classifications.

The DOL made clear that removing these AIs does not change an employer’s legal responsibility under the FLSA or MSPA, as reflected in the long-standing DOL regulations and case law. However, withdrawing these AIs is likely to signal a policy shift in how the DOL interprets and enforces matters relating to joint employment and independent contractors.

Trustees Approve Changes to Dallas ISD Evaluation Criteria and Relative Weights on Construction Projects

May 30, 2017

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Dallas ISD Construction Services UPDATE
May 26, 2017

On May 25, 2017, the Dallas ISD Board of Trustees approved a change to the district’s Bond/Construction Services project evaluation criteria and relative weights. The change removed the five-point score previously granted to businesses with past experience doing business with Dallas ISD. The five points now apply to the “proposal pricing” category, which gives more weight to businesses’ proposed project pricing when bidding for district construction and renovation projects.

The revised criteria is expected to broaden opportunities for additional construction companies to participate in district building projects. The revised evaluation criteria also places equal weight on bidders’ experience in higher education and K-12 construction or renovation.

Questions or requests for additional information should be directed to Wilton Munnings, M/WBE Manager for Dallas ISD Construction Services.

Cutler-Smith, PC is proud to announce that Spike Cutler and Garrin Fant are now Texas Board Certified attorneys in the area of Construction Law

February 7, 2017

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Board Certification is a mark of excellence and a distinguishing accomplishment – one that roughly 10% of Texas attorneys claim. Today, Cutler-Smith, PC is proud to announce that Spike Cutler and Garrin Fant are now Texas Board Certified attorneys in the area of Construction Law. Congratulations Spike and Garrin!

Texas Board of Legal Specialization

February 1, 2017

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We are proud to announce that Sewall C. (Spike) Cutler, Jr. and Garrin B. Fant have completed all necessary requirements and are now recognized as Board Certified in Construction Law by the Texas Board of Legal Specialization. In 2016, the Texas Supreme Court approved construction law as the newest specialty area. To be eligible for certification, an attorney must have five years of experience practicing law, with a minimum of three years experience in the specialty area. It requires an ongoing involvement in the specialty area which is periodically substantiated with references from peers in that field. It also requires annual professional refreshment through TBLS approved, continuing legal education course work to stay abreast of current trends in law.

The Texas Board of Legal Specialization is one of the largest board certification programs in the nation. Board Certification is a mark of excellence and a distinguishing accomplishment. Within the Texas legal community, Board Certification means an attorney has substantial, relevant experience in a select field of law as well as demonstrated, and tested, special competence in that area of law. The attorney certification process is governed by the Texas Plan for Recognition and Regulation of Specialization in the Law. Upon meeting all qualifications and passing the examination, an attorney is considered Board Certified and is conferred a Certificate of Special Competence in a specialty area of law.

New I-9 Form for Employment Eligibility Verification

January 31, 2017

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U.S. Citizenship and Immigration Services (USCIS) announced that effective January 20, 2017, all employers must use the new Form I-9, Employment Eligibility Verification for new hires. Although much of the information is the same but formatted differently, a few changes should be noted:

The new form:

  • Is easier to complete electronically;
  • Replaces “other names used” in Section 1 with “other last names used” to better verify some foreign nationals.
  • Includes the ability to enter multiple preparers and translators.
  • Includes a dedicated area for including additional information.
  • Provides a supplemental page for prepare/translator; and
  • Carries over a box for the citizenship/immigration status into Section 2.

Employers have the option of making changes or updates to an employee’s old form or using the new form. The new form will be in effect until August, 2019.

Click Here to view the new form