San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 Many non-lawyers expect lawyers to follow the law.  Not always.  In one recent lawsuit, for example, a major law form was sued by the EEOC for age discrimination.  The employee claims in this lawsuit that his law firm, Kelley Drye, provides in its partnership agreement that if a partner wishes to continue working past age 70, he must give up any equity (ie, partnership) interest in the firm.  The employee also claims his pay was reduced by $25,000 in 2009 after he filed his charge with the EEOC.  If true, this would be a strong lawsuit.  Age distinctions in a partnership agreement are relatively easy to prove.  Taking reprisal after filing a charge is also relatively easy to prove.  Kelley Drye is a one of the largest law firms in the country.  One would expect them to follow the law better than others. 

In a separate lawsuit, a black lawyer at another national law firm, Howrey, a global law firm, encountered racism in the Bruissels office.  Howrey had recruited Ms. Menns from another firm.  They sent her to the Brussels office.  At the Brussels office, she was removed from favorable assignments and even moved to a different floor of the building.  When she complained, she was told by management that she was so impressive that the white employees felt uncomfortable around her.  The Manager also told her that because she was the first black lawyer, the staff was not used to being forced to be in a "subordinate position" to a black person.  

She then contacted firm leaders in washington, D.C.  The diversity committee and the firm CEO met with her in June, 2009.  The young associate, Ms. Menns was fired that day.   Ooops.  Can anyone say retaliation?  A bad day for a for a firm that ranked No. 13 out of the top 200 grossing firms for commitment to diversity.  

Ms. Menns seeks $30 million in damages. 

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 You gotta love these stories, sometimes.  An employee goes back to her home country, the Phillipines with her husband for seven weeks.  They visit family, friends.  The husband is disabled.  They visit a miraculous Catholic church, known for its healing abilities.  The wife pushes her husband's wheel chair, comforts him, provides psychological counseling, helps with the luggage.  Visiting family and friends consume perhaps 40% of their time.  She is gone seven weeks and claims FMLA leave when she returns to the US.  The employer denies her claim.  She sues.  Who wins?  The employer.  Because, she was seeking a miracle, not medical treatment, said the court.  According to Mike Maslanka.  Too, the court added, a priest is not a medical care provider under the FMLA. 

In an opinion out of the Massachusetts district court, the judge said even if this trip constituted medical treatment, the FMLA does not cover a vacation trip with a sick spouse, even if treatment is an incidental part of that trip.  Tayag v. Lahey Clinic Hospital.  It is not clear to what extent, if any, caring for a sick spouse on a medically necessary trip would be covered under the FMLA.  Courts have found that providing indirect psychological support for an ill family member does qualify as caring under the FMLA.  But, in reading the opinion, it appears that the court was too troubled by the vacation aspect and the absence of actual medical treatment. 

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 English only rules always bring controversy, even at a bookstore in New Haven, Connecticut, very near Yale university.  The EEOC generally frowns on such rules, but allows them for "business necessity."   In this case, the book store is essentially claiming the customers are uncomfortable with employees speaking Spanish.  Does the comfort of customers count as a business necessity?  Maybe, according to Workplace Prof.  It depends on whether there is evidence of discriminatory motivations.  That means an employer seeking to implement such a policy needs to show something more than mere perception of what makes a customer happy.  

It would also help to show some safety issue.  ....  Safety at a bookstore?  Those paper cuts can be viscious.....

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 The 11th Circuit Court of Appeals rendered a good decision on a sex harassment case.  Reeves v. CH Robinson Worldwide.    The latest version is an en banc decision overruling the result by an earlier 11th Circuit three judge panel.   An en banc decision means all the judges of the Court participated in this decision, not just the original three judges who rendered the first decision.  

The decision addresses the issue regarding the use of certain derogatory terms for women.  Is the use of the term "bitch" inherently discriminatory toward women?  The Court found that use of that term could indicate prejudice toward women depending on the context in which it was used.  Note that not all circuits agree with this finding.   The 7th Circuit, for example, has found that use of the term "bitch" is not necessarily targeted toward gender.   But, the Reeves court found that use of the terms "bitch" or "slut" would inherently be more demeaning toward women.  I think most people would agree, lawyers or non-lawyers.

The Reeves court further found that in this case, even if the men do sometimes use terms such as "bitch" and "whore" toward men, using such terms toward men does not make them less offensive toward women.  "It is undeniable that the terms "bitch" and "whore" have gender specific meanings.  Calling a man "bitch" belittles him specifically because it belittles women," said the Court.  Duh.  Its only amazing that such an issue must be appealed this far up before a judge can apply some common sense.  Yes, indeed, the background and life experiences of a judge do make a critical difference in many cases. 

The 11th Circuit also found that slurs directed at women in general could serve as evidence of prejudice toward a specific woman, thus joining the 2d, 4th, and 7th Circuits.  So, the en banc decision overturns the prior three judge panel decision in this same case.  It is, for once a good decision in favor of the employee. 

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 The good news is San Antonio is doing better than the rest of the country.  Unfortunately, much of Texas is still hurting from the recession.  See Texas Workforce Commission's recent report.  Unemployment in San Antonio decreased in December from 7.0% to 6.8.  But, unemployment in Texas went up from 8% to 8.3.  Nationally, the unemployment rate was 10.0% in December.  So, Texas is doing better than the country and San Antonio is still doing better than the rest of Texas. 

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 Defamation refers to uttering an untruthful statement about someone.   "Libel" refers to written defamation.   "Slander" refers to oral defamation.   In the employment context, defamation has an extra hurdle.   In Texas, to charge an employer with defamation, the defamation must be made in the course and scope of his/her employment.   That is, the defamatory statement must be related to the speaker's job.   So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege.   For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply.

An employee can overcome the qualified privilege only be showing the publisher of the statement acted with actual malice.   Showing malice is a high burden.  It can be very difficult to show malice, that a person knowingly and deliberately caused harm.  Malice is more than mistake or misunderstanding.  To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort.  Many employees have come to me seeking redress for defamation.  Rarely have I seen sufficient evidence to make a case of malice.  

For example, an employer fires a person for alleged stealing.  the employee did not steal.  But, how do we show malice?  That is, how do we show the employer knew or should have known the theft allegations were not true?  Most times, we cannot.  

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous.  It cannot be capable of two different meanings, one of which might be non-defamatory.  Truth is always an absolute defense to defamation.

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 Only infrequently do we get a glimpse into the inner workings of a court.  We have been looking at the inner workings of the Court of Criminal Appeals, the highest court in Texas for criminal cases, and the inner thinking of Judge Sharon Keller.  Now, we have the report of a relatively impartial observer, Judge David Berchelmann, of San Antonio.  Judge Berchelmann is a sober, careful judge. 

He finds that while Judge Keller's actions do not bring credit upon the judiciary, he believes that her actions did not rise to the level required to call for serious sanction.  He finds her decision to not keep the clerk's office open to accept a late motion "highly questionable."  From one judge to another, it rarely gets more direct than that.  In judge-speak, that is pretty critical of her actions. Judge Berchelmann thinks her decision was very poor.  I am not a criminal expert.  But, I am amazed that she would deliberately, knowingly, prevent an appeal in a death penalty case.  The stakes could not be higher.  Contrary to what many non-lawyers may think, few judges want to base any decision on a "technicality."  Most judges go to great lengths to avoid decisions based on administrative or clerical concerns.  One would hope most judges would be focused on justice, not on closing time.  Only more so when a man's life hangs in the balance.  Her actions bring great discredit upon her and her office.  

The scary thing is if this is what the Court of Criminal Appeals does in a high profile matter like a death penalty case, what are they doing in the less visible cases?  

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 Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is  “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission. 

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.  

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person).  In the workplace, there are varying levels of expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy.  But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring.  Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites.  96% block access to adult sites, 61% to game sites and 50% to social networking sites.  46% track key strokes, content and time spent at the keyboard.  12% monitor the blogosphere to see what is being written about the employer.  43% monitor employee email.  So, yes electronic monitoring is a continuing practice. 

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 Facebook account belonging to a tax lawyer is hijacked and used for scam.  Tax Girl's account was hacked and messages were sent out saying she had been robbed in London and needed money.  Tax Girl (aka Kelly Erb) has a wonderful blog on tax law.  Now, her FB account is suspended until the damage can be repaired.  Be careful out there in cyber space.....

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