San Antonio Employment Law Blog

San Antonio Employment Law Blog

AG Paxton Seeks to Cancel Hearing in U.S. District Court

Posted in Litigation and trial practice

Now, Attorney General Paxton wants to cancel the hearing in front of Judge Garcia in U.S. District Court. Judge Garcia ordered Ken Paxton and Kirk Cole, the interim head of the Texas Department of Health, to explain why they chose to violate the U.S. Supreme Court decision regarding gay marriage. Judge Garcia has essentially asked the two agency heads to explain why they should not be found in contempt. I previously wrote about AG Paxton’s problems here and here. He chose to give unlawful legal advice. He did see the error of his ways later, however, and changed policies. As I mentioned before, political posturing will only carry you so far…..

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Fourth Court Finds UIW Police is not a Governmental Unit

Posted in Litigation and trial practice

Well, it is hardly a surprise. The Fourth Court of Appeals has affirmed the district court and found that the University of the Incarnate Word Police Department is not an “arm of the state.” It is not a government. I previously wrote about this frivolous appeal  here. See San Antonio Express News report.

UIW says they will appeal to the state Supreme Court. Who knows what the Texas Supreme Curt will do. They will go to great lengths to assist defendants in personal injury lawsuits.

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800 Years of the Magna Carta

Posted in Uncategorized

I am a lawyer. I did attend law school, and in undergraduate school, I studied history. Yet, When folks say the Magna Carta inspired our Declaration of Independence, I understand that only vaguely. Well, fortunately Prof. Johnson at St. Mary’s Law School has penned a nice piece about what exactly about the Magna Carta was so new. One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it. So, in this, the 800th anniversary of this signal achievement, let’s review the Magna Carta, or Great Charter.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but

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Fifth Circuit Reverses Western District for Making Credibility Determinations

Posted in Uncategorized
Hallway

In Burton v. Freescale Semiconductor Inc. and Manpower of Texas, LP, No. 14-50944 (5th Cir. 8/10/2015), the Fifth Circuit overruled the district court’s summary judgment. The court addressed a frequent issue, who is responsible for the termination of temporary employees? But, in so doing, the higher court also addressed a more frequent issue, how to apply the summary judgment standard.

Nicole Burton was placed at Freescale by Manpower, a temporary employment agency. Freescale relies on temps. It increases hiring in good times and scales back in the slow times. Ms. Burton received good performance evaluations in 2009 and 2010. In 2011, she broke a wafer. She was counseled for that error. In March, she inhaled chemical fumes at work. She sought  medical treatment. Her health problems continued and she filed a worker’s compensation claim in June. About two weeks after the filing, Freescale decided to fire her. Supposedly, an incident in late

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Agriculture Department Wants to Nuke All Moslems

Posted in Discrimination

Sid Miller, Texas’ new head of the Department of Agriculture, is kind of amusing. At the beginning of his term, he announced with apparent relish that cupcakes were now allowed back onto school menus. He made his announcement while biting into a very tasty looking chocolate cupcake. A few months later, he announced the fryer was allowed back into school cafeterias. I did not even know fried food had been banned. His department changes the rules, to allow fryers back. Imagine the relief I felt….

Now, he has posted on Facebook a cartoon suggesting that we should “nuke” the Moslem world. See CBS news report. Not that nuking anyone has anything to do with the Agriculture department. But, really, the whole Moslem world? What about those tens of thousands of Moslems who helped us in the wars in Iraq and Afghanistan? As I have mentioned here before, we could not have

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NLRB Does not Allow College Football Players to Organize Unions

Posted in Labor Law

Well, the National Labor Relations Board (NLRB) has reversed the regional director in Chicago who had ruled that Northwestern University football players could form a union. The ruling from the national level found, instead that allowing union organizing could lead to imbalances in competitive football. See CBS news report. The ruling did not address the Chicago regional director’s finding that the players were employees for purposes of the National Labor Relations Act.

I previously wrote about this issue here and here. The unanimous five-member board in Washington, D.C. found that allowing the players to organize could lead to different standards at different schools. The national ruling cited federal caselaw that promotes stability and uniformity between management and workers.

Sure, but sooner or later, the schools will have to recognize these players are more employees than students. The movement is toward greater and greater renumeration for the players, not less.

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Private University Claims to be an Arm of State Government

Posted in Litigation and trial practice

Frivolous lawsuits and frivolous defenses have always been around. We see one such frivolous defense in the appeal filed by University of the Incarnate Word. UIW is being sued by the family of Cameron Redus. Mr. Redus was shot by a UIW police officer in 2013 after a traffic stop. The family sued UIW. Now, UIW is making a silly claim. The university is claiming the UIW police department is a state entity, so as to be protected by “qualified immunity.” Qualified immunity means the state, which is normally immune from suit, has not passed a statute removing that immunity. If the UIW police department is immune from suit, then the lawsuit will be dismissed.

But, wait, isn’t UIW a private school? Yes, it is. It would be a huge stretch to turn the UIW police department into an arm of the state government. This is a frivolous appeal in the sense

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AG Paxton Agrees to New Policies

Posted in Litigation and trial practice

So, now AG Paxton and Mr. Cole, head of the Department of Health Services, have agreed to implement policies which will ensure no other gay or lesbian citizens will be denied requests to amend death certificates. The state officers say they will implement these new policies within just a couple of days. In turn, Judge Garcia agreed to postpone the hearing until Sept. 10. Ken Paxton will not have to appear and explain his legal advice. The state officials must now confer with the lawyers for John Allen Stone-Hoskins regarding those policies. Mr. Stone-Hoskins is the plaintiff in the lawsuit.

Mr. Paxton had asked to be excused from the hearing, saying a lower ranking official would be more familiar with the issues. See San Antonio Express News report. That is not good leadership. Asking subordinates to fall on their sword for the big boss does not set a good example.

I think

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AG Reconsiders Amending Death Certificate

Posted in Litigation and trial practice

Well, Ken Paxton and Kirk Cole, the head of the Department of Health, reconsidered. They allowed the spouse of a gay man to amend the death certificate to list him as the spouse. It took about a day for Mr. Paxton and Mr. Cole to reconsider and do as they were were compelled to do under the new law. See San Antonio Express News report.

AG Paxton and Mr. Cole are still ordered to appear at a hearing in front of Judge Garcia. But, now that they have issued the requested death certificate, one can expect the hearing to proceed relatively smoothly.

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AG Paxton Ordered to Appear in U.S. District Court

Posted in Litigation and trial practice

It is not surprising that Ken Paxton is being called to appear in U.S. District Court. He gave poor legal advice to Texas’ 254 County Clerks when he suggested they could possibly ignore the Supreme Court ruling regarding gay marriage. I wrote about that inaccurate legal advice here. There is nothing wrong with sincerely held political views. But, when you are serving as the state’s Attorney General and you claim to offer legal advice to local governments, you have to remove the political hat and wear the legal hat. Judge Orlando Garcia, of San Antonio, ordered Ken Paxton and Kirk Cole, the head of the Texas Department of Health, to appear in court and explain why they will not issue a death certificate to reflect a gay marriage.

A spokesman for the Attorney General’s office said the AG will file a response to the motion. But, he will have to do

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