San Antonio Employment Law Blog

San Antonio Employment Law Blog

This is a “Joe McCarthy Moment” for Republicans

Posted in Discrimination

David Brooks, the generally conservative commentator, does not support Donald Trump. He says this is a “Joe McCarthy” moment for the Republican Party. See San Antonio Express News commentary piece. He refers to Senator Joe McCarthy, the Senate bully. In his zeal to uproot all vestiges of Communism or Communist sympathizers, he bullied, scared and threatened his way across Washington, D.C. Everyone was afraid of Joe McCarthy, because they feared being branded as “soft” on Communism. Like Donald Trump, Joe McCarthy shot from the hip. For example, he stated flatly, like he knew and only he knew, that there were dozens of Communists in the federal government. He claimed in one speech to have a list in his hands of 205 known Communists in the State Department. Later, in the Senate, he said the number was actually 57. Still later, he claimed it was 81. That alleged list lead to

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Police Union and City Ordered to Mediation

Posted in Litigation and trial practice

The continuing saga of the San Antonio Police Officers Association lawsuit has lead to a court ordered mediation. The lawsuit is currently on appeal with the Fourth Court of Appeals here in San Antonio. The City filed a motion seeking that the parties be ordered to mediation. See San Antonio Express News report. Mediation will not work unless both sides are ready to discuss settlement. So, court-ordered mediation rarely works. It may be that the Fourth Court of Appeals, for whatever reason, believes the union is ready to talk. Up to now, the union has obstinately insisted that the City drop its lawsuit before it consents to talks.

Sometimes, in a hearing, one or both of the parties will say something verbally they would not say in writing indicating they are ready to discuss settlement. Unless that sort of verbal signal occurred, the court ordered mediation will likely lead to nowhere. The

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Sandy Hook Denier Files Suit for Wrongful Termination

Posted in First Amendment

As if to prove that a person can file suit about anything, Professor James Tracy has sued the Florida Atlantic University over his termination. Mr. Tracy is the person who some months ago denied that the Sandy Hook massacre occurred. The parents of one young victim, Noah Pozner, 6 years old, claimed that Mr. Tracy harassed them and challenged them to prove their son existed. The professor was reportedly taunting the parents. He was fired last January.  Mr. Tracy was previously reprimanded in 2013 for writing on his blog that the Sandy Hook massacre was staged and for questioning the validity of other mass shootings. See CBS news report.

He has filed suit alleging First Amendment violations and wrongful termination. It is true that a state agency may not take action against an individual for expressing an opinion in a public way. But, harassing or taunting is not protected free speech.

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On-Call Scheduling not Well Received

Posted in Wage and Hour Issues

On-call scheduling has not been well received. It is a new trend in reducing personal costs. But, it causes workers substantial stress, since they do not know until a few hours before or the night before whether they will be working. This late notice makes arranging child care virtually impossible. Attorneys general from eight states and the District of Columbia are investigating the practice. So far, they have simply sent letters seeking payroll records and policies. But, those letters prompted some large companies to drop the practice. See ABA Bar Journal report.

I would expect on-call scheduling would have greater impact on female workers, since they are more often the workers arranging child care. So, this sort of practice would impose a greater burden on women. The practice would then constitute disparate impact on female workers. I could also see how such scheduling could also aversely impact workers with disabilities. This

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Iraqi Man Booted for Speaking Arabic

Posted in Discrimination

I am not surprised really. A young Iraqi man was booted from a Southwest Airlines flight after he spoke Arabic on his cell phone. He was talking to his uncle and describing an event earlier that week at which the head of the United Nations, Ban Ki-Moon, had appeared. In closing the phone call with his uncle, he had mentioned he would call him later insha’ Allah, a common Arabic phrase meaning “God willing.” He was telling his uncle he would call him later, God willing. He noticed as he hung up that a nearby woman was staring at him. He silently hoped he would not be detained for speaking Arabic. But, he was detained. Police officers arrived within two minutes and told him he had to leave the plane.

Southwest Airlines simply said they were apprised of threatening comments aboard the airline. After being removed, Khairuldeen Makhzoomi, was approached by a

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Texas A&M Settled Sex Discrimination Lawsuit

Posted in Discrimination

In 2013, Prof. Cheryl Kelsey filed a lawsuit against Texas A&M at San Antonio alleging sex discrimination and unequal pay. According to her lawsuit, she was hired as an associate professor by Texas A&M for the 2009-10 academic year. She was promoted to assistant professor for the 2011-12 school year. Yet, she was still paid less than a male associate professor and less than a lower-ranking male assistant professor. See San Antonio Express News report.

Unequal pay lawsuits are the most difficult. The Fifth Circuit has imposed a stiff standard. The standard requires female employees to show their male counter-part is in a nearly identical situation. It is very difficult to show that two co-workers are in “nearly identical” work situations. For example, a female clerk may have the same job title as her male counter-part, yet have very different job duties. In other cases, employers have avoided liability by arguing

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Gov. Abbott Appoints CEO to Represent Working Men and Women

Posted in Unemployment Benefits
Courtesy of clipart

So, now, the fox will guard the henhouse. Gov. Abbott appointed Julian Alvarez to the Labor position on the Texas Workforce Commission board. The three person board is supposed to include one member representing employers, one member representing labor, and one chairman. Gov. Abbott replaced the long-time labor board member, Ronald Congleton, with Mr. Alvarez, a former Chamber of Commerce CEO. … Okay. It never occurred to me the Chamber was such a staunch protector of the rights of labor. Most Chambers of Commerce do not claim to represent the views of the working man and woman. The AFL-CIO objects to the appointment of an employer representative to the labor slot. See Rio Grande Guardian report.

Even with the current board, TWC is generally opposed to claimants for unemployment compensation. I think we can expect that its stance will now grow more antagonistic to folks who get fired. And, that matters.

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Texas AG Sued for Securities Fraud

Posted in General

The Texas Attorney General, Ken Paxton, has been sued by the Securities Exchange Commission for securities fraud. See San Antonio Express News report. That is a big deal simply because this is a civil matter, not criminal. The SEC only has to show by a preponderance of the evidence that General Paxton broke the law. In criminal court, the standard is beyond a reasonable doubt. We can think of that standard requiring 99% probability that the accused person is guilty. Preponderance is more like 50.1%.

The SEC cannot ask for imprisonment, but they will ask for hefty fines. According to the news report, Mr. Paxton was paid 100,000 shares in an energy company. Another person involved in the scenario, Caleb White, plead guilty and had to return $66,000 and 20,000 shares of the same company, Servergy. One lawyer who follows the SEC says the SEC generally files only when it is

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Arbitration Favors the Repeat Player

Posted in Contracts

Arbitration in employment cases is still new. It is also private. So, researchers have not had access to arbitration decisions or awards. But, a statute passed in California requires the arbitrators to make public their decisions. One Cornell researcher obtained those public awards and found some remarkable trends. The largest provider of arbitration services is the American Arbitration Association. AAA is also the only provider that provides protocols designed to protect employees from the worst sort of arbitration abuses. The report includes some 3900  AAA arbitration awards or decisions over a four year time period. I previously wrote about this study here. But, I want to mention some additional details.

Alexander Colvin found a “repeat player” effect. That is, repeat participants, employers with more than one claim filed against them, receive better results. Repeat players would also include repeat law firms. The unique aspect of employment arbitration is that the employee

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Tie Vote Means System of Union Dues Will Remain

Posted in Labor Law

So, the system in which union dues are collected from all employees remains in place. By a tie, 4-4 vote, the U.S. Supreme Court fails to reach a consensus opinion. That means the lower court’s opinions stand. In this case, that means unions win because most lower courts upheld the long-standing custom of deducting union dues even from those persons who are not members. See CBS news report. These fees from non-members may not be used for political activity.

The system of collecting dues from non-members exists in the 23 states and the District of Columbia which allow public sector unions. The theory is that non-members would get a “free ride” if they paid nothing. The non-members would get the benefit of a collective bargaining agreement but pay nothing for it.

I belonged to a union a few years ago. We did sometimes refer to the non-members in a semi-friendly way as

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