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

 Judge Sam Kent was denied his request to be certified as having a disability which affected his ability to perform his duties.  The 5th Circuit Court of Appeals denied his request.  Judge Kent was and still is a United States District Judge.  He heard many discrimination cases in his 15 years plus on the federal bench in Galveston.  He denied relief to a great many plaintiffs in discrimination cases, including sex harassment cases.

It turns out he was harassing his own female employees.  He was indicted last year for harassment and obstruction of justice.  He will now very likely be impeached.  If the 5th Circuit had found him to be disabled, then he would have continued to receive his federal judge's pension. 

Its one thing to harass and then deny other female victims the right to sue for harassment.  But, to then claim disability when he has denied disability protections to so many other persons with disabilities.  He claims diabetes and alcoholism.  Alcoholism seems the stronger argument.  But, under the Americans with Disabilities Act (prior to being amended in 2009), alcoholism did not qualify as a disability unless the victim was undergoing treatment.  

Its easy to look at his claim for disability with skepticism.  I hope it was sincere.  If it was, he probably better understands the position of many of my clients when they have been turned down for protection they deserved. 

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 Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages.  A statute is a law passed by the state legislature.  TWC provides a nice summary of the Texas Payday Statute.  But, their summary does not answer one frequently asked question, when must an employer pay the last paycheck?  I am asked this often, since many employers withhold the last paycheck until Joe Employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever.  

The employer has no choice.  The employer must pay the last paycheck within 6 days of the last day of employment.  See Tex.L.C. Art. 61.014.  But, what happens to an employer if they do not meet the six day deadline?  Not much.  The employer can incur a criminal penalty, but who will enforce that law and seek a criminal penalty?  In reality, no one does.   Most District Attorney's are far too busy to prosecute a crime they see as relatively minor. 

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 A post the day after Memorial Day about an excellent soldier lost in the killing districts of Baghdad:  

http://www.arlingtoncemetery.net/cnsaenz.htm

The ripple effects of losing an excellent soldier like 1SGT Saenz spread far and wide.  One soldier with a heart of gold enlisted in the active army in response.  Other soldiers simply look back at 1SGT Saenz as an example.  They try to live up to his example everyday.  A few of us simply write about him and wish there were no losses in war.  

If you haven't already, thank a veteran for his/her service.  

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 Many callers want to know about miscellaneous deductions from a paycheck.  Auto repair shops deduct for lost tools, long haul truck companies deduct for uniforms, everyone deducts for something.  Often, these employers deduct the wrong things in the wrong way.  Under the Texas Payday Statute, an employer can only deduct only what the law allows (such as income tax deductions) and what the employee agrees in writing.  

Of course, the penalty is weak: $1,000 fine or the amount of the deduction, whichever is less.  But, still, the law is clear.  Report any violations to the Texas Workforce Commission.  TWC may not do much.  But, even if all they do is send a letter finding the employer at fault, that can be helpful. 

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 Arbitration has been around forever for labor disputes.  Unions and their employers have long relied on arbitration as a relatively inexpensive way to resolve disputes.  In the labor context, the arbitration process is set up through a collective bargaining agreement.  The arbitrator is picked by both sides from a list of some 10 ore more names.  The unions and employers know more or less who the arbitrators are and how they will approach various issues.  The unions and the employer share the fees for the arbitration.  Arbitrators receive anywhere from $150 to $500 per day.  Fees for renting a room, travel, etc. can add up to another $500 per day.  Since the fees are shared, the incentive is for arbitrators to not favor either side.  This approach has some fairness to it.  The entire process is negotiated.  

By going to arbitration, unions give up jury trials, but instead, they get a quicker system to resolve workplace issues.  

But, in the past 10 years or so have these arbitration style processes have invaded the non-union context.  Employers have seen them as relatively inexpensive and just as fair.  But, that is simply not true.  Unlike labor unions, your average employee involved in non-union arbitrations will participate in an arbitration only once in his/her life.  The employee knows nothing about any of the possible arbitrators on the list.  The employee cannot afford $500 per day for an arbitrator.  The courts have imposed some limitations, but still, the employee is expected to pay some fees in most non-union arbitrations.  

Its a tough deal for employees.  So, why have arbitrations?  Well, mostly because the employer want them, or think they want them.  There have been one or two instances of arbitrators awarding sizeable awards to employees.  But, most employees cannot even afford to get into the door of an arbitration.

But,  at least one defense lawyer finds arbitrations to be not worth the trouble for employers.  In his informal survey, he finds many defense lawyers who agree with him.  The process has grown, in part due to many lawyers and employees pushing to get some of the same protections they would have in court.  

But, across a range of consumer disputes, arbitrations appear to be here to stay.  

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 I recently talked about clients who "forget" key evidence because they are nervous or simply frightened about their situation.  On the other hand, there are, on very rare occasions, those folks at the opposite extreme.  The potential clients who know or should know they do not have a strong case.  They just want to manipulate the system.   In some 15 years of actively doing employment cases, I have had maybe 2-3 clients who fit this category.  But, even they, I think, deluded themselves into thinking they had a case or might have a case.  One potential client, a spurned lover in an affair gone bad, simply wanted me to tell her how to get revenge or her former boss, her former lover.  

I am not really in the revenge business.  For one thing, how can I be sure that the available "revenge" will be enough revenge?  It is never wise to accept clients you cannot hope to satisfy.  But, it is flatly unethical for a lawyer to file a claim s/he knows is not well grounded.  If you do that too often, you, as a lawyer, will gain a reputation for weak claims.  So, ultimately, it is simply bad business to file weak claims.  

So, yes, it is very rare, but once in a great while people do come see me about claims they know or should know are weak.  But, you know, out of some thousands of potential clients, 2-3 is not too bad.  The overwhelming majority of clients who come see me are very sincere, even if they may be wrong or simply lack objective evidence.  Most just want to know: "Do I have a valid claim?" 

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So many clients or potential clients have come to see me or discussed their problems with me on the phone.  Invariably, the pattern goes like this:  They are so scared about their job and nervous about seeing me.  Many are so frightened that I will tell them they do not have a case or that the law does not protect them.  So, they often focus on the wrong things.  They cannot tell me what I most need to know.  Often, they recall specific incidents, what I refer to as evidence, only when they drive home.   They then call me later and tell me more.  But, their recollection may come after I have already told them they have no case.  

I sympathize.  I know what it is like to be afraid for your job future and believe, rightly or wrongly, that you lack control.  It is frightening.  

Many times, I have to tell a potential client that they do not have a claim, or their potential claim is very weak.  Bad news does occur.  But, for the rest of the potential clients out there, just remember that what what a lawyer most needs to hear is why you believe you have a claim.  Why you believe you are upset.  As with a doctor, history is everything.  Most, the overwhelming majority of abused, harassed workers are rational and have reached their conclusions based on pretty decent evidence.  You need to explain why you believe certain actions are discriminatory.  

Many times, an employee tells me that they were treated unfairly in being disciplined for an objective, seemingly valid offense.  It is only when I press them that they explain well, Joe Schmo has committed the same offense and never been written up.  And, by the way, no one else has ever been written up for this offense.  Now, that is evidence that we can use. 

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 Again, it seems like I am one of the few following news regarding the Iraq war, but have to mention my support for the combat stress guys in Iraq.  The combat stress folks are in the news now, since a soldier attacked one of the combat stress units in Iraq.  A 3 star general mentions that he suffered from combat stress and sought help.  Some observers find his openness remarkable.  I do not.  Everyone suffers some combat stress, either while you are there or soon after returning home.  

As the report mentions, infantry does attract the Type A personalities.  But, we feel stress like anyone else.  I had a soldier working for me, who received little apparent support form his family while we were in Iraq.  His girlfriend then treated him badly.  This young man, who I love like a son, was the best soldier.  Just excellent.  Until his girlfriend issues, we could always rely on him.  In combat, there is no greater praise.  

He suffered some bad stress near the end.  We sent him to the combat stress unit for a weekend and he came back a new man.  They did a tremendous amount of good for this very remarkable soldier.  He too was macho and did not believe at first that he needed help. 

We all suffer stress.  Its the brave ones who face it and deal with it straight on.  My young soldier did. 

Nothing to do with employment issues, but maybe, this has everything to do with employment issues........  

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 Title VII of the Civil Rights act of 1964 prohibits discrimination based on sex, color, religion, and national (ethnic) origin.   Other statutes prohibit discrimination based on age and disability.  For Title VII to apply to your company, you must have 15 or more employees.  For the Age Discrimination in Employment Act to apply, you must have 20 or more employees.  Think about that.  Thousands of employers are not covered by Title VII or the other discrimination statutes.  

The intent was not to put too great a burden on smaller employers, the "mom and pop" businesses out there who employ a huge percentage of workers.  That is probably a good thing.  But, if you are being discriminated against by one of these employers, then that is not such a good thing.  A young man came to see me, once.  He had a steady girlfriend, someone he cared about very much.  But, his older female boss and sole proprietor kept "making moves" on him.  She just would not stop.  He was very upset.  He loved his work.  But, this steady pressure to cooperate was taking a toll.  I had to break the bad news to him.  Even with part-time employees, they were way short of 15 employees.  

He left my office knowing he would have to quit or risk losing his job when he was not ready for it.  Plus, his girlfriend was not happy with him for staying there as long as he had.  

In a perfect world, we would all lose or keep our jobs based on our merit.  But, in this world, we often lose or keep jobs through no fault of our own.  Welcome to free (or semi-free) enterprise......

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 I talked about how employee handbooks are not a contract.  That means an employer does not necessarily have to counsel an employee three times in writing before terminating that employee.  But, a question that often comes up is why would an employer want to counsel an employee in writing?  The most common reason is unemployment benefits.  In most states and certainly in Texas, a worker only gets unemployment benefits if s/he can show s/he lost the job due to his/her own fault.  Employers will try to claim the employee was a bad employee.  The best way way for the employer to win that argument is to show write-ups documenting alleged performance issues.  

And, if an employee accuses the employer of discrimination, written counseling regarding objective, non-discriminatory issues provides an effective defense.  In fact, in almost all of my discrimination cases, the employer will dredge up supposed write-ups in some way.  I used to firmly believe that employers could not accuse an employee of malfeasance without contemporary write-ups.  I formerly was sure no jury would believe an employer was upset about an alleged offense unless the employer could produce contemporary write-ups.  

So, imagine my surprise when a case I worked very hard on went to trial while I was serving in Iraq.  My co-counsel lawyer told me later we lost the trial probably because the jury believed the employer's claim they were upset with our plaintiff employees even though they had no write-ups at all to back it up.  Our clients were accused essentially of not working well with others (when just the opposite was the truth).  Yet, they apparently won on that one issue.  I am still in recovery from that shock.....

But, it still remains a valid rule-of-thumb: if you want to show a non-discriminatory reason for a termination (or some other adverse personnel action), you better have some write-ups.  

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 Watch what you say.  You hear that advice, but how many of us really follow it?  Too many people are still saying things they shouldn't.  In a recent report, the San Antonio Express news reports that a former head of the Department of Public Safety resigned due to alleged harassment of female subordinates.

I served in the Texas National Guard for many years.   I would sometimes provide our annual EEO briefing.  I urged my fellow Guard members to watch what they say.  The only safe joke these days, I told them, is a good Aggie joke.  Many did not believe me, I know.  But, inappropriate comments still go on.  Still to this day, 15 years later, men say inappropriate things to women.  In this article, the women, all successful in various walks of life, explain that they overlook the inappropriate remark depending on the age of the speaker or the context.  Many victims of discrimination do indeed try to overlook the early stages of discrimination or the less threatening forms of discrimination.  But, then the discrimination becomes more clear and those earlier comments take on greater importance. 

I am a lawyer.  My job is to minimize risk.  So, you supervisors out there, or soon-to-be-managers out there, watch what you say.  As a lawyer representing victims of discrimination, my best evidence is what you say.....

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 Arbitration for labor unions has been around forever.  Arbitration has only been in use for the last 10 years or so.  Employers started establishing policies for arbitration in employee handbooks in the late 1990's, in response to a few key court decisions.  At first, most employment lawyers who represent employees were very concerned.  National Employment Lawyers Association (NELA), of which I am a member, has sought to reverse this trend for many years.  

The issue is that arbitration means a supposed neutral person will hear both sides regarding the employment dispute.  That means there will be no judge or jury.  Often absent are the tools we normally use in a lawsuit: discovery about the evidence held by the other side. confronting witnesses, etc.  Worse, to gain access to an arbitration, an employee must agree to bear some of the costs of the arbitration.  Since there are many, various fees and since some arbitrators charge $500/day or more, the costs quickly add up. 

Now, a sister organization to NELA, Employee Rights Advocacy Institute has found in a survey that 59% of potential voters oppose forced arbitration in employment and consumer agreements.  The support is the same whether they be Republicans or Democrats. 

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 One question that frequently comes up is what constitutes "sex harassment."  That has been a very important question in the proceedings against a federal judge.  Judge Sam Kent was sent to jail for 33 months for abusing his position and harassing female subordinates.  Certainly, his actions, groping females, was clearly sex harassment.  But, generally, any unwanted attention based on gender constitutes sex harassment.  

But, look at that statement closely.  The actions must be known to the victim.  If not know, there is no way to know whether it is unwanted.  The stereotypical grafitti on the wall of the men's room only becomes an issues when it becomes known to the victim.  And, the actions must be based on gender.  If the grafitti concerns both men and women, then it is probably not based on gender.  

Earlier, Judge Kent tried to claim the touching was consensual.  There are many ways to show consent or non-consent.  It helps if a victim complains about the problem to someone else at about the time of the unwanted attention.  But, the best way to show lack of consent is simply for the victim to file a written complaint about the actions.  Many victims do not complain early on, simply out of a desire to "fit in" or try to get along.  That is part of what makes sex harassment cases problematical.  If employment cases were easy, then the PI lawyers who advertise on TV would be doing them....

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 One thing many of my clients overlook is that employers really are human.  Yes, they did some terrible things to you and to others.  They have been insensitive or worse, sometimes much worse.  But, often, the employer making decisions in a lawsuit are far removed from the terrible crimes.  Often, the senior manager simply never saw that side of "Joe Abuser" and cannot believe it.  Sometimes, Senior Manager does not know Joe Abuser directly.  But, Senior knows and trusts Middle Manager who vouches for Joe Abuser.  

You see some of this in Michael Maslanka's entry about his mom.  Mike represents employers mostly.  In this entry, he tries to teach his clients to try to see the point of view of the possibly  abused employee.  He refers to issuing an After Action Report to his clients and educating them on how to void paying out another zillion dollar settlement.  

Keep that in mind the next time you engage is filing a grievance or lawsuit.  The failure of management to appreciate how strong your claim is may not be due to even more abuse.  It may simply be due to misplaced trust.  

Happy Mother's Day to you moms.....

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All the big employers have them: employee handbooks.  They love their handbooks.  They spend so much time and money putting them together that they would have to love them.  So, of course, many employees come see me and first thing they say is the Employer did not follow their own policy.  The employee says it like that simple fact should answer all my questions.  But, that fact answers few of my questions.  

The fact is most of those employee handbooks are not even close to binding on the employer.  This most often comes up when an employee is fired and they complain that they were not written up three times before they were fired.   Sure, many employer policies state that an employee must be written up three times before being fired.  *But* an employer's policy is usually not binding on the employer.  I guess too many employees have sat through too many HR meetings when HR discusses their wonderful and well-thought out employee handbook and how managers are expected to follow these policies.  

And, that makes sense.  Most policies are designed to give someone a chance to improve.  Often, if given the opportunity to improve, most employees do.  

But, unfortunately, almost all employee handbooks now come with a proviso that these policies are not binding and do not form a contract.  Due to some court decisions in the late 1980's and early 1990's, employers started putting a clause in the handbook that states the handbook is not a contract.  So, of course, seeing that clause, the judges found handbooks to not constitute a contract. So, the the employer was not bound by its own handbook, ...  that the employer used to love so much.  

So, sure, now it is okay to fire an employee with only one written discipline.  So, now, it is okay to not try to salvage an otherwise productive employee.   But, so long as everyone knows this, there should be no surprises.....

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 Seems like I am one of the few following the trials of soldiers accused of atrocities in Iraq.  I follow them because I am a retired Reserve officer and because I spent time in Iraq.  The latest trial concerns a 101st soldier accused of a revenge killing in Southern Iraq.  This soldier is facing trial in a civilian court where it will be nearly impossible, I believe, to educate the jury on just how difficult things are and have been in Iraq.  He is presumed innocent, of course.  But, whatever he did or did not do, life in a war zone is hugely difficult.  

When I was in Iraq, I tended to minimize the difficulties when talking to folks back home.  You do not want to visit your problems on people back home.  Too, as a soldier, you are never sure how much the folks back home will understand.  So, the job of educating the jury will be very difficult for this civilian criminal defense lawyer.  

That is not a new problem for lawyers.  This trial is just more so.  In the average discrimination case, for example, the challenge is educating the jury about the daily obstacles a woman faces, or a minority faces.  That is why, contrary to popular belief, when we pick a jury, we seek to strike jurors biased against our client.  But, we also seek to keep jurors who might have some understanding of our client's predicament.  There is a saying in Iraq that applies to juries.  "Things are never easy in Iraq."  

I do not know what this soldier did or did not do.  But, I do know that not many on the jury will understand......

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 I have been in the trenches, too long.  II have been representing employees in their struggle for justice and vindication, too long.   After all these years, I tend to look at judges in terms of how they will look at employment lawsuits.  I should be more balanced, but have to admit that I am not.  President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.  

That is music to my ears.  I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch.  Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables.  I did what I had to do.  My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?"  He meant will I remember the working people when, in his mind, I become rich and successful?  Well, I am not rich, but I hope I do remember my roots.  Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.  

Struggling by itself does not make a good judge.  But, it does lend perspective.  As a country, we know this already.  That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat.  As a country, we know that people who are not female will not understand fully the issues of women.  We know that Caucasians will not fully appreciate African-American issues.  Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.  

How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment?  The life  experiences of a judge do matter.  

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