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

 "You get a rest break every four hours," the seasoned warehouseman told me back in the 1970's.  He knew everything.  I just assumed he was right about this, too.  But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours.  But, there is a regulation encouraging employers to provide a rest break every so often.  "Encouraging" is not the same as requiring.  Now, I tend to believe the rest break tradition was simply a vestige of the days when collective bargaining agreements were much more common. 

I also heard there was a requirement for a meal break every so many hours.  That is also not necessarily true.  But, if your employer provides a meal break, they must not interrupt you unless they are paying you for that break.  As the regulation says, if the meal break is bona fide, then it cannot be worktime.  These regulations are all enforced under the Fair Labor Standards Act. 

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 You work for an employer.  The employer has trade secrets and leads it wants to protect.  It asks you to sign a non-compete agreement when you hire on.  Most non-compete agreements provide that after you leave your job, you will not compete with your employer for a specified amount of time.  Is that non-compete agreement binding?  It would be binding if the employer gave you something in *consideration* for signing that non-compete.  Are stock options sufficient consideration?  A recent Dallas state court opinion says no.  Russell Cawyer, who generally represents employers, says money or other financial consideration will not be enough consideration to support your promise not to compete against your employer.  The employer should offer some binding promise, such as providing trade secrets.  

Once the employer makes good on that promise, then the non-compete *may* become binding.  See Chris McKinney's take on the current law regarding non-compete agreements.  

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 It must be tough in prison.  Allen Stanford, the investor who stands accused of bilking his clients out of millions of dollars has filed a motion asking to be transferred from the Conroe detention facility to a downtown Houston facility.  Seems the air conditioner at the Conroe facility has been out for a week. There are no windows.  It sounds tough.  He has not been to trial, yet.  So, we need to presume he is innocent.  

When I was with the US Army in Iraq, we had air conditioning most times.  But, hey, what about those times when we did not have a/c?  Guess we should have asked for a transfer to some other facility, too.....

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 Half a million dollar verdicts are very rare in employment cases.  As I have explained to many clients, the big dollar verdicts generally go to the clients with big lost income.  CEO's, doctors, etc. get the big verdicts because they lose so much money in salary and retirement benefits.  So, it is no surprise that a $500,000 verdict was won by a doctor in California.  

But, note also what the employee's lawyer says: the employer's lawyer made the mistake of sneering at the employee during the trial.  The big dollar verdicts require something else: they need a "good" bad guy.  Juries get upset when they award large amounts.  Studies show that generally juries get mad at someone when they award large amounts.  

People complain about the McDonald's spilled coffee case from many years ago.  What most people do not know is that the McDonald's executive who testified about how supposedly safe their coffee was testified badly.  He came across as rude and arrogant.  

So, if you want a million dollar verdict, you need to be making six figure income.  You also need a "good" bad guy.......

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 A lawyer friend had a client once who insisted on asking for $1.5 million to settle a discrimination case.  The client did not make anywhere close to a six figure salary.  He had lost very little income income.  My friend the lawyer, tried and tried to describe to him the reality of low damage cases and how much value they held.  After thinking about it a few days, the client came by the office to drop off some papers.  He stuck his head in the door.  Said he had been thinking about it.  Said he was prepared to lower his initial settlement offer.  ...   Said he was willing to settle for $1.0 million.  

He just did not get it.  He did not get that you need to trust your lawyer, not some friend or relative who claims to know something about the law.  He did not get that low damages equals low value in settlement talks.  If you have lost little or no money, then your case is worth little or nothing.  If you do not trust your lawyer, then you should hire another attorney.   

When you hire a lawyer, you hire him/her for her judgment.  Skills, education, experience are critical components.  But, the most important factor is judgment.  Is your lawyer objective enough?  Will she believe in your case yet still be objective enough to speak on your behalf

As for that client who came down to a "reasonable" settlement offer of $1.0 million, my friend learned later that the client was relying on advice from a paralegal friend.  My friend lost the case on summary judgment.  He recommended that the client not appeal.  But, the client found a lawyer anyway and appealed.  He lost.  

A settlement offer of $1.0 million in that particular case was so unreasonable that the employer never responded with a counter-offer.  As I have told many clients, its one thing to suffer unfair treatment at the job.  But, to let the son-of-a-gun win at trial or during the lawsuit just makes it all so much worse.  

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 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

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 For a good summary of the rights of Texas employees when they lose their job, see Aaron Ramirez' post from last March.  Note that Aaron makes no mention of the employer paying the employee for any accrued vacation or sick leave.  An at-will employee, which includes most employees in Texas, has no right to be paid for vacation and sick leave.  You receive severance pay only if the employer expressly agrees to do so.  

A terminated employee has the right to continue health insurance.  But, you will have to pay the employer's portion, wichh often makes the health insurance too expensive. 

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 The federal minimum wage will rise from the current $6.55 per hour to 7.25 per hour, effective July 24, 2009.  This will be the final minimum wage increase under the law passed in 2007, the Fair Minimum Wage Act of 2007.  This increase applies, of course, to exempt employees.  See the Fair Labor Standards Act for more information. 

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 The City of Bozeman, Montana will no longer require Facebook passwords as part of its application process, as reported in Delaware Employment Law blog.  That was a risky decision.  How many applicants would pass up this relatively large employer (in that neck of the woods) if they have to reveal too much.  Too, the city is a government entity.  Requiring a Facebook password would present privacy issues the city need not face.  

But, take this as a warning - there may be more employers out there considering such a measure.  The best protection for any employee is to simply be careful about what you put on Facebook, Myspace, etc.  

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 Employers, if they are doing their job, should counsel an employee in writing for a serious offense.  Part of that counseling is the need to verify that the employee has received the written warning and understands it.  That is why the employer will ask the employee to sign the disciplinary warning.  Signing does *not* mean you agree with it.  It only means you have received the warning.  

A very helpful website, www.canmybossdothat, explains this and more.  

When you do get a written warning, if you can, you want to add a brief sentence or two about your side of the story.  Add your story and then sign it.  Ask for a copy of the write-up if a copy is not offered. 

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 They are perhaps our most vulnerable citizens.  We refer to them as developmentally disabled, today.  We used to refer to them as mentally retarded.  Whatever the name, they deserve better.  Trial over the so-called fight club at Corpus Christi State School has started.   Developmentally disabled function at many different levels.  Some can live quite independently.   Others, must rely on places like our state school system.   But, all deserve better than what they got at Corpus Christi State School.  

My previous employer, Advocacy, Inc. is charged with overseeing state schools and other mental institutions.  As Beth Mitchell mentions in this story, the larger concern is that administrators had to have had some idea of what was going on.  What, if anything, did they do about the fight club?  Why did it take news reports for them to finally take some action?  For more information regarding the state wide problem, see Advocacy's report.  

I visited San Antonio State School many times.  SASS residents are developmentally disabled.  I found many of the administrators to be concerned, dedicated professionals.  But, we do pay the first line aids bottom dollar.  State schools suffer from a high turnover.  We can do better.  Will we?  

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 I'll be gone this week and next.  No. 1 son, No. 2 son and I will travel to Yellowstone National Park.  We have been to a couple of national parks and they have all been just excellent places to visit.  If you don't vacation sometime, I recommend that you do so.  Even the smallest budget can manage something.  if you do take vacations, I very much recommend our wonderful, amazing national parks.  

A couple of weeks ago, No. 1 son and I went to Northern Tier canoe base.  After that "high adventure" trip, a much less strenuous trip to Yellowstone is very appealing.....

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 You love your job.  You love your job so much that you like to blog about it when you get home.  But, what if your employer does not like your comments?  A recent federal appeals court decision applies some limits to what you can say in your post.  See Richerson v. Beckon. 

The only reason you have some rights is if you are a government employee.  As a public employee, you are entitled to some 1st Amendment rights when discussing issues that affect the public.  

The 9th Circuit Court of Appeals drew the line at several vituperative and highly person comments. That makes some sense, since 1st Amendment speech must be concerned with public, not very personal views.  But, remember, you only get to make such comments in the first place if you are a public employee commenting on matters of public concern.  Private sector employees have no comparable free speech rights. 

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 Unemployment rate is up to 9.5%.  The average work week is now down to 33 hours per week, the lowest since 1964.  This is not good nationally.  Fortunately, we are in Texas and are somewhat insulated from the bleak picture.  

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 In a recent decision, a federal court in California found it unlawful for an employer to monitor an employee's key strokes in order to obtain his password to a personal email account.  The U.S. district court found this action violated the Electronic Communications Privacy Act, passed in 1986.  The decision, Brahmana v. Lembo,  is important.   While the email account may be personal, the equipment used to access the account belongs to the employer.  The courts have wrestled with this issue for some time and will, no doubt, continue to struggle with he boundaries between employee property and employer property. 

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