You're a woman in a managerial position. You might think you are more removed from sexual harassment issues than your blue collar counterpart. No, says a recent study. a University of Minnesota Sociologist finds that sexual harassment is 137% more common among female managers than among blue collar women. Ms. McLaughlin concludes that because of gender norms, people are still not accepting women in power positions.
A recent study of 1004 attempts to unionize a workplace finds that employers threatened to close the plant in 57% of those attempts and threatened to cut wages and benefits in 47% of the campaigns. In 63% of these campaigns, supervisors met with employees in one-on-one meetings to ask workers whether they supported the union. Of course, interrogating workers about union preferences violates the National Labor Relations Act. The study was conducted by a Cornell University professor.
Unions are not a major force in Texas, but even today, union traditions, such as morning coffee breaks, influence many workers in Texas. Without some union presence somewhere in the workforce, many workers in Texas will suffer.
There are several ways to prove discrimination. A very common method is to focus on disparate treatment. Bob commits some offense at work. He is treated differently than Pedro regarding the same offense. If nothing can explain why Bob gets treated differently, then one might conclude that he was treated differently due to his ethnic origin. This is a difficult way to show discrimination. Mike Maslanka discusses the challenges when he discusses a recent case, Lee v. Kansas City Southern Railway Co. I hear this all the time. The "other" employees are treated better because they are the boss' favorites. They come in late and nothing happens to them.
The challenge is to show that Bob and Pedro are good comparators. Do they have the same boss? Are they in the same department? If Bob was disciplined for the same offense, but Pedro was not, is the offense truly the same? Do Pedro and Bob have the same responsibilities, training, experience? All these are factors. What the Lee decision helps with is it shows that if Bob ad Pedro have the same second level supervisor, then yes, they might be good comparative employees. That is, if the boss' boss approves the discipline, then yes, they might be good comparators. So, yes, if Bob gets disciplined for an offense for which Pedro was not disciplined, then that different treatment might constitute evidence of discrimination.
Those employee handbooks are so pretty and well-written. When your boss said they were binding, you probably believed her. But, no, these handbooks are usually nothing more than a guideline. They are not at all binding, if the employer did its homework. See Russell Cawyer's post explaining how to be sure they are not binding. I have talked before about how these handbooks are almost always not binding.
But, of course, the trick the past few years has been how to make sure the overall handbook is not binding but make sure the arbitration clause *is* binding. Employers do love those arbitration clauses.
It will probably take months for Judge Berchelmann to review and draft a statement of facts regarding Judge Sharon Keller. As Rick Casey mentions, Judge Berchelmann is well-suited to this task. I have always known him to be a no-nonsense sort of a judge. After he issues his opinion, Judge Keller will surely appeal a negative opinion. So, a final result is many, many months away. But, in the short-term, Judge Keller has suffered a black eye. She knew the late call from the TDS lawyers was significant, yet she did not mention it to any other judge.
It is a critical thing to understand in every lawsuit. Many people just flat do not remember what happened. Ed Marty, the general counsel for the Court of Criminal Appeals, in the end, simply admitted that he did not remember what he told Judge Johnson. This from a trained lawyer with many years experience.
In one of my law school classes, a professor told a story about something another professor did once to illustrate this point. The professor had someone come by right at the start of class and pretend to shoot the professor. The professor falls to the floor and then quickly rises and reassures everyone he is ok. He then asks the class to describe the shooter. Everyone in the class had a different description. Everyone. Trials and lawsuits are not like on TV. Everyone may had a different recollection about what happened. The truth may be very elusive.
A soldier from San Antonio was killed in Afghanistan, yesterday. SSG Bowen died from wounds suffered in an IED (improvised explosive device, aka "roadside bomb") explosion. I think we should all devote a moment of silence to those killed serving you and I.
It is concerning that Judge Keller says she would do nothing different if the same situation arose. She is the same judge who years ago drafted an opinion regarding a man wrongfully convicted of rape. DNA evidence exonerated the man after spending many years in prison. When the appeal came through the CCA, she wrote the opinion saying that just because his DNA did not match the semen found on the victim, he could still have performed the rape. She claimed that the man could have used a condom. Such an opinion is so far from the reality that I know.
Judge Keller worked for the Harris County DA office for many years. Most of her time was spent in the appellate section. Lawyers who do primarily appellate work are often just not exposed to the realities of witnesses who forget, prevaricate or simply make mistakes. Appellate lawyers work with a cold record. I spent 25 years in the Army Reserve and National Guard. I was a combat arms officer. It always seemed to me that combat arms soldiers had different views than some combat support soldiers. Our exposure to different realities colored our views. It is similar to clerics who spend little time as a pastor. Such clerics often do not make the best bishops. You need a certain background to understand the complexities of the human condition.
Yes, a judge's background does make a difference.
As often happens in trials, there is substantial dispute over what happened when lawyers for Michael Richard seeking more time. The call went to Ed Marty, general counsel for the CCA. He has given different statements about happened. In one account, he says he told the duty judge, Cheryl Johnson, that the lawyers called. In other accounts, he did not tell Judge Johnson. He appears to acknowledge that he has memory problems. He has retired and moved to Alabama.
Judge Keller is consistent that Marty told her they were calling for more time and she simply responded that some entity (the clerk or the court) closes at 5:00 pm. Judge Keller's lawyer emphasizes that the lawyers could have submitted a filing to any other judge. But, the lawyers appear to not have been aware of that. The general counsel was apparently careful not to tell the lawyers they could file with another judge - presumably to avoid charges of favoring one side over the other. But, like Richard's lawyers, I believe I would expect a court to tell me how to file a late, critical pleading. I would not expect to have to ask such a routine sort of question.
In any event, a man's life hung in the balance. Judge Keller's defense appears to essentially be that she simply provided information, an administrative act, not judicial. That claim does contradict her defense in the civil suit that her act was judicial (thus relying on judicial immunity). As is true in many trials, relying on hair-splitting is not a very effective defense. I suspect Judge Keller will get some sort of reprimand.
Well, Judge Keller admits she knew something. She admitted that when the call came, she knew at a minimum that the lawyers for Michael Richard called about the execution and they were not ready to file something. See the San Antonio Express news story. That is pretty damaging. Its common knowledge that shortly before a scheduled execution, lawyers will file something to try to stop it. But, this was even more true since at the time the US Supreme Court was considering accepting a challenge to the lethal injection system.
The big question will be, for pete's sake, she did not refer such a call to the duty judge, Cheryl Johnson. Reading between the lines, it looks to me like she believed she was simply stating a fact. But, if she knew at a minimum they were not ready to file something and it was very likely they wanted to file something, she had to know there was an issue of some sort - an issue that must go to the duty judge.
Sexual harassment becomes more subtle in today's climate, reports MSNBC. Instant Messaging, texting now allow more options to pursue an inappropriate relationship in more subtle ways. But, speaking as a lawyer, that might make things easier to prove, if the victim thinks to save the IM's or text messages.
I do not know what happened, but, yes, if a judge fails to follow procedure, then that is a problem. The trial of Sharon Keller started yesterday. She is presiding judge of the Court of Criminal Appeals. That means, she is the chief judge for the highest court in Texas regarding criminal cases. If she did know that attorneys for Michael Richard were calling for more time and she did not give them that time, then, yes, that would be a pretty clear violation of something.
The trial is starting out not too well for Judge Keller. Another judge on the Court of Criminal Appeals disagrees with Judge Keller on a key fact: did anyone tell Judge Cheryl Johnson, the duty judge that day, about the call asking for more time? Judge Johnson says no, no one told her. If so, that would be a pretty clear breach of procedure.
The State Commission on Judicial Conduct used to be a fairly weak organization. But, some ten years ago, they started to truly enforce judicial ethics. This is by far the biggest case they have taken on. But, if the allegations prove to be true, it is one of the more egregious cases they have dealt with to my knowledge.
I have talked about this before. Reasonable settlement offers lead to reasonable, or halfway reasonable responses. When you are in the midst of a lawsuit, both sides have their "dander up." It is hard to be reasonable. But, it is just when it is hardest that it is most critical to appear reasonable. Pursuing an employment lawsuit is very personal, but one also has to approach it like a business. Because, if you lose, the perpetrator is doubly rewarded.
This becomes critical when you want the other side to make a settlement offer. You want them to make an offer, because you want a choice. You want to choose between settling a case or going to trial. Trials are always risky, no matter how good your case is. So, before you go into trial, you want a choice. Otherwise, you risk the worst scenario: the perpetrator of your discrimination is rewarded once when they discriminate and again when you go to trial and lose.....
If you add your boss to your Facebook page, be sure to remember that when you start complaining about your job. Workplace professors describe a British worker who apparently forgot she had added her boss. She described him later as a "pervvy wanker" and said other unflattering things about him and her job. The boss was not amused.....
Most employees who come see me have thought twice, three times, even 20 times before they decide to file a complaint, or worse, file suit against the employer. In his blog, Michael Maslanka cautions employers to think twice before going into "fight" mode when an employee files an EEOC charge or even a lawsuit. That is good advice. How many employees have told me that if the employer had only said they were sorry, or if only the employer did not do such-and-such, then they would not have called me?
I have some friends who run a chain of sandwich shops. A small chain. They did not attend college. But, they do much better than many so-called well-educated employers at avoiding lawsuits. If you make a mistake, they tell you. If they need to fire you, they tell you why. They do not escort you out of their shop. They treat even folks they fire with some measure of respect. Avoiding lawsuits really is not all that difficult. Minimizing the effects of a lawsuit is not all that difficult. It can be done....
One of the trials regarding the fight club at Corpus Christi State School started on Monday. It has attracted national attention. I have talked about this before. It is shameful conduct at the expense of some of our most vulnerable citizens. But, let's face it, we have the state school system we are willing to support. Our state school system exists as a place for those diagnosed with mental retardation. The state school system has a history of many, various abuses. Low wages and weak support lead to high turnover and the sort of climate that can produce a "fight club."
Russell Cawyer reports that the recent state legislative session amended the statute regarding non-compete agreements. The new law allows physicians access to patients seen within a year. The current law restricts the ability of employers to draft non-competes regarding geographic distance, time and activity. This new provision adds this one category in regard to physicians.
So, the four day work week is a popular success in Utah. As reported by the workplace professorblog. As some might recall, Utah state government employees went to a 4 day work week earlier this year, I believe, due to budget issues. Apparently, it has been a success and very popular with many state employees. Over 80% prefer the 4 days a week (10 hours per day) schedule.
We don't understand it. But, so many Iraq and Afghanistan veterans get it: traumatic brain injury. LTC Rivas got it and apparently died from it. We get it stateside, too, but TBI has become a singular feature of the current war. The IED's (improvised explosive devices or "roadside bombs") are unique to this war. When they detonate under an armored HMMV, the blast reverberates inside the thick walls. The concusion stays with you. When I was in Iraq, a couple of my buddies survived a couple of IED's. They simply drove through the explosions. But, the ringing in the ears, they said, stayed with them for months afterward.
LTC Rivas appeared in the news and at a forum or two on TBI. He had served in Civil Affairs units, as I did for a time. He was trying to put his life back together.
Many, many IED's result in no deaths. But, how many result in TBI? The Army is researching that question. I think the answer is far in the future. TBI itself is very hard to diagnose. Early studies indicate that TBI develops over time after the traumatic event. In the meantime, good soldiers like Ray Rivas suffer due to our lack of knowledge.
When President Clinton was still President and he was getting into some trouble about having lied in a deposition regarding alleged sex harassment, a former client called me. He was upset. He said Pres. Clinton is getting into so much trouble for lying in his deposition, but so-and-so manager lied in his deposition and did not get into any trouble. Former client's case had been race discrimination, but I understood his point. If the President supervisor gets into trouble, why didn't former client's supervisor get into trouble for lying in former client's case?
I had to explain to that managers and supervisors lie or stretch the truth in most depositions. They never admit to discriminatory acts or statements. And, prosecutors are too busy with more important crimes than to pursue perjury in civil cases (ie, non-criminal cases).
You see what happens when the Houston district attorney's office "coaches" a witness. Witness "coaching" often walks a fine line between outright lying and simple education regarding what a witness can do or not do. These attorneys got caught. This all stems from a sex harassment case against the former Harris County District Attorney, Ibarra v. Harris County.
Most defense attorneys do not even come close to getting caught. Most defense attorneys are very honorable, responsible officers of the court. But, a few are not (not unlike a few plaintiff attorneys). This is a fact of litigation. There is no "ah-ha" moment when a racist manager admits to his/her mis-deeds. Not in real life.....
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