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

 Most people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Texas is, of course, an at-will state.  But, even so, we do have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination. 

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122,001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection. 

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to the appropriate law enforcement agency. The report would need to be related to the reporting employee's official duties. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

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 The new regulations for the Americans with Disabilities Act have been proposed.  The EEOC promulgates those regs and seeks public comment before making them final.  You can view the new regs at this website.  These regs are based on the ADA Amendments Act which was passed last year.  Among other changes, they list new impairments that will be considered to be a disability.  Many of these new disabilities are impairments that might be in remission or episodic.  They make it clear that working is now a major life activity, which had been in doubt.  And, of course, as required by the amendment, the regs state that an impairment will be looked at in its non-treated form or without mitigation.  See the good folks at Workplace Prof for more discussion.  

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 I discuss this with clients so often.  How much is my case worth?  Most clients believe their case is worth millions.  And, it is.  To you.  But, what is it worth to a jury?  I have explained that studies of discrimination lawsuits have found that most often, juries do not award compensatory or emotional suffering damages when an employee wins.  Yes, that's right.  Even when you win, most juries award nothing for emotional suffering.

And, when a jury does award compensatory damages, they tend to award more or less the equivalent of lost pay.  In a recent case before a federal jury in Austin, a UTHSC professor was awarded $900,000.  That amount will be reduced to $300,000, since Title VII limits compensatory damages to $300,000.

But, even as a $900,000 award, his lost pay was very high.  His pay was cut 25% in 2003.  So, he has lost some $175,000 in pure wage reduction.  Add whatever he would have lost in retirement benefits, because now his pay is at a reduced level.  Add whatever he could prove in lost raises or bonuses.  Add whatever he could show was lost income because UTHSC apparently caused his discoveries to lose value.  Then, add whatever value the jury awarded because he was diagnosed with depression, heart problems and diabetes.  In fact, his first trial was apparently cancelled when he had a stroke at the trial.  

So, yes, those million dollar judgments are out there.  But, to get those high judgments, you have to suffer a heck of a lot and you have to already have a pretty high income anyway.  

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 Employers do the craziest things.  One employer in Tennessee, according to this report, tested employees for using *lawful* prescription drugs.  Yes, the employer was testing for prescription drugs. They apparently rook action against employees who refused to stop taking some prescription drugs.  The EEOC filed suit, saying these tests amounted to unlawful medical inquiries.  Unlawful medical inquiries would violate the Americans with Disabilities Act.  Those crazy employers......

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 An interesting decision on non-compete agreements.  The Court of Appeals in Houston found a non-compete reasonable. See:  Gallagher Healthcare Ins Services v. Volgesang.  The former employee was an insurance broker for Gallagher Healthcare.  After twelve years, she resigned to work for a competitor.  The non-compete provided that the employee could not have contact with 80 customers she had done business with in the prior two years for another two years working for the competitor.  The court found this provision a reasonable substitute for the customary geographical limitation.  So, instead of the typical geographical limit, this non-compete provided the employee could not contact for two years her prior customers.  See more at Russ Cawyer's post about this case. 

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 The real Norma Rae died last week.  Chrystal Lee Sutton worked in a  North Carolina textile mill when she started trying to organize a union at the plant due to the low wages and poor working conditions.,  She was fired and forcibly evicted from the plant.   As she was being taken away by the police, she stood up on a work table and held a sign that said "Union."  She slowly turned around so everyone could see the sign.  Just like in the movie.  Her co-workers stopped working, cut off their machines and gave her the victory sign.  All of a sudden, the plant became very quiet.

A few years later, a court ordered that she be awarded lost pay and reinstated back to her old job.  A few more years later, the movie "Norma Rae" was made and now her story is history......

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 Sometimes, the best advocacy is the least advocacy.  Subtle can persuade better than histrionics.  Read Mike Maslanka's post about the president's speech last week.  When the President was accused of lying, he did not over-react.  He under-reacted.  His subtle reaction said more than histrionics ever could.  Mike then relates a similar experience from one of his trials.  Mike ia primarily a defense lawyer doing labor and employment cases.  So, the plaintiff he refers to was probably an employee.  An employee who blurts out anything demeaning or insulting will surely lose.  Mike played it well: he under-reacted.  He probably aroused the jury's sympathy.  

Its a scary thing to lose a job through no fault of yours.  Its scary to get in trouble at work through no fault of yours.  But, do not over-react.  In trial, the judge and jury see everything you do.  Whatever you do becomes magnified.  The jury may not understand legal issues.  But, they will surely understand human dynamics.  Under-reaction says much more.  

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 A former Corpus Christi State School employee was convicted in the "fight club" trials.  D'angelo Riley was sentenced to 4 years in prison and 8 years probation for arranging some of the fights.  One report said he was one of the ring leaders.  He was the second state school employee to receive prison time for these fights between persons diagnosed with mental retardation.  

This is a shameful episode in our society.  We have a wonderful state, but we underfund our state schools.  State schools is where we send our citizens with mental retardation.  I have discussed this before.  

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 What you say online can come back and get you in court.  See a list of such cases from IMS.  

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Many employers require drug tests as a requirement for employment.  But, few employers conduct the test themselves.  Most employers contract out the actual drawing of the specimen and testing.  Some laboratory will perform the test.  Some employers will fire an employee for testing positive for a drug test.   What happens if the lab makes a mistake?  Well, if the lab makes a mistake, the lab makes the mistake, not the employer.  So, any legal action would lie against the lab, not the employer.  

But, under Texas contract law, an employee may not have an action against the lab either.  Since, the employee had no agreement with the lab.  Shoot, the employee would probably not even ever see the lab.  So, yes, in some situations involving a false positive, the employee is flat out of luck with no right to file suit against anyone.  Not the lab and not the employer. 

I get calls like this about once a year.  Unfortunately, false positives happen all too often.   

Same thing happens with criminal background checks.  If the "checker" falsely reports back some criminal history, the employee's action will be against the criminal background checking firm, not the employer.  The remedies (ie, what you can sue for) will be limited.  See Zepeda v. Industrial Site Services, Inc., 2008 WL 4822205 (Tex App. Corpus Christi unreported decision). 

Welcome to "at will" employment, the rule in most states.  

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If an employer accesses an employee's social networking site without permission, or worse, accesses the site under threat of termination, then the employer may be liable for a claim of invasion of privacy and violation of the federal Stored Communication Act.  Such was the result in a federal lawsuit in New Jersey.  Delaware Employment Blog explains that the employer noticed a private website on Myspace.  The Myspace page was put up by an employee and was used by many employees to discuss work.  The manager saw negative comments about the restaurant where they all worked.  Management then coerced a co-worker into providing the log in and password.  They later fired two employees for poor attitude based on their comments on the private Myspace page.  Pietrylo v. Hillstone Restaurant Group, Inc.   A jury trial found in favor of the two fired employees and against the restaurant. 

Delaware Blog suggests that it was the act of forcing the employee to give up her login info for a private closed membership site that made this case actionable.  

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 Workplace bullying leads to insomnia, even for those co-workers who merely observe the harassment.  In a study conducted of middle aged persons in France, men and women who suffered some harassment at work were twice as likely to suffer sleeping problems.  For the study, they defined bullying as hostile actions designed to offend or oppress over a long period of time.  Men who simply observed bullying were 60% likely to suffer trouble sleeping, also.  Women who observed bullying were 20% more likely to also suffer some insomnia.  The study was conducted by University College of Dublin, Ireland researchers.  

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 I used to get referrals from the San Antonio Bar Association.  These referrals included many clients who had never spoken to a lawyer anywhere.  Many of them would call complaining basically about unfair treatment.  I still get calls like that, sometimes.  They might say, "my employer fired me because they claim I did not call in, but I did call in."  I have to explain to potential clients like this that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.  I have talked about this before. 

We have what is known as "at-will" employment.  An employer can fire you for any reason (other than various types of discrimination).  Just as the employee can quit for any reason.  So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you.  I wish that was not true.  I wish our state laws were different, that they required some sort of "just cause" for termination.  But, most states do not require just cause for a termination.  Only some 10 states require a good reason for a termination.  In the rest of the states, such as Texas, an employer can fire you for the wrong reason.  

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 If you have a problem employee, it is important to document those problems.  Written counseling serves many purposes.  Michael Fox discusses a case in which the employer did not document those problems and lost a claim for discrimination because of that failure.  Of course, he assumes the alleged work problems were genuine.  Maybe they were genuine and maybe they were not.  If the issues were genuine, then it is even more important to document those problems.  A good employee, or a formerly good employee, as this lady appears to have been, deserves a chance to improve.  

Of course, as Mr. Fox notes, it hurt the employer that it did not follow its own progressive discipline process.  That failure to follow its own policies can help show that the employer's concerns are not genuine and have been fabricated.  

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 A veteran of the Iraq war gets life for killing unarmed civilians in Iraq.  Reports the CBS news website.  I spoke about this sometime back.  It is a heinous crime.  But, I have noticed that many of the line troops, the ones conducting "kinetic operations," never work with the "nice" Iraqis, the ones who want to better their country.  That can lead to a jaded view.  

As I mentioned in my post on May 5, this would be a difficult trial for a defense attorney, to try to explain to a jury what life was like for this young soldier in Iraq.  That is one of the many challenges for every trial lawyer in every trial. 

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A recent Judson High School graduate, LCPL Chris Baltazar was recently killed in Afghanistan.  Reports the San Antonio Express-News.  The third San Antonian killed in recent weeks.  

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 The Fifth Circuit Court of Appeals issued a good decision on reasonable accommodation recently.  EEOC v. Chevron Phillips Chemical Co., LLP.   One of the few decisions to plumb the depths of acommodation and how the interactive process should work.  The lower court granted summary judgment in favor of the employer.  That is, the court found that the plaintiff had no case.  A summary judgment is a term of art meaning quick judgment, one without the need for a trial.  The lower court found that the initial request for accommodation, a simple release note from the doctor was *not* a request for accommodation.  Because, the release note did not offer a possible accommodation.  

But, the Fifth Circuit reversed this finding.  The law does not require magic words, said the higher court, when asking for an accommodation.  The employer was already aware of the employee's disability.   So, that knowledge plus this release note is enough to indicate the need for accommodation.  The employer was, in effect, on notice regarding the need for acommodation. 

An employee seeking accommodation is not required to come up with the solution on her own.  So, yes, the release note from the doctor was enough in this case to serve as a request for accommodation.    Once the employee presents a request for an accommodation, then the employer *must* engage in an interactive process to arrive at a solution.  Here, the employer simply said, no, "this isn't going to work."  Such a statement shows the employer was refusing to engage in the interactive process, said the higher court.   That refusal violates the Americans with Disabilities Act.  Both the employee and employer must talk about the requested accommodation and arrive at a solution together.  

 So, for these reasons, the higher court found that summary judgment was not appropriate and the plaintiff should have a trial on these issues.  As Mike Maslanka has said, the future issues in ADA cases will probably lie in the accommodation process, or lack of such a process.  

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 Eric Holder, the US Attorney General, is pushing the Dept. of Justice back to enforcing higher impact civil rights.  So says the New York Times.  The DOJ will focus more on high impact litigation, instead of the former administration's preference for individual cases.  DOJ can prosecute employment discrimination cases against state or local governments.  They can also prosecute employment discrimination cases against federal contractors.  

What this means is that DOJ's Office of Civil Rights will focus on pattern and practice sort of cases involving many employees, not just one or two.  That makes sense.  DOJ's resources are limited, just as the EEOC's resources are limited.  It makes more sense to focus on cases ainvolving more potential victims of discrimination.  

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You thought your job was tough.  One woman sued her employer, the labor law firm Littler Mendelsohn, for not allowing her bathroom breaks.   Since they do labor and employment law, one can only presume they believed they have support in the law somewhere for no bathroom breaks.....

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