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

 Well, it must be getting ready to snow in July, because the Texas Supreme Court issued a pro employee decision.  See Mike Maslanka's post.    In a 9-0 vote no less, they found in favor of a group of employees who stuck around when an employer was being sold.  Management had told the employees that if they stayed until the comnpany was sold, they would receive 5% of the sales price.  They stayed.  But, the company reneged and refused to pay them the 5%.  The employees sued on basic contract principle: if you take action based on a promise, then that promise becomes a contract.  The company defended on the basis that the employees could have terminated the employees at any time.  Thus, the promise was illusory.  

The Texas Supremes disagreed, finding that if the employer's argument was accurate, then any wage, salary or pension would be illusory.  So, yes, if an employer promises a percentage of the sales price, and the employees rely on that promise, then that promise becomes an enforceable contract.  Venegas v. American Energy Services (Tex. 12/18/09).  

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 Job troubles occur for hundreds of different reasons, whether due to discrimination, breach of contract or simply a bad economy.  CBS News offers some good tips to be prepared for that sudden, unexpected loss of your job.  

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 Every Christmas, I look back to my Iraq Christmas in 2005.  I served as a Civil Affairs officer supervising a staff of 3.  In the war zone, everyday is a work day.  On Christmas Eve, we worked a full day.  After duty hours, my unit attended a barbacue put on by our sister Psychological Operations Company.  Our unit theme was Pirates, so we all wore our Pirate accoutrements.  For most of us, that meant simply wearing an eye patch.  But, our unit First Sergeant, supported by a resourceful spouse back home, came in full Pirate regalia, from mock boots to a beard and plastic sword.  Santa appeared, looking quite jolly.  The beverage of choice was some tasty fake beer from Germany.  We enjoyed each other's company.  We were a family away from our real families.  We, some 40 of us, shared a bond forged in training and honed going outside the wire, knowing who we could rely on and who we could not.  We had made it this far, with no casualties.  It was a small celebration of life and duty in a far away country. 

Some of our Iraqi interpreters joined us, not needing to understand the occasion.  All they needed to know was that it was a celebration of some sort. 

Christmas day 2005 was quiet fortunately.  My staff section was able to take most of the day off.  I checked email and then went to Mass.   Mass in a war zone is sublime.  Life is reduced to its essentials.  Church was warm and comforting.  The Christian spirit filled the generic old Iraqi government building.  Light streamed into our little chapel, our rifles at our feet.  The priest was faith-filled and understood his small congregation. 

Later, I joined some friends to watch a movie (Christmas Vacation) set up on a laptop and screen.  We split among the four of us a box of chocolate liquers, the first alcholic "drink" I had had in many months.  

But, the best part was simply being off for much of the day.  No responsibility, no fires to put out, no urgent issues, no staff sections to cross swords with.  It was a lovely day, amidst stress, worry and fear.  

I love Christmas and all it stands for.  But, perhaps no stateside Christmas will approach Christmas in a war zone for its simplicity and purity.  

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 The City of San Antonio is spending $3 million to  make the Riverwalk accessible to wheel chairs.  Title II of the ADA requires that public places be accessible to persons with disabilities.  The Department of Justice supposedly enforces Title II.  The EEOC enforces a separate part of the ADA.  It is long past overdue that the Riverwalk be fully accessible.  But, most sidewalks in the older parts of all US cities are still not accessible.  See DOJ summary.   

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 Five members of a jury "friend" each other during a jury trial.  In another trial, one involving murder, jury members look up key scientific terms on Wikipedia during deliberations.  The jury looked up terms helping them understand how blood settles, an important issue in the murder trial.  Court personnel found the results of the research after the trial was complete.  Of course, a jury is supposed to only consider the facts and information presented during trial.  They are not supposed to do their own research.  Both instances occurred in Maryland.  That state is now considering adding jury instructions to specifically prohibit online research by jury members.  

In the Facebook incident, five jury members formed a clique, allegedly upsetting the jury dynamics.  That is a problem since most jury instructions tell the jury they cannot discuss the case until both sides have rested and concluded their presentation of evidence.  One of the five apparently heard suggestions on how the trial should turn out from an outside observer.  One of the parties to the trial is seeking a new trial.  So, yes, forming a clique too early would be a problem.  See ABA Bar Journal for more info. 

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 The Ninth Circuit joins the Seventh Circuit in finding that an employee suing for retaliation under the Americans with Disabilities Act is not entitled to compensatory damages or punitive damages.  Alvarado v. Cajun Operating Co., No. 08-15549 (9th Cir. 12/11/09).  The court also ruled that a jury is not available.  See brief discussion.  Mike Maslanka agrees with the result.  

In fact, the Southern District of Texas reached the same result in a different case at about the same time: Miles-Hickman v. David Powers Homes, 613 F.Supp. 872 (S.D.Tex. 2009).  

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 You work for a company.  Things are going well.  But, the company still has not paid you everything you are entitled to under your compensation agreement.  You become unhappy.  A start-up lures you away.  The start-up competes directly with your old company.  You had signed a non-compete agreement with the old company.  But, you think why should you honor the non-compete when the company did not honor your compensation agreement.  In caselaw, we call that the "doctrine of unclean hands."  One cannot seek equity without first being equitable itself.  One cannot come to court seeking equitable relief if that person does not himself have clean hands.  So, you think, the employer cannot come to court seeking equity when the employer itself has not been equitable.  

Well, you, the employee, lose this argument.  You lose at least before the San Antonio Court of Appeals in Central Texas Orthopedic Products, Inc. v. Espinoza.  The Court found that since the breach did not grow out of the agreement which is the subject of the suit, the doctrine of unclean hands does not apply.  They are separate transactions, found the court.  That is, the failure to pay under the terms of the compensation agreement was a separate transaction from the non-compete agreement.  One agreement was signed in 2003, while the other was signed in 2007.  As Russ Cawyer says, this decision continues Texas' trend toward supporting non-compete agreements.    

See Workplace Fairness for a nice summary of non-compete agreements.  

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 The Texas Supreme Court has once again overturned a jury verdict and a successful appeal by a plaintiff.  In Whirlpool, Inc. v. Camacho, Texas' highest civil court found deficient the testimony of an expert who testified that a fire was caused by a faulty dryer.  The fire took the life of teenage Joab Camacho and consumed the Camacho mobile home.  

In the Court's decision, it explained in great detail how the dryer works and how the heat is vented, even providing a cross-section of a dryer vent.  The Court faults the Plaintiff's expert for not conducting different tests that might help explain the cause of the fire.  It is never a good sign when an appellate decision parses evidence so carefully.  The court comes very close to weighing the evidence.  Weighing evidence, of course, should the province of the jury, not a group of judges. 

The high court unfortunately gives very little weight to the jury findings.  There is supposed to be a presumption in favor of jury findings.  Any expert goes through tremendous scrutiny both at trial and at the intermediate appellate court.  The Supreme Court disregards all that scrutiny in overturning this decision. 

Former Mayor Phil Hardberger wrote a nice law review article on the corporate friendly Texas Supreme Court eleven years ago.  He was still an appellate judge at the time.  This recent Texas Supreme Court decision continues that unfortunate trend supporting big business at the expense of families and individuals.  

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 Once again, Mike Maslanka writes a nice post, summarizing a complicated area of law.  See his post summarizing the law on non-competes.  Look at his summary near the end.  You can successfully attack a non-compete agreement on various theories: 1) the information provided to the employee was not truly confidential, 2) the confidential information was provided too late to be of any real benefit to the employee and it could not serve as consideration, 3) and the usual: the non-compete was too broad in geographical location or length of the agreement. 

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 Gene Lee writes a good post about whether workers should be paid for checking email after hours.  More and more employees are being required to check their email after work.  Accoding to a 2008 Pew internet survey,  50% of workers said they check their work email on weekends.  20% of workers said they were required to check work email and respond to it after hours.  Half of Blackberry and PDA users said they were required to check and respond to work related email after hours.  As Gene notes in his post, debate swirls around whether employees should be paid for this time.  

In July, 2009, several T-Mobile employees sued for this uncompensated time.  It is hard to understand how the employer would not be liable for this time.  Anything a worker does at the employer's request is compensable time.  The real issue is likely to be how liable the employer will be.  The employer should not be liable for 24/7 minimum wage coverage.  But, if the employer requires a particular duty or task, then that task must be compensated.  That is what the Fair Labor Standards Act is all about.  

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 What happens when an employee complains about sex harassment and the employer does nothing?  Well, in the case of Duch v. Jakubek, they get sued and lose.  In a decision coming out of the federal Second Circuit Court of Appeals (the circuit covering New York, Connecticut and Vermont), a female employee complained about sex harassment by a co-worker.  She complained when she was assigned to work with that harasser.  She asked for a schedule change to avoid the man.  The manager asked what happened.  She said she did not want to talk about it.  The manager then allegdly responded that he did not want to know what happened.  He dropped the matter.  The female employee then complained to the EEO officer, who was told not to report the harassment.  There was no follow-up.  The plaintiff suffered emotionally.  A new EEO officer came on the scene who did an investigation. 

The Second Circuit found this avenue to report EEO issues was adequate, even if the personnel were not well trained.  But, the court also found the employer may still be liable if the it "knew, or in the exercise of reasonable care should have known, about the harassment yet failed to take appropriate action."  

Thus, the critical piece for the court was what the supervisor did or did not do.  The supervisor knew or should have known something had occurred, but did nothing.  He stuck his head in the sand like an ostrich.  The court cautioned that it was not creating a new standard of liability when an employee refuses or fails to report harassment.  "We merely recognize that, under the existing law of this Circuit, when an employee's complaint raises the specter of sexual harassment, a supervisor's purposeful ignorance of the nature of the problem - as [the supervisor here is] alleged to have displayed - will not shield an employer from liability under Title VII."  

Thus, the grant of summary judgment was not proper and the matter would proceed to trial.  Because the employer's investigation did not start for another three months, the employer would be liable for the harassment.  

So, yes, an employee refusing to report harassment is one issue.  But, here there was an additional issue.  The act of refusing to disclose some information may put an employer on notice that further investigation is warranted, the court found.  

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 Aaron Ramirez, a plaintiff employment lawyer in Dallas, writes about the "woman-hating" Dallas Fire Department.  The "D" magazine published an article with that just that title.  He wrote about the sex harassment issues again at this post.  I hope the Dallas experience is unique.  I represented a female victim of sex harassment at the San Antonio Fire Department several years ago and was pleasantly surprised to find that the SAFD actually was pretty anxious to hire her.  They were not guilty of any sex discrimination, at all.  The actual harasser was another employer.  But, of course, having served in the Army Reserve and National Guard for some 25 years, I have some first-hand experience with how some women are treated in male dominated work places.  

It will end at some point, but it may take a few lawsuits before real change comes.....

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 For the first time in months, the national unemployment rate has dropped.  Down to a "mere" 10%........

But, as the Workplace Prof mentions, that does not mean it will continue to decrease.  In fact, it might well increase before it decreases.  Since, once things start looking better, folks who had given up will re-enter the workforce and start looking for work.  When they re-enter the workforce, they will be counted as unemployed looking for work. 

The good news for San Antonio is that our economy continues to perform well.  San Antonio ranks second in the country for employment opportunities in the next economic quarter.  In October, we had an unemployment rate of only 7%.  I know people are still hurting, because that is who calls me.  But, we are doing much better than other parts of the country. 

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 Applying for unemployment benefits is a bit of a mystery, even to those of us who do employment law.   Fortunately, TWC has some pretty good information online to explain the process.  In general, you get unemployment benefits if you lose a job through no fault of yours.  So, if you have committed some work infraction or ignored attempts to improve your work performance, then you will not receive benefits.  If an employer will claim you have performed poorly, it is important for the employer to document the alleged poor performance.  Many hearing officers will not credit a claim of work infractions or poor performance if the employer cannot document these issues with contemporary written warnings of some sort.  Even if the employer can document the alleged poor performance, the employer must be able to prove that the employee had knowledge of these written warnings.  

But, even if the employee can pass the alleged poor performance hurdle, s/he must still have wages with TWC payments for the prior two calendar quarters.  And, of course, in order to receive benefits, the employee must attest that s/he is applying for jobs every week.  

Most issues I see involve requests for accommodation that were never answered; persons missing work due to illness; or issues regarding higher standards of work that were not communicated to the employee.  In one case, at the hearing, it turned out that the employer did not believe they had fired the employee!   Since it was not clear the employer had actually terminated the employee, the employee lost her appeal and her benefits.  

So, for those of you filing for unemployment or who think you will soon be filing for unemployment benefits, be sure to:

1. Make certain you have actually been terminated;
2. Find out the stated reason for your termination - get the reason(s) in writing as much as possible; 
3. Provide evidence to TWC (and to the employer), such as doctor's notes prior to the hearing; 
4. Notify TWC regarding any key witnesses - provide a phone number for the witness to TWC f(and to the employer); and
5. Review the TWC website - the employee and employer info. 

Note this TWC page.  It is meant for employers, but much of it applies equally well to employees.  It has some good info regarding do's and don't's at the hearing itself. 

Hearings, these days, are almost always over the phone.  Most hearings do not emphasize the rules of evidence or rules of civil procedure.  So, an applicant for benefits does not necessarily need a lawyer.  But, if you are not sure if you need a lawyer, contact an employment lawyer to at least discuss your case before the hearing. 

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 Enforcement of civil rights laws fell significantly during the Bush administration, according to a GAO report, as reported in the NY Times.  The non-partisan Government Accountability Office reports, for example, that the DOJ Civil Rights Division had filed 11 cases of sex or race harassment per year during the Clinton years, but only 6 per year during the Bush years.  Political appointees rejected the recommendations of career CRD lawyers to proceed further with cases for no apparent reason, according to the report.  The GAO audit was based on records from 2001-2007.  

The reduction in suits filed is all the more remarkable since EEOC filings have been rising each year for the past 20 years or more.  And, of course, we now know that the Bush administration often hired DOJ lawyers more for their political correctness than for their competence in civil rights. 

The Civil Rights Division is responsible for enforcing the civil rights statutes against state and local governments.  Whereas, the EEOC enforces the employment discrimination statutes against private employers.  Charges against state and local governments are still filed with the EEOC.  When the EEOC investigates a charge against state and local governments and finds evidence of discrimination, the EEOC refers the charge to the CRD for review.  

So, it is very remarkable that that when staff lawyers wanted to investigate a report of voter intimidation by a state government, the supervisor told them they could not contact the state government.  Say what?  That makes no sense.  I cannot imagine investigating harassment by a state government without actually talking to the state government.  That would be like investigating a murder without actually speaking with any of the murder suspects. 

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 We can count on Oprah for many things.  One is a recent explanation of the rights for new mothers under the Family Medical Leave Act.  Thanks, Oprah.  

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 So, you're diagnosed with depression.  It will not get better.  You are unemployed for a year and a half.  Your problems mount.  You live in Canada, so you see see gray skies everyday.  Then, your doctor tells you to get away to some sunny climate for a brief time.  You take a trip, take some photos and then you post them on Facebook.  Oh oh.  An insurance company is paying you what are described as sick leave payments.  The insurance company sees those pictures and concludes your depression is over and cuts off your benefits.  That is what happened to one former IBM employee according to Delaware Employment Law Blog.  

The former employee says she is happy in the moment but that before and after she continues to suffer from Depression.  Her lawyer has asked for a new psychiatric evaluation.  Good idea......

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 School employee loses job because he sent an email containing a one word obscenity to a blog.  See ABA article.  When the employee was confronted with the email, he resigned.  Another example of someone who publishes something controversial on the internet under the mistaken belief no one will ever see it. 

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