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

 Halliburton/KBR has dropped its petition for certiorari to the US Supreme Court in the Jamie Leigh Jones case.  See report.    Ms. Jones is the lady who was raped in Iraq by KBR co-workers.  She retutrned to the US to find that she had sgned an arbitration agreement which would have prevented most of her case from going before a jury.  KBR has fought very hard to keep her case in arbitration.  The employer lost on appeal with the Fifth Circuit.  It looks like that decision will now become the final decision.   The Fifth Circuit found that rape was not related to her employment, and, therefore, not properly a part of an arbitration agreement.  Therefore, the rape allegations would go to trial. 

Ms. Jones was gang raped in Iraq and the locked up by company employees.  In withdrawing their petition for certiorari, KBR is effectively withdrawing its request for appeal.   The company was motivated in part by the Franken amendment which prohibits arbitration for companies that do business with the Department of Defense. 

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 We love our email.  But, sometimes, email is our undoing.  Ronda Templeton talks about email and its travails in this San Antonio Express-News article.  Of course, she mentions how wise it is to think before you send any email.  Once sent, it is nearly impossible to bring back an email.

Every employee should also understand that if you use the employer's email server for any email, personal or not personal, then the employer probably has the right to look at that email.  

Note her report that 95% of us check our work related email after hours.  Is that time compensable?  If checking email is required by the employer, then time spent doing so will very likely be compensable. 

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 in  a recent decision, the Fifth Circuit found in favor of the plaintiff, actually overruling a judgment for the employer.  Even more surprising is that in its decision, the Fifth Circuit appears to be construing the available facts in favor of the non-movant, as they should be doing.  See Carmona v. Southwest Airlines.  

In this ADA case decided under the old ADA, the plaintiff claimed a condition known as psoriatic arthritis, which can be quite delibitating.  This particular plaintiff, for example,w as often reduced to crawling at times, because walking was far too painful.  

The court noted that the employer's attorney omitted from a quotation a key clarification: "most of the time."  That is, the plaintiff testified that he could drive, walk, read, take care of himself.  When pressed further, he added,  "most of the time."   That is, he could walk, drive, read, take care of himself most of the time.  The defense attorney omitted the latter response, as many defense attorneys do.  But, this time, the employer's attorney was called on this glaring omission.  As noted above, the defense attorney is supposed to construe the available facts in favor of the non-movant, or plaintiff, when seeking a judgment as matter of law.  All too often, they do just the opposite.  They usually construe the available facts in favor of the movant, or defendant.  So, the Fifth Circuit construed all the available information in favor of the non-movant and found there was enough evidence to allow a jury to hear the case. 

Judgment as a matter of law is a motion where one party claims the other party has no case.  The entire purpose of judgment as a matter of law is to dispense with cases that have no merit.  Why waste the jury's time with obviously flawed cases?  But, when flaws are not obvious, then the jury should hear such cases.  This time, the Fifth Circuit agreed. 

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 Every employee assumes or hopes he will not be fired.  But, if you get fired, you need to understand your COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985) rights.  COBRA is the federal statute which requires an employer to make available to a terminated employee continued health insurance coverage.  The continued coverage comes at a price.  The employee must pay both the employer's portion and the employee's portion.  That means the cost will typically be twice or more what the employee was paying  before the termination.  

 In 2008, Congress enacted legislation subsidizing the costs of COBRA for workers who lost their job due to the Recession.  This legislation applies to persons who lost their jobs due to involuntary termination between Sep. 1, 2008 and Dec. 31, 2009.  See article at Workplace Fairness.  According to Workplace Fairness, the COBRA subsidy begins for health insurance coverage starting March 1, 2009.  

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 Under the Americans with Disabilities Act, it is unlawful to inquire unreasonably into a person's medical background.  Under the ADA prior to the 2009 amendments, a person whose disability was controlled by treatment was not considered disabled.  So, what happens when a person with controlled epilepsy is asked about his medications and then is rejected?  Well, in Harrison v. Benchmark Electronics Huntsville, Inc., the court found that the applicant was entitled to file suit even though, under the pre-amendment ADA, the person was not considered disabled.  

In this decision, the 11th Circuit joined several other circuits (not including the 5th) in finding a private right to sue.  The applicant was a temporray worker for the employer.  The employer frequently hired temp workers permanently.  The employer routinely asked for a drug test as part of the application procedure.  Mr. Harrison tested positive for barbituates, which he took for epilepsy.  The applicant explained the nature of his medication.  The company's medical review officer confirmed the medical requirement of the medicine.  But, without explanation, the employer rejected Mr. Harrison's application.  

Under the old ADA, the EEOC rejected Mr. Harrison's charge, saying he was not disabled.  His epilepsy was controlled by medication.  The employee filed suit.  On appeal, the 11th Circuit Court of Appeals found that a private right to sue was available to persons who are not disabled due to improper medical inquiries.  As Law Professor points out, the utility of this finding may wane as we get further down the road from the 2009 amendments.  This ruling specifically applies to non-disabled persons.  So, the effect could be opposite.  Improper medical inquiries to persons without a disability, controlled or otherwise, may actually continue.  As Law Professor points out, the ruling would apply whenever a person is required to undergo a medical test not related to job skills that would not otherwise be required.  

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 NPR is running a series looking at work-life balance.  In this episode, they look at folks who work from home and how it helped their work-life balance.  

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 The Eastern District of Pennsylvannia, US district court, finds under the old ADA (ie, prior to the Jan 1, 2009 amendments) high blood pressure is not a disability which requires accommodation.  Nmako v. Acme Markets.    The employee had requested accommodation for migraine headaches, emotional stress and high blood pressure.  The physician had told the employee that if he lost weight, worked no more overtime and took a diuretic, then he could manage his high blood pressure.  Under the pre-amendment ADA, therefore, his illness was not a disability.  Because under prior precedent, when treated, his hypertension did not limit his major life activities.  

Now, of course, the 2009 amendment changes this completely.  Now, we look at illnesses under their "un-treated" state.  

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 Why some people cannot get a job: "found ur id on;line and found that u ans evil hr question.  i am struck with a question in interview of "why my grades are so low".  and also cant find an ans where a positive mindset is going to be created in mind of the interviewer. i am a law graduate."  

This was a a question posed to Evil HR lady who writes a blog on Human Resources.  Go to link to see her response.  Evil HR lady actually is pretty friendly.  She provides some sage advice to some young job seeker.  Scroll way down to the bottom to an entry for Feb. 8, 2010.  

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 Yes, racism is still alive and present in dark corners of the country.  Today, we find some sort of racism in a New Jersey Wal-Mart store.  An announcement is made over the intercom telling "all black people" to leave the store, now.  See CBS news report.  

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 It is not often that the EEOC even issues a subpoena to an employer for records.  It is more rare still for the employer to resist that subpoena.  But, local San Antonio law firm, The Malaise law firm is doing just that.  According to Russ Cawyer, an employer attorney who blogs on employment law, the EEOC sought records regarding all employees during a certain time frame.  They would need such information in order to interview witnesses.   Malaise agreed to produce the names of the employees.   But, the employer refused to provide contact information for each employee.  Eventually, the EEOC had to file suit in US district court to enforce its subpoena.  

I would expect this to be tough battle for the Malaise law firm.  EEOC investigative records are confidential.  So, arguing that producing records would violate an employee's right to privacy will have limited effect.  In reviewing the early letters, it appears that Todd Malaise initially represented his firm himself in resisting the EEOC's demands.  There are numerous letters going back and froth between the employer and the EEOC.  Later, the firm hired employment attorneys to resist the subpoena.  

The EEOC always has too many investigations for too few investigators.  If they must spend so much time on one case, that helps explain why they spend so little time on all their other files. 

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 Mike Maslanka, generally a defense lawyer, offers a good point about employee handbooks.  All large employers have them.  They provide concise, easy-to-read rules.  But, employee handbooks generally do not provide a purpose for the rule.  They do not explain why a particular rule is necessary, or even better, why the rule provides a benefit to the employee.  For example, every handbook explains that the employee is at-will and and can quit anytime.  That means, the employer can terminate the employee at any time.  Mike suggests employers explain how that benefits both parties.  One could, for example, insert a sentence explaining that this flexibility allows either party to seize available opportunities.  A handbook could also explain the rules regarding hostile work environment ensure that the best employees are allowed to be productive. 

In the US Army, we called this process "task plus purpose."  Every mission should provide the purpose of a particular mission to a soldier.  If you explain  the purpose of a particular task or mission, you provide that soldier the flexibility to react to changing circumstances.  For example, do not just tell a captain his men must seize a particular objective.  Tell him his troops must secure an objective in support of another attack.  That way, if the objective is secured before the captain gets there, he will know that he should react by supporting the attack in some other way.  This sort of flexibility allows nimble reaction to a fluid situation.  He will not have to wait until he can call the general on the radio to obtain new guidance. 

But, this flexibility also incorporates the Captain into the overall strategy.  He is not just a cog, but an integral part of the plan.  If you bring the Captain and his troops into the overall battle plane, they will treat it as their own plan.  Any employee needs to feel part of the overall strategy.  They need to buy into the overall plan, not just their small part of it.  

But, the disconnect in this scenario is that some employers do not want the employees to feel they have a voice in company strategy.  Some employers believe that in giving employees a voice in how to sell product or how best to fabricate machinery, they may seek a voice in other areas, as well.  If so, that view is short-sighted.  

Americans are generally independent.  We will follow orders or direction but we want to know why. Our military forces for 200 years have always needed some degree of explanation before following direction.  The new generation, the so-called "millenial" generation, seeks this understanding even more so.  An employer who ignores these facets of our national character does so to their detriment.  

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The national unemployment rate remains steady at 9.7% this month.  The state unemployment rate remains steady at 8.2%, still lower than the national rate.  The San Antonio area unemployment rate did increase from 6.9% to 7.7%.  A year ago this month, the San Antonio rate was 6.4%. 

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 My friend Gene Lee wrote a good post about how long discrimination lawsuits can take.  He refers to statistics showing that from start to finish, the average lawsuit will take 22 months.  That sounds about right for the San Antonio area, also.  Here in South Texas, we can file the typical discrimination lawsuit in state or federal court.  The length of litigation time is about the same for either venue. 

As Gene explains, the discovery process will take months, sometimes years.  In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer.  So, as one might expect, employers resist providing evidence whenever possible.  "Discovery" is the process we use to obtain relevant evidence.  Discovery includes written questions and requests for documents.  It also includes depositions.  Discovery is often the heart of the case for both sides in an employment suit. 

Depositions are the biggest cost in any lawsuit.  Gene Lee also put together a nice post about the costs of a lawsuit.  As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.  

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case.  Employers fare very well in appellate court.  So, they have strong incentive to contest any jury wins.  The appeal itself here in South Texas will require another 1-2 years to complete.  If one must appeal to the Texas Supreme Court, that would take significantly longer.  I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling.  Ouch!

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 In Texas employment lawsuits, sometimes both a manager and the company are named in a lawsuit.  In such situations, the employer typically provides a lawyer for the management official.  "Provides" generally means pay for.  Almost always, the same defense lawyer represents both the manager and the company.  But, the manager's interest and the employer's interest are not always the same.  In a recent case, the New Jersey Supreme Court looked at the arrangement used by the employer and found some ethical problems.

The employer told the employee which attorneys they could hire, agreed to pay for them, but said the employer could cease payments at any time.  The company told the employees they could hire their own attorney if they wished.  The matter was criminal.  The state Attorney General was the plaintiff.  The AG's office objected to this arrangement and tried to disqualify the counsel for the employees.

The New Jersey Supreme Court disapproved of the "take it or leave it" nature of the attorney representation plan.  Relying on several ethical rules, common to most states, the court found 1) that in the future, the employee would have the right to pick his/her own lawyer at the employer's expense, 2) that the employer could not stop paying the lawyer without court approval, 3) the counsel could not withdraw without court approval, and 4) specifically held that the employer could not terminate payments simply because the employer did not like the tack the employee and his  counsel were taking.  See In re State Grand Jury.  

Texas has a similar ethical rule to New Jersey's: no one but the client can tell the attorney how or what to do in a litigation.  In some situations, both the company and a lower level manager are named in a lawsuit.  The employer provides the same lawyer for both he company and the manager.  In such situations, who is the client?  Sharing the same lawyer works well for some situations, but not for others.  What happens, for example,  when the company has some liability regarding a policy which the manager faithfully followed?  That is, the company's policy is at fault, but not the manager. Or, what happens if a higher level manager uttered some discriminatory statement about which the lower level manager has personal knowledge?  These are conflict of interest situations.  But, the company's lawyer has strong financial interest not to raise these potential conflicts.  If the company's layer raises these potential issues, he risks losing a valuable client for the law firm. 

When you have a conflict of interest situation, the company's lawyer should quit.  He cannot represent both parties any longer.  If the company then provides a separate lawyer for the lower level manager the company cannot control the tactics employed by that lawyer.  And, relying on this New Jersey decision, the company cannot terminate the lawyer once the representation heads south for the employer.  

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 No one supports frivolous lawsuits.  But, few have done as much to stop supposed frivolous lawsuits as has Bob Perry.  The huge home builder from Houston, Texas has donated tens of millions of dollars to political contests largely to oppose consumer lawsuits.  He funded the SWIF boat for truth campaign against John Kerry.  He helped George Bush become governor of Texas.  His pet issue throughout all these donations has been arbitration.  The Texas Residential Construction Commission was created largely due to his support of key state legislators.  Due in no small part to Bob Perry's largesse, binding arbitration is now a fact of life for most Texans from employees to home buyers to automobile owners.  

One particular lawsuit by one of his home buyers has dragged on for over a decade.  Bob Perry was determined not to let this case go to a jury.  He wanted it to go to arbitration.  It did go to arbitration, where Bob and Jane Cull were awarded $800,000 by the arbitrator.  Yes, some consumers do win in arbitration.  Mr. Perry was not satisfied.  He found a way to make binding arbitration not so binding.  He appealed twice and lost until he came to the Texas Supreme Court.  The Texas Supreme Court is a very friendly venue for large corporations and for Bob Perry.  The Texas Supremes came out for their man.  Bob Perry had donated $21 million to the Texas Supreme Court between 2006 and 2009.  Every member of the court had accepted money from Bob Perry.  Yet, not one member of the Texas Supreme Court recused themselves from his case.  In a close 5-4 decision, the Texas Court disallowed the arbitration award and sent it to trial in 2008.  I am sure this is the only Texas case that has ever gone to arbitration but was overturned on appeal in the past ten years. 

So, yes, Bob and Jane Cull's case then went to a jury, an actual trial in 2010.  The Cull's told the jury how the attic caved in and the foundation heaved and how Bob Perry refused to fix it.  On March 1, 2010, the jury responded.  They awarded the Cull's $58 million, including $44 million in punitive damages.  Bob Perry will surely appeal.  He has already described this jury verdict as "jackpot justice." 

The Cull's originally bought their dream home, their planned retirement home in 1996.   Now, in 2010, with years more for appeals, they will not get their home fixed anytime soon.  But, this "jackpot justice" jury award will surely help them if Bob Perry decides to discuss settlement. 

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 I spoke about depositions in general a couple of weeks ago.  Now, let's talk about employee depositions in a San Antonio employment lawsuit.  The plaintiff employee deposition is critical to success for any employment lawsuit.  The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story.  It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down.  Too many tears will impede a story.  And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part.  Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?"  No one is perfect, so if you answer, "none," you risk appearing dishonest.  If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.  

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours.  It is emotionally draining for every client I have had.  It can get intense.  The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers.  I have had many clients cry either during the deposition itself or during a break.  

Some clients do not hold up, at all.  Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel.  One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday.  if it was Monday, then he had a good retaliation claim.  If it was Tuesday, then he had no retaliation claim.  Why would he say Tuesday?  I may never know, other than he was simply easily lead on cross-examination.  

Employers will often ask the same question two or three times.  The same question.  But, it is an important question.  "State all facts on which you believe you were the victim of discrimination."  If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.  

Another "catch-22" is that nice is important,  Any witness risks offending the jury if the witness is too rude or pushy.  Niceness does count.  But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story.  The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes. 

Cross examination is all about one word answers.  Opposing counsel wants the plaintiff employee to answer yes or no.  But, some questions require explanation.  "Isn't it true you never called in when you were sick?'  Yes, but.....  "Yes, but the employer did not require employees to call in if they were ill more than one day.  We did not have to call in everyday if we were out more than one day."    The explanation fills in a huge gap about why the employee did not call in.  At some point, the employee plaintiff must provide this key fact.  The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.  

So, yes, the plaintiff employee deposition is very important.  

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