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

 This issue arises every so often.  An employee has a serious illness and is warned by her doctor that stress at work worsens the illness.  Is that a disability?  Not according to caselaw under the old (ie, pre-amendment) Americans with Disabilities Act.  In one case, the client was warned that her hypertension would worsen if her stress was not ameliorated.  She could suffer a severe heart attack, the note warned.  The stress was largely from work.  So, the doctor gave her a note to give to her employer with suggestions on how to reduce stress at work.  The employer ignored the note.  The employee filed suit and lost on summary judgment.  Caselaw interpreting the old ADA simply does not provide protection for a potential disability.  

A severe heart attack, said the judge, was a not a disability, yet.  Hypertension did not yet affect her daily life, said the court.   So far, the employee functions normally, other than loss of sleep.  So, she lost her lawsuit.

Another employee suffers from a rare genetic defect causing her spinal issues.  She has herniations in her neck and spine.  She has to stay home every so often and take medication.  She misses work, apparently without warning and her employer complains.  They start referring to her as the "absent" employee.  The stress causes her spine to worsen, causing even more time off.  Under the new ADA, that condition might constitute a disability.  

We had a saying when I served in Iraq, "nothing is easy in Iraq."  Well, nothing is easy in employment law. 

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 A reader writes to tell me that the unfortunate decision in Whirlpool, Inc. v Camacho was marred by the fact that the winning law firm had given $67,500 to three members of the Texas Supreme Court.  I previously wrote about this case earlier.  Among the many things wrong with that decision is that the Texas Supreme Court overturned a jury decision based on lack of evidence.  Jury decisions are supposed to be accorded great deference.  The court's decision over-analyzes and parses the evidence almost as if it was trying to reach a certain result.  The court went to great lengths to justify its decision.  

As the reader points out, it simply looks bad that the winning defense firm contributed over $50,000 to three of the justices who decided the case.  Judges are supposed to avoid even the appearance of impropriety.  Yet, we in Texas and other states tolerate campaign contributions which stain our courts with the appearance of impropriety.  The defense firm, Haynes & Boone, contributed $67,500 to three Texas Supreme Court justices according to Texans for Public Justice.  This appears to be news to my reader.  But, it is not news to those of us who practice in Texas courts on a regular basis. 

Many law firms contribute tens of thousands of dollars to Texas Supreme Court candidates.  Yet, it is very rare for a judge to recuse him/herself due to these contributions.  Judges would certainly recuse themselves if they had stock in one of the parties, or some other financial interest in one of the parties.  But, for some reason, we have never viewed campaign contribution as a financial interest. Surely, tens of thousands of dollars constitutes a financial interest which presents the appearance of impropriety.  

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 Studies show that jurors prefer parties who dress up.  See report.  The study looks at juror preferences regarding criminal defendants in court.  But, the same reasoning aplies to parties to a civil lawsuit. 

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 This is what is wrong with federal judges when it comes to employment law.  In a recent deicison, the Fifth Circuit applied the discredited "stray remarks doctrine."  Of course, a defense employment lawyer notes the application approvingly.  See post.  In Jackson v. Cal-Western Packaging Corporation, the Fifth Circuit Court of Appeals (federal) found a remark by management was not sufficiently related to the adverse personnel action to be admissible. Nonsense.  The manager had referred to the Plaintiff Jackson a year ealier as "an old, grey-haired fart."  So, a year later, when he was fired for inconsistent reasons, he claimed age discrimination.  The remark shows clear age animus.  Under normal circumstances, the remark would serve as direct evidence of age discriminatory motive.  The burden would then move to the employer to show they would have fired the employee even without the age discriminatory motivation.  That would be a dificult burden to meet.  So, this discussion has real import.

 The employee was 69 years old when he was terminated.  He was replaced by a 42 year old employee.  Jackson filed suit.  The district court granted summary judgment, finding insufficient issues of fact to justify a trial by jury.  Jackson was accused of sex harassment, which he denied.  He claimed younger workers accused of sex harassment were not fired. 

The Fifth Circuit's reasoning is wrong on several levels.  First, it is simply not sensical to expect that an ageist remark from a year earlier would have no relevance at all to the decision to terminate. That simply does not reflect the reality most of us face in our everyday work lives.  So, yes, this issue certainly should have gone to a jury.

Second, this reasoning by the Fifth Circuit represents the court's attempt to hang onto a discredited doctrine.  The stray remark doctrine was overturned in another Fifth Circuit case from 2005.  The doctrine is referred to as the "stray remark doctrine" because the remark is deemed so remote in time, and so irrelevant that is is simply a stray remark (as if stray remarks have no relevance).  

In 2005, the Fifth Circuit's use of the stray remark doctrine was expressly overturned by the US Supreme Court in Reeves v. Sanderson Plumbing Products, 530 US 133, 151-152 (US 2005).  In Reeves, the employee was described as "so old he must have come over on the Mayflower."  The Fifth Circuit in that case had disregarded the statements saying they were not made in the context of Reeves' termination.  The Supreme Court, however, found the court of appeals impermissibly substituted its judgment for that of the jury.  That is, the Supreme Court found the Fifth Circuit evaluated the evidence when it should have left that function to the jury.  The Supreme Court ruled that the jury should decide if the remark was too remote in time to be relevant. 

So, this decision in Jackson is the Fifth Circuit's attempt to ignore Supreme Court precedent.   Much to the detriment of employees who have to get by inn the real world.  I have discussed this before. Some judges simply have little experience in the real world.  The workplace can be venal, small and trivial.  The life experiences of a judge do matter. 

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 Texas law on non-compete agreements is stricter than many states.  In Texas, the non-compete can be enforceable only if the employer provides some sort of confidential information in exchange for the non-compete agreement.  Typically, the employer provides some trade secret or other proprietary information.  Mike Maslanka pens another excellent post and discusses the state of non-compete law in Texas.  He discusses the case of Marsh USA Inc, Et Al v. Cook.  The lower court of appeals found that since no confidential information passed from employer to employee, then the non-compete signed by Rex Cook is not valid.  Marsh argues that the mere exchange of money serves to make the non-compete binding.  As Mike explains, the arguments are cloaked in legal jargon.  But, in reality, they reflect core Texas values, such as supporting individual entrepreneurs versus securing the fruits of hard-won business success. 

The Texas Supreme Court has accepted the case for appeal.  If Marsh wins, then non-compete agreements will become much more common,as my friend Chris McKinney notes.  

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 I wrote previously about a San Antonio law firm that refused to provide documents requested by the EEOC.   The EEOC even filed suit in federal court to get those documents.  Well, the Malaise law firm thought better about it and provided the requested documents, after all.  Russ Cawyer reports that the EEOC moved to dismiss its motion when the firm did later provide the documents.  

As I mentioned earlier, it is hard to understand how the law firm can claim privacy concerns when all information and documents acquired by the EEOC are treated as confidential. Indeed, it is likely now that the EEOC will view those documents with some suspicion.  The employer may have made their position worse with this resistance. 

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 The Fourth Circuit Court of Appeals (federal court) covers the Carolinas, Virginia, Maryland and West Virginia.  The Fourth Circuit and the Fifth Circuit (Texas, Louisiana and Mississiippi) are the two most conservative courts of appeals in the country.  So, it is news when the Fourtth Circuit overturns summary judgment in favor of the employer.  In this sex harassment case, the Fourth Ciorcuit found in favor of the plaintiff in Merritt v. Old Dominion Freight.  

The Court correctly noted that evidence of the falsity of the employer's explanation alone is sufficient to show discriminatory animus.  That is, evidence that the story was false suffices to show the employer was motivated by discrimination.  The case should go to the jury.  The jury should review that evidence of the employer's story and determine whether they believe that evidence shows discrimination.  

Key evidence included a PAT, a physical ability test, which the employer required Ms. Merritt to take before allowing her to return to work.  Evidence showed that few if any males had been required to take the PAT when they sought to return to work.  The employer could not produce any written policy showing when it even was supposed to require the test.  I think what caught the court's attention was the employer's argument regarding this policy evolved over time during the litigation and the appeal.  "It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape."  Slip opinion, at p. 15.  That is a polite way of saying that the employer did not pull this argument out until the appeal.  

It is never a good thing when a judge notes that a key claim or argument only took final shape on appeal.  That is judge-talk for this defense appears to be less than sincere.  And, the court is right that such lack of sincerity is for the jury to assess, not judges. 

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 The EEOC has found reasonable cause to believe there is overt racial discrimination at a plant in Paris, Texas.  Paris is in deep East Texas, more Southern than Western in its culture.  The EEOC is seeking to conciliate the matter.  See report.  The EEOC found that black workers were routinely subjected to racial slurs, comments and intimidation at a pipe fabrication plant owned by Turner Industries.  Black workers were passed over for promotion and subjected to discipline more harshly than white workers.  The workers provided photos of the notes, the nooses and the graffitti.  Turner Industries claims it cleaned up the graffiti as soon as possible.  Turner Industries has other locations in Texas.  See CNN story.  

If the employer claims it took remedial action, the  the case will likely turn on whether they took strong enough action quickly enough.  Conciliation, as practiced by the EEOC, can proceed quickly.  The last time I went through conciliation, the EEOC proposed settlement terms.  The employer refused and that was it.  Conciliation in my experience can go pretty quickly.  According to the CNN story, management retaliated against white workers who complained.  If that can be shown, then the employer will pay a steep price to conciliate.  

EEOC offices can vary a great deal from area to area, but in my experience, the EEOC is very careful about making direct public claims of discrimination.  If the EEOC makes public a claim of discrimination, they have pretty strong evidence in support. 

Yes, Dorothy, there is still overt discrimination in the world. 

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 Not sure how this happened, but I erred when I reported that San Antonio unemployment was 6.4% for March.  It was actually 7.3% which is still a drop from the previous 7.7% in February.  

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 The workers at the Carlsberg brewery in Copenhagen have gone on strike.  Apparently, management reduced the number of free beers the workers can have every day.  That's right.  The workers receive free beer during the work day.  See report.  How is that for a benefit of employment? 

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 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell's requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

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 The Americans with Disabilities Act and Title VII do not apply to churches or religious institutions.  But, what happens when the church operates a secular activity, such as a school?  It depends.  The church can require that teachers conform to particular church doctrine.  As this decision explains, however, much depends on whether the teacher's duties are ministerial, like a minister, or secular.  See EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School.  At the Hosanna school, they had what they referred to as "called" teachers.  Called teachers were expected to perform some 45 minutes of religious instruction out of a seven hour work day.  Called teachers were full-time.  The contract teachers were not always full-time.   The Sixth Circuit Court of Appeals (federal court) found the 45 minutes was too little time to qualify for the ministerial exception to the ADA.  

The plaintiff was a teacher ho returned to work from leave related to her disability.  The school then fired her when she  threatened to take legal action.  This alleged retaliation, held the Sixth Circuit, was not barred by the ministerial exception.  The teacher, even at a religious school, had the right to protection for her anti-discriminatory activity.  

What probably made things difficult for the school was that they had "called" teachers and contract teachers.  Called teachers had to conform to church doctrine, while contract teachers did not.  Yet, their duties were virtually identical.  Both taught religious education.  Both types of teachers performed essentially the same duties.  So, the school could not sincerely argue that called teachers performed ministerial duties often enough to fit the ministerial definition.  

As Law Professor points out, the school only attempted at appeal to claim that the teacher was fired for reasons related to church doctrine.  Anytime an argument first appears on appeal, it looks suspicious.  By that point, it was too late, said the court.  A new approach to evidence so late appears less than sincere.  

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 Microsoft commissioned a study which found last December that 70% of hiring managers and job recruiters  rejected at least one job applicant based on information the employer acquired online.  See report.  The survey was posed to managers and recruiters in the US, Germany and the United Kingdom.  Watch those Facebook entries.....

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 Periodically, the Department of Labor issues guidance on interpretation of the regulations and statutes regarding the Fair Labor Standards Act.  The FLSA is the statute hat requires overtime pay and payment of minimum wage.  The DOL has issued an opinion recently stating that it now believes mortgage loan officers are not exempt employees and are, therefore, entitled to overtime pay.  According to one commentator, this new interpretation will apply to employees who work primarily in the employer's place of business and to employees who do not engage in cold-calling, contacting potential customers.  If you think you may have employees who fit these criteria, you should seek guidance regarding changes to be made as soon as possible. 

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 The National Labor Relations Act protects the rights of workers who organize unions.  One thing the employer cannot do during an organization attempt is ask questions of the employees about the organizing activity and threaten the workers with fewer hours and less pay if they do form a union.  That appears to be what the Grand Hyatt corporation did when a worker tried to organize a union.  See San Antonio Express News story.  Now, they have to reinstate the employee and pay lost wages.  This came as a result of a National Labor Relation Board's complaint.  The NLRB does not accept many complaints.  When they do, the employer needs to be ready.  

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 The unemployment rate may be dropping in the San Antonio area, but finding a job is still tough out there.  Ronda Templeton gives some good advice on job hunting in this column from the San Antonio Express-News.  Notice Ms. Templeton's emphasis on using social media sites.  She says be sure to clean up your page on any such sites to remove anything that might keep you from being hired.  

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 It is very unwise to change lawyers in the middle of a lawsuit.  Allen Stanford, the Houston investment counselor who has been charged with fraud, has changed lawyers a couple of times already and is seeking to change lawyers yet again.  His case is criminal, but the same principle applies: a lawyer or a set of lawyers understand nuances about a case that cannot be simply interchanged.  When a lawyer deposes a witness, for example, the lawyer acquires valuable information about a witness' ability to testify.  These observations include much more than just what the witness says in response to a particular question.  When a client changes lawyers, much of those observations are lost.  

Change a lawyer if you must, but be very sure when you do so.  It now looks like Mr. Stanford had differences with his lawyers about trial "strategy."  It better be important strategy to incur the risk of losing so much "institutional" knowledge. 

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 Many employers have zero tolerance for drug testing.  I served in the Army Reserve and Army National Guard for 25 years.  The US Army had a so-called zero tolerance policy for NCO's and officers.  Any Non-Commissioned officer or commissioned officer caught doing drugs in a drug test would be automatically discharged.  If the offender was an enlisted man, he/she would be given the opportunity to perform drug counseling instead of discharge.  

I did not necessarily believe in the policy, but as a Commander, I always enforced it.  I knew that at some point, some otherwise reliable NCO or officer would test positive.  That was my concern.  If the officer or NCO was one of the good ones and they tested positive, the loss would be the Army's.  I am not an expert on drug use, but my perception is that some folks use marijuana occasionally.  

Mike Maslanka notes how a coach for the Texas Rangers tested positive, and tendered his resignation.  But, the GM, Nolan Ryan, refused the resignation.  Mike, a management side lawyer, supports that refusal.  He criticizes zero tolerance policies.  He says these sorts of decisions need to be considered on a case-by-case basis.  Has the employ expressed true remorse, he asks?  Is he an otherwise good performer?  I agree.  A one time mistake, I believed when I was a Commander,  should not deprive the Army of a good NCO, just as true repentance should not cost an employer a good worker.  

A good friend recently tested positive for drug use for a construction company.  He had been there some 20 years.  We can chastise my friend for taking that sort of chance.  But, he was an otherwise very good performer for 20 years plus.  Now, the company is without one of its most experienced hands.  Is the company better off? 

I served in Iraq for 12 months.  I can guarantee that the Army needs all the good NCO's and officers it can find.  There is no greater stress than war.  Good leaders are essential.  We cannot afford to lose any.  Neither can a good company afford to lose a good employee needlessly. 

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Courts have only just started wrestling with the limits of online freedom in the workplace.  A recent decision from the New Jersey Supreme Court provides some guidance.  In the case of Stengart v. Loving Care Agency, the former employee left her job.  She also left behind her employer issued laptop.  On that laptop, she had sent various emails to her lawyer from a private non-work related Yahoo account.  The account was password protected.  But, the employer's experts were able to retrieve the password and review the emails to the lawyer. 

Attorney client communications are, of course, privileged.  The company, Loving Care (or not) had a general policy that employees waived any expectation of privacy when viewing email at work.  But, the policy did not expressly apply to private email accounts and it did not warn employees that their private passwords could be retrieved from a hard drive.   So, the New Jersey Supreme Court found that the employer's policy did not apply to password protected private email relating to lawful matters including attorney-client privileged communication.  The emails  between the employee and her lawyer should have remained private, said the court.  The employer violated her expectation of privacy. 

The employer's law firm did review the emails between the employee and her lawyer.  They notified the plaintiff employee but not for many months.  So, the New Jersey Supreme Court found that the defense firm violated disciplinary rules.  The court referred the defense firm to the lower court for discipline.  Ouch!

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 Part of the recently passed Patient Protection and Affordable Care Act contains an amendment to the Fair Labor Standards Act.  The amendment requires all employers to provide reasonable breaks and a location for women to express milk for their children.  The act supports women who breastfeed their children.  The location must be in a place other than the bathroom. 

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 The national economy added 162,000 jobs in March, but the unemployment rate stayed the same at 9.7%.  That is the largest job gain in three years.  No small achievement for this battered financial picture.  See report.  Meanwhile Texas unemployment for February stayed the same at 8.2%.  San Antonio unemployment improved to 6.4% from the 7.7.  See TWC report.  

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 Facebook is now the third largest country in the world.  That is, if each user of Facebook was a citizen of a country, then that country would be the third largest.  Facebook, Myspace, Linked, the list of social media web sites grows longer each year.  Blogging grows leaps and bounds every year.  Cases in which employers have tried to constrain what its employers write on these sites continues to grow.

Employers have some risk if they try to control what an employee writes.  If an employee posts information about his color, racial background, religion, disability, age or gender and those characteristics then lead to termination at work, the employee may have a right to pursue a discrimination claim.  

Some states, not Texas, have off-duty conduct laws.  Off-duty conduct laws provide that an employee may not be terminated for off-duty conduct that has no effect on the employer.  

An employee might write something online in opposition to discrimination in the workplace.  if the employer then takes some action against that employee, then any resulting adverse personnel action may constitute retaliation.  Retaliation for opposition to discriminatory practices is prohibited by Title VII of the Civil Rights Act of 1964, and all other civil rights statutes. 

If an employee complains online about "terms and conditions" of employment, then the employee is protected by the National Labor Relations Act.  The NLRA was designed to allow unions to form.  Typically unions start with complaints or discussions about workplace conditions.  To qualify, such discussions must be "concerted" and must be for the "mutual aid and protection" of more than one employee.  Concerted activity has always been protected.  But, now it is simply protected in the new online venue. 

That does not mean the employer cannot forbid employees from publicly disparaging their products or the products of competitors.  In one NLRB (National Labor Relations Board) filing, the union started a facebook page.  Sears objected to the extent that the website disparaged Sears products or the products of competitors.  The NLRB essentially agreed. 

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