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

 We all have different memories of Memorial Day.  Some remember hot dogs and trips to the lake.  Some remember a grandfather or uncle who served in World War II or Viet Nam.  I remember 1SGT Saenz.  We all met at Ft. Jackson on March 13, 2005.  We numbered a little over a hundred members of the  Individual Ready Reserve.  We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Saenz had a huge laugh and a booming voice.  He smiled and laughed a lot.  

Those first few days, some Reservists were angry about being called up. Some were happy to serve from the get-go.  MSGT Saenz seemed pretty happy to be where he was, preparing for responsibility in a war zone.  Later, as I learned, he performed very well and inspired his soldiers.  

He died on the dusty streets of Baghdad.  We were all leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED.  He was out on a convoy training members of the incoming unit.  Some of his regular team members were not with him on that run. He died doing what he did very well: serving others. 

We should all serve our country half as well as 1SGT Saenz.  Rest easy, Top.  You did well. 

http://www.arlingtoncemetery.net/cnsaenz.htm

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A frequent issue arises concerning the right of an employer to deduct debts from an employee's paycheck.  Texas Workforce Commission recognizes three occasions when an employer may make such deductions: 1) in response to an order from a competent court, such as for child support; 2) state or federally mandated withholdings; and 3) when authorized in writing by the employee.  See TWC info.  

So, for example, when the employee owes payments on a loan to the employer, the employer may not deduct those payments from the paycheck.  Even if the employer has a signed loan agreement, the employer may not deduct those payments without written authorization from the employee.  

But, the other shoe is that TWC will probably do nothing more than send letters to the employer finding them at fault.  I have personally never heard of TWC taking stronger steps than sending letters to the miscreant employer. 

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My colleague in California, Gene Lee, has written a couple of nice entries about how to read an employment contract.  See this post for part 1 of his series on reading contracts.  Note the information regarding which state law governs the contract.  In today's business world, employment contracts frequently involve two, three states or more.  It can make a huge difference regarding which state law governs.  Just because you are hired in Texas for a Texas employer does not mean Texas will law will govern.  

See Gene's second post for Part 2 of how to read an employment contract.  Note his final advice: a contract helps, but a contract is no substitute for having a lawyer in your corner.  I know many employees essentially draft their own contract.  A self-written or borrowed contract is better than no contract.  But, the best plan is to consult with a trained employment lawyer whenever you sign or draft a contract.  

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A reader calls me about a friend.  He called me in response to my entry about drug testing and zero tolerance policies.  My entry actually was based in part on another blog entry by Mike Maslanka, a noted employer side attorney.  Mike's point and mine was that an employer should be prepared to allow exceptions to its zero tolerance policy on drug use.  The caller mentioned his friend.  

The caller's friend worked at a plant in a northern state for 40 months.  He had some foot problem, so he tried a pain killer used by his wife.  He took one pill.  Three days later, the plant had an unannounced drug test and the friend tested positive for some controlled substance.  He presented notes from his doctor and his wife's doctor.  But, still, despite 40 months without a blemish, he was fired.  

Does that make sense?  The caller did not think so.  The caller himself was a hospital administrator for many years.  He terminated people when he had to. But, he did allow exceptions when he thought it proper.  The goal in every business is to  hire and retain the best people.  Once an employee is trained, he has "extra" value.  When I was a National Guard Company Commander, I was very interested in retaining the best soldiers.  Even an average soldier had considerable value once he had attended a few Army schools.  I forget the exact amount, but it took tens of thousands of dollars to train a solider through the rank of Staff Sergeant.  Staff Sergeant would be equivalent to a section lead in the civilian sector. 

I cannot imagine terminating a 40 month employee without a blemish.  Could they not have simply put him on probation?  Was there no time for a final warning?  It does appear to me that at least one plant in some northern state lacks leadership. 

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 The latest numbers tell us that unemployment rate has risen nationally to 9.9%.  But, anaylysts say, that is a good thing.  See report.  Since, the rise means more people have returned to looking for jobs due to the rise in new jobs.  

Texas' unemployment rate has rose slightly from 8.2% to 8.3.  See report.  That rise probably means again that with the growth in new jobs, more people have returned to the job search.  The state added 32,500 jobs in April.   San Antonio's rate of unemployment remained steady at 7.3%.  

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 Houston added gender identity and sexual orientation as protected classes to its anti-discrimination policies.  The policy prohibits discrimination, retaliation or harassment based on gender identity or sexual orientation in contracting, the City's hiring practices and in City vending activities.  Houston, of course, just recently elected its first openly gay mayor.  See report.  

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 LCPL Phillip Clark was killed in Afghanistan.  His wife, Ashton Clark, a 2009 Clark High School graduate, San Antonio, said Phillip was the life of the party.  She said they planned to buy a home and have a baby when he returned.  See report.  She and her husband were married just before he left for Afghanistan. 

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 The jury returned an award of punitive damages in the amount of $250 million against Novartis Pharmaceuticals.  See report.  I discussed this case the other day.  This is the case where a manager told a female applicant, apparently when discussing flex time, "First comes love, then comes marriage, then comes flex time and a baby carriage."  According to this report, the entire class of 5600 women will share the punitive damage award.  

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 Progressive discipline.  I wish I had a nickel for every potential client who told me the employer did not follow the progressive discipline policy and, instead, fired the potential client after only one (or none) write-ups.  Well, as I have mentioned elsewhere on this blog, the employee handbooks are not binding on the employer.  Many handbooks provide that an employee will be disciplined in writing three times before termination.  

But, the reader should keep in mind the result in Berube v. Great Atlantic & Pacific Co. (2d Cir. 2009).    In this case, the second circuit overturned summary judgment for the employer.  The court found that evidence that the employer did not follow its progressive discipline policy in regard to an older worker showed there was enough evidence to justify a jury trial.  The key was that the employer could not explain why it deviated from its progressive discipline in the case of this one older worker.   

The older employee pointed to other employees who were charged with offenses of "comparable seriousness," yet who were not terminated.  The court found that when the employee compared his discipline to that of other workers, the worker need not show identical supervisors or even identical infractions.   It was enough to show that the infractions were of equal seriousness.  The alleged infractions should be of "comparable seriousness," said the court.  

So, the case will proceed to trial.  As one commentator pointed out, employers need to apply their progressive discipline consistently across the board.  One can debate the utility of progressive discipline policies.  But, if the employer uses them, the employer needs to make sure they are applied evenly. 

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A case arising out of New York demonstrates what not to say when a woman applies for a job.  One male manager reportedly responded in an interview with a female applicant, "First comes love, then comes marriage, then comes flex time and a baby carriage."  This comment and others helped provide good evidence for a class action sex discrimination lawsuit against Novartis Pharmaceuticals.  The class includes some 5600 women.  See NY Times report.   

Delaware Employment Law Blog is generally defense minded, but they understand, as we all should, that forming presumptions about gender roles based on caring for a family member is sex discrimination.  There is a line of cases alleging so-called Family Caregiver Responsibility discrimination. Such duties often fall on a woman.  This is a growing area of litigation.  

The May, 2010 issue of the ABA Bar Journal says suits alleging bias asgainst workers caring for children or parents have increased 400% in the last decade.  Employees prevail about half the time, which is much higher than other types of discrimination cases.  A recent study on this topic found that in caregiver cases, 67% were related to pregnancy and maternity leave; 9.6% were related to elder care; 7% concerned sick children; 4% were related to caring for ill spouses and 2.4% were related to caring for a family member with a disability.  88% of such cases were filed by women.  

On May 17, 2010, the jury returned a verdict in favor the women plaintiffs.  See report.  The jury awarded several million dollars in compensatory damages.  The jury has yet to decide punitive damages, but indicated that it would assess punitive damages.    Novartis, which has been included in one of the top 100 places for women to work may lose its ranking.....

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 Ronda Templeton, columnist with the San Antonio express-News reports on some do's and don'ts she gleaned from HR representatives.  For example, if you have been out of work for a while, HR representatives would like to hear that you have been doing volunteer or part-time work. It is not helpful to volunteer that you are applying for a particular job because you could not find a job in your profession.  Indications that you might be "settling" never help. 

Don't ask in an urgent tone if overtime will be expected.  Don't ask too soon in the interview about pay.  Don't ask to too soon about perks,  Ms. Templeton reports that a HR friend of hers rejected one candidate because she asked if she would rate an office and an assistant.  

Good tips.  Unfortunately, too many folks are still out of work.  A potential client came to see me who appeared to have very strong qualifications for a variety of management jobs.  He was willing to accept any job at this point.  Yet, after two years, he remains unemployed.  Over the years, I have had many unemployed clients.  That happens when you represent people fired through no fault of theirs.  After a person's mid-40's, it usually takes a year or more to find a decent job.  It can happen to the best of us.  

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Its an issue that strikes home with me.  Do gays belong in the military?  One law school prof discusses his view, based on the harm sometimes done by the "Don't Ask, Don't Tell" policy.  See discussion.  Having served 28 years in the Army National Guard and Army Reserve, I look at the issue through the prism of my own experience.  I think the real question is why not?  In every unit I was in, we never had enough good soldiers.  I would hate to automatically exclude any soldier until we see how s/he performs.  Soldiering is a subjective profession.  The ability to get along and foster teamwork is crucial.  Many soldiers, straight or gay, cannot hack it.  

The most important trait of a good soldier is simple desire.  They "gotta want it."  I am sure many gay soldiers have done very well in the soldiering business.  As a former company and battalion commander, I would be happy to have any productive soldier, regardless of background.  

Of course, as with any soldier, I would expect that soldier to manage his/her personal issue or background.  But, isn't that what leadership is all about?  Some soldiers, for example, suffer from weight problems.  Weight control and physical conditioning are big issues in the Army.   Many soldiers are discharged every year because they cannot get their weight down to the Army norm. But, if a soldier does successfully manage a weight problem, aren't they a better soldier because of it?  That is what leadership is all about.  

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 Texas has a limited whistleblower protection.  Texas Government Code Sec. 554 protects public employees who report violations of law to the appropriate law enforcement agency.  See statute. The Texas Whistleblower Act provides for a 90 days deadline in which to file suit.  It also requires an employee to first file a grievance if the state or local agency provides for a grievance procedure.  If the employee files a grievance, then the duration of the grievance will toll the statute of limitations (ie, toll the deadline).  

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. 

There is no equivalent statute for private employees.  But, as I wrote earlier, a private employee would be protected if they were required to violate a criminal statute.   

So, if you are a private employer, report your employer for violating some criminal law and get fired, then you have no protection.  If you are a state or local government employee and are fired because you reported your employer for violating some law, then you can file suit.  

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 I have written before on the costs of litigating a discrimination lawsuit.  Connecticut Employment Law blog reports about a case in which the employee obtained as part of her settlement $16,000 in lost pay and $130,000 in attorney's fees.  Note how much higher are the attorney's fees of the employee's lawyer.  $130,000 means the lawyer spent anywhere from 200-500 hours on the case, not unheard of at all.  Typically, employment lawsuits are fought over much more than other sorts of lawsuits.  Lawyers on both sides will invest 200 hours or more in an average employment lawsuit.  

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 A San Antonio Marine was killed in Afghanistan, Helmand Province.  See San Antonio Express-News report.  LCPL Chris Rangel was killed by enemy fire.  He graduated from West Campus High School in 2006.  As a high school student, he displayed a "real quiet sense of leadership," said one.  

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 The Ninth Circuit granted class certification in a lawsuit against Wal-Mart alleging gender based discrimination against some 2 million women.  See report.  It was a close 6-5 decision at the court.  The Ninth Circuit heard the arguments en banc, which means the that the Ninth Circuit issued an initial decision.  One of the parties did not like the initial decision, so they asked  for the entire Ninth Circuit (en banc) to hear the case.  The en banc court then granted the class certification. 

It is a big win for employees.  Wal-Mart commits its share of violations of employment statutes.  The class will be for current and former female employees who have been passed over for promotion. 

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 The state appeals court in Austin looks at what is sexual harassment and what is not.  Sex harassment refers to the situation in which a woman (or a man) is harassed without explicit requirement of a sexual relationship.  Sex harassment simply refers to harassment short of an explicit  relationship.  in Twigland Fashions, Ltd. v. Miller, the state Third Court of Appeals looked at a 49 day period in which a regional manager focused his attentions on a female store manager.  He hugged her twice - two "full body hugs." He told he loved her.  He told her she had to kiss him whenever she made a mistake.  Mike Mslanka discusses the case in his recent post.  The supervisor came up behind the female employee and wrapped his arms around her and pressed his body against hers.  She was fired after she spent two weeks avoiding the regional manager. 

But, the employee also testified that she could perform her work just fine when the regional manager was gone.  He only came to the store once or twice a month.  To constitute sexual harassment under Title VII or Texas Labor Code Art. 21, the harassment must rise to the level such that it affects the terms and conditions of her employment.  The court said the harassment must be so extreme and abusive that it deprives the victim of an equal opportunity in the workplace.  The court found that since the employee could perform her tasks well in the absence of the male supervisor, then her work conditions were not affected.  

Mike Maslanka describes this court decision in positive terms.  Of course, I represent employees mostly and find the decision troubling.  If the woman must fear every visit from this supervisor, are not her working conditions affected?  If she must work so hard to avoid him when he is present in the store, are not her working conditions affected?  Mike does not mention that the victim, a store manager who had been promoted by the regional manager, believed that the supervisor was suggesting that she cooperate with him if she wanted continued promotions.  See court decision. 

As Mike points out, this standard should be the same standard for racial victims, too.  He is right.  It should be.  But, we know that the standard used in this Miller case is not the same standard.  In a race or national origin case, it would be enough that the supervisor made disparaging comments about a man's race or national origin.  It would be enough if the supervisor suggested a deal with an employee, cooperate with him outside the office and promotions would continue.  But, because this case is sexual harassment, these facts are not enough.  The Miller court is applying a higher standard.  If this were not a sex harassment case, most courts would find the working conditions have been adversely affected in this work environment.  

The jury apparently agreed with me.  In this case, the appeals court took away the jury verdict.  As I have mentioned before, many juries understand the realities of the workplace better than many judges. 

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Department of Labor has released a Disability Nondiscrimination Law Adviser.  Once the reader answers some general questions, the adviser will provide some a customized list of statutes that apply to the reader's particular business and the requirements of those statutes.  See DOL website.  The stated purpose of the Adviser is to allow employers to identify which disability nondiscrimination laws apply to their business.  

This Adviser is one in a series of electronic advisers regarding various employment statutes. 

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You may have heard about the school district in California that let some 2,000 students take home school-issued laptops,  The laptops had webcams and a software program, Theft Tracker.  Theft Tracker would take pictures with the web cam every 15 minutes, if the shool officials activated the program.  Many laptops were reported stolen.  So, the webcams were activated in many laptops. The program enabled the law enforcement authroities to recover six laptops.  But, some laptops were reported stolen but later found by the student.  Yet, the Theft Tracker was never deactivated.  The laptops overall took some 56,000 pictures.  About two-thirds of the pictures were related to the six actually stolen laptops.  The rest of the pictures were taken from laptops that had not been stolen. School officials simply neglected to deactivate the theft tracker software.  So, there were many pictures.

The parents were not told about the software.  They have even pretty upset, reports Workplace Privacy Counsel.  The school committed several errors, reports Workplace Privacy:

• The school failed to issue written policies regarding the use of Theft Tracker
• Parents and students were not informed and were not required to consent to its use

As Workplace Privacy Counsel explains, the same issues would apply to the workplace.  Any employer seeking to use similar technology would need to issue written policies regarding the technology and obtain consent from its employees.  

Otherwise, any employer would face what the California school district is facing: at least one lawsuit, so far regarding invasion of privacy; an FBI investigation; Congressional hearings; and one proposal by Sen. Specter to extend the Federal Wiretap Act to video surveillance.  

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 Many employers need to develop and fine tune their social media policies.  See several sets of policies and guidelines at this website from Delaware Employment Law.  Connecticut Employment Lawyer presents some helpful guidelines at this post.  

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 In Texas, an employee does not have a right to a copy of one's personnel file once the employee leaves a job.  It is not that there is a law prohibiting obtaining a copy.  There simply is not a law providing one way or the other.  Texas is an at-will state.  So, if there is no statute, then private employers can do as they please.  

But, if the employee worked for a state, county or local government, the employee could submit a Public Information request pursuant to Texas Government Code Chapter 552.  The Public Information Act is the state equivalent of the Freedom of Information Act.  If the former state, county or local government employee submits a Public Information Act request, then he/she can obtain a copy of his/her personnel file. 

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 Judge Keller's trouble continue.  She still has a hearing in June regarding the execution and attempted appeal of Michael Richard.  And, now she has been assessed a fine of $100,000 for issues regarding her financial disclosure form.  See report.  The Texas Ethics Commission has levied a $100,000 civil penalty because she failed to disclose all of the sources of her income in 2007 and 2008.  She failed to disclose her ownership in $2.9 million dollars worth of property.  

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