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

I live in San Antonio.  My home is perhaps 5 miles from the military's premier burn center at Ft. Sam Houston, Texas.  And, as most readers know, I am an Iraq vet.  So, the article by Scott Stroud regarding the burn unit resonates with me.  See San Antonio Express News story.  It is a moving account written by a captain in the unit.  The medical folks at Ft. Sam endure their own combat stress treating those of us who get injured in the two wars.

It is the nature of the two wars and a reflection of our improved care that we will see many burn victims.  You will see them.  They will have disfigured skin all over their body.  They require constant care for the rest of their lives.  My son recoils when he sees these victims.  But, when I see them, i see brave soldiers.  One young sergeant came to my church there at Ft. Sam most Sundays with his wife and three children.  It is hard to judge age when the skin is so disfigured, but I guessed him to be in late 30's, perhaps a Sergeant First Class.  The children seemed happy, his wife always smiling.  He left the Army after a few months and moved to San Diego.  I am sure he received a disability retirement.  In my eyes, he had no disability.  

Remember our brothers and sisters who have suffered horribly.  Be respectful when you see a man or woman with disfigured skin.  They may have given up their "good looks" for you and I. 

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 A recent panel discussion in Chicago addressed workplace bullying.  See ABA Journal report.  According to the panel of experts, one-third of employees suffer some workplace bullying.  Dept. of Justice statistics say two million violent crimes occur each year in the workplace.  Workplace bullying is defined as verbal bullying, as well as physical altercations.

The experts however, believe that only one-third to one-half of such incidents are reported.  Many employees are afraid to speak out.   Some employees simply believe the employer will not take any action.

The panelists agree the best thing for employers to do is have a clear policy in place that prohibits any act of violence.  The panelists believe that 90-95% of employees will comply with employer requirements, so long as those requirements are made clear.   A good policy on preventing violence will: 

• define workplace violence
•  provide a reporting procedure for workplace bullying
• encouraging reporting of incidents by using language like "all acts will be investigated"
• include a "no retaliation" for reporting clause
• inform employees that violation of staff policy will result in discipline

Be quick to investigate, urges one panelist.  Document problems, urges another employment lawyer.  One panelist also suggests the first line of defense for workplace violence is a good prescreening.  Require two letters of reference for every employee.  Be sure that at least one is a personal reference.  Some folks behave differently at work than they do away from work.  Bullies will have difficulty obtaining letters of reference, because they have a track record of alienating those they know and work with.  Make sure resumes are factually accurate.  

Sometimes, employers make a bullying situation worse.  According to one poll, 6 out of 10 victims said the employer made things worse.  To avoid making the situation worse, employers should not:

• ignore threatening or abusive behavior
• be confrontational
• retaliate against the complainant
• fail to document and respond to misconduct
• ignore provisions in company policies
• rely on employee assistance programs or healthcare providers to change personalities of bullies

Employment lawyer, Carlos Perez, says escorting employees out of the building is generally overkill.  It is counter-productive and makes it harder to resolve the issue, he says.  

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Is opposition to the DREAM act discriminatory?  The DREAM act would allow youths who were brought to this country illegally by their parents to obtain citizenship.  These young citizens would acquire US citizenship if they attend college or join the military.  Some folks oppose the DREAM Act because it would supposedly reward illegal activities or because these illegal citizens do not deserve it.  They have not paid taxes, I have been told.

In employment cases, we show or "prove" discrimination in one of two ways: 1) show proof of discriminatory comments, or 2) show that the articulated reason for some adverse personnel action is false.  If the employer says we need more men working here, then that constitutes evidence of discriminatory bias.  If the employer says he fired someone because they ere late everyday and they were not actually late everyday, then that shows prevarication, lying.  If the jury finds an employer has lied, the jury can then infer that the employer was motivated at least partly by discriminatory bias. 

So, regarding the DREAM Act, is it true that illegal citizens pay no taxes, yet supposedly seek government funding? One illegal citizen, Lheezia Dhalla came from Canada.  When she arrived at the age of 6, her family was legal.  Over time, she somehow became illegal.  She attended Reagan High school here in San Antonio and graduated summa cum laude.  See San Antonio Express News report.  She received a Rotary Club award for youth leadership.  She is in her junior year at Northwestern University, majoring in journalism, political science and gender studies.  She collected $10,000 for a bone marrow transplant for  a boy with leukemia.  She had never met the boy. 

She is the sort of citizen we would want.  But, her illegal status has come to the attention of Dept. of Homeland Defense and she faces deportation.  She would be deported to Canada, not Pakistan. But, still, this is the only home she has known. 

She is not eligible for student aid or public assistance, because she is illegal.  Yet, her family has paid state and federal taxes for decades.  

Eric Balderas came to the US with his Hispanic parents when he was small.  He graduated as valedictorian from Highlands High School here in San Antonio.  He was attending Harvard University when he was stopped five months ago at the Boston airport.  He accepted the full Harvard scholarship because he could qualify for no other aid.  See San Antonio Express News report.  

So, if the rationale is that illegal immigrants have not paid taxes and that rationale is shown to be false, then the jury, aka the public, is free to presume the employer, aka the opposition, is lying.  If another rationale is that they would be using public aid and that rationale is shown to be false, same result, the jury can infer prevarication.  It appears that neither Lheezia or Eric have been able to obtain public aid for school. 

That's how this works in a discrimination case.  Does that make sense for a proposed federal statute?  In both cases, the process and how we construct the process has a huge impact on a vulnerable group of Americans, citizens or not.  

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 You would think an average prosecutor has better cases to prosecute.  A Michigan man is facing charges of felony computer misuse.  The man, Leon Walker, used his wife's email password to review her gmal account.  In reading her emails, he learned that she was having an affair with another man.  See MSNBC report.  The couple has since divorced. 

The crime, felony computer misuse, was intended to prosecute identity theft and theft of trade secrets.  A privacy law writer wonders if a wife can expect privacy on a computer shared with a spouse.  I think I have the same question.  But, privacy or not, doesn't the District Attorney have real criminals to chase? 

Note:  in a recent CBS  news report, the prosecutor says Leon Walker downloaded the material in a "contentious way."  See report.  Mr. Walker says he learned his wife was cheating on him with her second husband.  Leon Walker was concerned because Husband No. 2 had beaten the wife, Clara walker, in front of her young son, who she had with Husband No. 1.  So, Leon Walker provided the emails to Husband No. 1 to help protect the young son. 

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Texas Monthly awards a "Bum Steer" to Omar Ramos-Lopez of Austin, Texas.  He was laid off from a used car lot in Austin.  The used car dealership used a web-based device in which they could sound the alarm remotely of any car whose owner was behind on payments.  A friendly reminder to forgetful note holders.  

Mr. Ramos-Lopez apparenrly objected to his layoff, because he used the code to activate some 100 car alarms throughout Austin which had been sold by the dealership.  

I do not know what sort of employee he was, but he it looks like he can navigate the web pretty well.....

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So, you burglarize someone's home.  If you are also a Facebook user, you might just post a picture of yourself with your ill-gotten gains on FB.  That's what one burglar did.  See report.  The burglar stole money, an ipod, a laptop and a man's new winter coat from the home of Marc Fisher, a reporter for the Washington Post.  So, of course, the burglar posted a picture of himself wearing the new winter coat, cash in hand on Marc Fisher's son's FB page.  See Marc's blog post.  

The son was able to get Facebook to shut down the burglar's access to the his FB account.  But, you gotta wonder what is going on when a burglar shows off his goods to the world on the son's Facebook account.  As one policeman said, this is not the smartest crook.  The crime occurred in Washington, D.C.  The D.C. police response has been underwhelming so far.....

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Discrimination takes many forms.  One of the most pervasive forms of discrimination is in regard to persons with disabilities.  Most are poor, so they have little voice.  For 20 years, every state has had a requirement to place developmentally disabled (i.e., "mentally retarded") in some place other than nursing homes.  Texas has lagged far behind.  So, some disability groups have filed suit in US district court.  See San Antonio Express News report.  The Arc of Texas and the Coalition of Texans with Disabilities have joined to file this class action suit. 

Advocacy, Inc. has also joined in the lawsuit.  Garth Corbett, lead attorney, mentions that many DD persons do fine at home.  They hold jobs.  But when they become ill, they go the hospital.  The hospital then mistakenly sends them to a nursing home, where they are trapped because they are ignored.  See Advocacy, Inc. report.  Their anger and depression then become diagnosed as a behavioral disorder.  And, they are deemed incapable of any sort of independent living. 

When I worked at Advocacy, Inc., we worked with persons with disabilities all the time.  In my 3.5 years there, I represented several developmentally disabled persons who did not belong in a nursing home.  They were capable of far more.  Some, not all.  Texas is woefully behind on creating halfway houses or semi-independent living conditions for those DD persons who can handle it.  

The law favors the DD person.  So, it is likely the state will eventually have to consider how to fix this (and pay for it) before a judge requires his/her changes.  It would be much smarter for the state to get ahead of this and make its own changes. Its "pay me now or pay me later."  if its later, the the state may lose control over what and how much is paid.  

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 An African-American associate lawyer at Akin, Gump Strauss Hauer and Feld, one of the largest law firms in the country, charges Akin Gump with discrimination.  Tameka Simmons claims Akin Gump would "showcase" her at minority events to display their diversity, even while transferring her duties to other white associates.  Ms. Simmons has sued Akin Gump for her 2009 layoff in New York.  See ABA Bar Journal report.  

She says she received a positive review in 2008.  But, she was warned her job was in jeopardy because she was not aggressive enough in seeking work assignments, did not have enough clients and because she had too many medial absences.  But, she responds, her billable hours were on par with other associates.  

The suit claims the firm denied her the training and mentoring provided white associates.  

It is hard to believe a law firm would state in writing that a lawyer had too many health-related absences.  Firing someone because they have too many absences would violate the Americans with Disabilities Act.  One would expect a major law firm to know better than to admit in writing that you violated a statute.  Regarding her performance, billable hours are the "alpha and the omega" at big law firms.  If her hours were on par with other associates, the firm will have a very hard time showing that she was truly under-performing.  

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We all have a boss.  Even CEO's are overseen by a board.  Victor Mercado has learned that the hard way.  He was CEO of the Bexar Metropolitan Water District until last night.   He was hired in November, 2009.  His troubles started in May.  that month,  he hired a lawyer to address the board and tell them that hey were micromanaging the utility.  The board is elected, so they probably did not appreciate the message or the messenger.  See San Antonio Express News report.  

In August, Gilbert Herrera, a Bexar Met business analyst told a San Antonio Express News reporter that the utility was overstating its revenue by $3 million.  He said the utility was resisting his advice to properly classify a supposed revenue source.  Then, $25,000 was somehow stolen from Bexar Met that same month.  An audit team hired by Bexar met confirmed Mr. Herrera's assertion about the $3 million item

In September, Mr. Herrera was fired, surely leading to a whistle blower lawsuit.  See my prior post on this topic.  The outside auditor then refused to sign the annual review of Bexar Met until the utility changed the classification on the $3 million item.  Bexar Met's bond rating was lowered.  

In October, the board rated Mr. Mercado's job performance at 2.28 out of 5.0.  Throughout this period of time, he had been telling the board he had to go to Detroit so often merely because he was a witness to possible corruption.  He always assured them he was not a "target" of the grand jury investigation.  Yet, he had hired a Detroit lawyer to represent him before the grand jury.  

Well, the grad jury indicted him yesterday in Detroit - along with former Detroit mayor Kwame Kilpatrick.  It appears that he mis-lead his employer regarding the actual status of the investigation.  

The board fired him last night.  Unless an employee can show some sort of discrimination, the employer always gets the last word.  

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In a historic deployment, the Texas National Guard 36th Infantry Division headquarters is deploying to southern Iraq.  See San Antonio Express News report.  This will be one of the very few times since World War II that a Guard headquarters has commanded active duty troops.  The first time since WWII occurred when when the 36th Division headquarters  deployed to Bosnia in the late 1990's. The second was when the 42 Infantry Division headquarters, New York state Guard, deployed to Iraq.  I served in Iraq with the New York boys.  They were good soldiers.  

Now, in the seventh or eighth year of the war, many Guardsmen and Guardswomen have served multiple tours.  They serve with no regrets.  The 36th Headquarters will sit in Basra, a city that has been relatively stable in the past year or so.  The headquarters staff include some 800 senior officers, non-commissioned officers and enlisted personnel.  

Because it is a Guard unit, you get a wide variety of ages, from 19 years old to 59.  The staff also includes seven married couples.  The news report does not mention other families, but since this is a Guard unit, I am sure there are a few father and son/daughter combinations and siblings serving on staff.  When I was In Iraq, I worked with a female warrant officer very closely.  Her son also deployed as an Infantryman.  The warrant officer, Tammy Kostoff from idaho and I went to Kirkuk for operational reasons.  She visited her son while we were there.  He got in the back of a HMMWV with his buddies and said bye.  CW3 Kostoff told him "I love you."  As he drove off, I teased her and said, "don't say that in front of his buddies."  She laughed and said, no, they all know me."  

CW3 Kostoff was originally not slated to go to Iraq back in 2004.  But, since her son was alerted, she wanted to deploy with him.  She had to trade staff positions with another officer to find a way to go. 

There was a CW2 in the 42 ID.  The story he shared with me was that he was a Leiutenant-Colonel in Field Artillery.   He left the 42 ID awhile to attend training.  When he returned, he was supposed to command the Division Field Artillery and deploy with the 42 ID to Iraq.  That would have resulted in promotion to full Colonel. 

But, while he was gone, they put someone else in his position.  He was determined to deploy with his unit.  So, he resigned his commission and got some deal where he was made a Chief Warrant Officer instantly and deployed with the 42 ID.  He was a pleasure to serve with.  He never acted like he should have been a colonel.  He was just a good soldier, serving with little recognition for making a big sacrifice. 

Guard soldiers bring a unique skill set to the current wars.  Our civilian skills are as important as our military skills.  The two wars require killing, of course.  But, the path to victory depends more on public relations than killing bad guys.  We win when the Iraqis and Afghanis have enough faith in their governments to not support the rebels. 

So, backgrounds in running a small business, farming, or preparing statements of work for a project are critical in today's wars.  When the 42 ID left, they were replaced by an active duty division headquarters, the 101st Division.  We had a lot of money to spend on projects.  We invested in projects to improve the Iraqi infrastructure.  These projects helped make the area more secure and showed the Iraqis we were not there simply to colonize them.  

My new boss, the 101st Division Chief of Staff was a tough Colonel from the Ranger regiment.  Soft-spoken, but very direct and smart as a whip.  I was describing the process of obtaining bids for projects.  I explained that one to two weeks was not enough time to solicit bids.  To obtain a bid from Iraqi contractors, our officers would communicate usually via email.  Contractors would respond when they would respond.  We were in a constrained environment, but we still expected detailed statements or work from the contractors.  Of course, being Iraqi, they would have to get the SOW's translated into English.  So, the process was lengthy. 

These projects typically cost $15-50,000.  After I finished explaining, the Colonel, said no, one or two weeks is enough.  No debate, no question.  He had heard enough.  The colonel had only been in country a few weeks himself and in the "saddle" running this sector for one or two weeks.  I had been there for six months.  Surprised, i then realized he has probably never even seen a statement of work.  Being a very busy career officer, he he may have only purchased a home once or twice in his career, moving every 2-3 years.  He had no idea what was involved in preparing bid packages.  I never had that trouble with the Guard guys and gals from New York.  One of the key civil affairs lieutenant-colonels with the 42 ID had his own plumbing business.  Another key senior officer was a stock broker on Wall Street.  They knew what it took to run a business.  The active duty guys had no first hand experience.  

Go Guard!

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The Department of Justice has filed suit against a school district in Illinois, near Chicago, because the school refused to allow a Moslem teacher time off to go on the Hajj.  The Hajj is a requirement for Moslems who are financially and physically able.  They make a trip to Mecca and pray.  It is said to be a very spiritual journey.  

The teacher asked for unpaid leave twice and was turned down both times.  Believing she had to choose between her religion and her job, she chose her faith.  She quit.  See CBS news report. 

She filed a complaint with the Equal Employment Opportunity Commission.  Apparently, the Department of Justice filed suit.  The EEOC found cause.  That is, the EEOC found sufficient basis to believe the school district violated Title VII of the Civil Rights Act.  Such cases are then sent to the Department of Justice in Washington, D.C. for review.  Apparently, DOJ filed suit, a rare move. 

It sounds like a good case.  Title VII requires employer to accommodate all religions.  Not allowing her time off would be a pretty clear failure to accommodate.  The school's best defense is usually to claim undue hardship, that the teacher's absence would cause too much hardship for a small district or because she was simply so essential.  

When I was in Iraq, traveling around northeast Iraq, I saw many flags flying from folks' houses, and walled compounds.  Later, I learned they were flags indicating folks who had made the Hajj.  The Arabs even wear different robes based on whether they have made the Hajj or not.  It is no small thing to make the Hajj. 

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 Don't try this at work.  ...  The Utah Supreme Court overruled a lower court which had found that an employer's use of water boarding did not amount to Intentional Infliction of Emotional Distress.  See report.  On a work retreat, the employer had employees hold down another employee while a supervisor water boarded the employee - he poured water over his nose and mouth.  This was said to be part of a "motivational exercise."  

The decision by the Utah Supreme Court allowed the suit to go forward.  Intentional Infliction of Emotional Distress, at least here in Texas, is a difficult case to prosecute.  Clients always tell me how bad they were treated at work.  I usually tell them, yea, but that most courts would not find that to be significant enough emotional distress.   Or, more often, the treatment is not bad enough.  Mere rudeness or incivility is not enough.  Water boarding, however, is rude enough.  Water boarding is not civil, despite what you may have heard in recent years.  It also could well produce enough emotional distress.......

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 J. Scott Partlow is not a lawyer.  He is not even truly J. Scott Partlow.  His real name is Jeff Russell and he served time in Kansas before moving to Dallas, Texas and start claiming to be a lawyer.  He has a facebook page for J. Scott Partlow, attorney.  He has been representing himself as a lawyer since 2001. 

He appeared in court in Hunt County, near Dallas, drunk recently.  The presiding judge was so upset that he summoned deputies and told Mr. Partlow he would make sure he gets sanctioned by the state bar association.  In contacting the bar, the judge learned that no J. Scott Partlow was listed as a member.  Mr. Partlow is said to have taken thousands of cases in nearly ten years of practice. This will impact thousands of people.  He has appeared in courts in Hunt, Dallas, Tarrant, Denton, and Bexar Counties.  He has represented clients in legal actions against the IRS and the Texas Deparrtment of Family & Protective Services.  He has appeared in civil, family and criminal courts. In at least one case, he represented a mother in Hunt County.  Mr. Partlow failed to appear for a hearing and the mother lost custody of her child.  Hunt County is investigating that case.  

It is, of course, against the law to practice law without a license.  He is facing jail time for this.  His former clients may suffer more.  He says his clients always won.  See report.  That may change now that courts realize he was not licensed. 

Mr. Partlow never advertised his services.  All his clients came via word of mouth.  He worked out of his apartment, which he has subsequently lost after being jailed for contempt.  See DFW stories.  

In a recent interview, Mr. Partlow said he just could not keep dealing with the pressure and wanted a way out.  He was apparently explaining why he came to court intoxicated that day.  He did obtain a paralegal degree apparently while serving time in the 1990's. 

In Texas, lawyers are required to provide their state bar number on all legal pleadings.  But, no entity or person routinely looks up the numbers or names.  If an opposing lawyer in a case gets upset, s/he might look you up.  I suppose no one has looked up Mr. Partlow before now because he has never antagonized an opposing lawyer before, - which is a rare feat in civil or criminal litigation.  

So, the next time, a client tells me he could have done what I did, I will respond maybe, but you could not do it for almost ten years......

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Former heard of Pedernales Electric Co-Op is found guilty of money laundering, theft and mis-application of fiduciary property.  Bennie Fuelberg faces up to 10 years in prison and $10,000 per offense.   Mr. Fuelberg was the PEC General manager for 32 years until 2008.  See San Antonio Express News report. 

Mr. Fuelberg admitted on the witness stand to asking the law firm for PEC to hire his brother as a lobbyist and secretly bill the utility for the salary, $5000 per month.  The lawyer, Walter Demond who agreed to this arrangement is facing similar charges.  Mr. Demond was General Counsel for PEC at the time.

Mr. Fuelberg never told the board about the hiring of his brother, Curtis Fuelberg.  The board might still be on the hook if some rate payer can allege that the board should have known or failed to undertake due diligence.   In fact, one irate rate payer who attended the trial, Ernest Aultgelt says the board's actions need to be reviewed.  

Non-profits and small utilities receive little oversight.  Too many such entities operate as minor fiefdoms. 

The jury has recommended 10 years probation and a $10,000 fine for Bennie Fuelberg.  See Express News report.  

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The first Obama judicial appointment to be approved by the Senate is Magistrate Judge Diana Saldana.  Judge Saldana replaces Judge George Kazen in Laredo.  See story. 

This is an unfortunate reflection on the state of federal politics.  The Obama administration is two years old and just now, the first Texas appointment has been approved.  Numerous judicial vacancies remain.  Obama has provided several nominees to the Senate.  But, due to Senate politics, they remain unattended.  

Judge Saldana began life as a migrant farm worker.  She will bring much needed balance to a federal judiciary saddled with far too many judges who have never had a real job outside of a major law firm.  I have had too many job related lawsuits dismissed from court based on unrealistic expectations of the workplace by judges who have had little experience outside the paneled walls of a major law firm. 

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You have to admire anyone who earns the world's best in any category.  Hans Nadler of Nadler's Bakery and Deli, a San Antonio institution, was been recognized as the world's best baker.  See San Antonio Express News report.  The International Union of Bakers and Confectioners announced that Mr. Nadler will receive its baker of the year award in 2011 in Vienna, Austria.  

Mr. Nadler, now 80, moved here when he was 23 years old from Switzerland.  He says he came to the US because it offered more opportunities to build a future as a baker.  Hans Nadler is an immigrant. Everyday, immigrants come to this country and make it a better place. 

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Clients and potential clients sometimes ask me what is their case (or potential case) worth?  What little they know of its value is colored by the ubiquitous Personal Injury lawyer ads.  Or, sometimes, their knowledge is influenced by what some brother-in-law knows or thinks he knows.  So, some clients, a small percentage expect wealth and riches.  

Employment cases are not car wreck cases.  The employment discrimination statutes provide for specific types of damages.  Title VII and the Texas law equivalent, Texas Commission on Human Rights Act, provide for lost pay and benefits, compensatory damages, punitive damages and costs of prosecuting the lawsuit which includes attorney's fees.  

So, I am sorry, but the court cannot, even if it wanted, award you the value of the home you lost or the divorce the job loss caused.  That sort of information does help show emotional suffering.  But, no, there will be no dollar for dollar award regarding a lost home.  I wish there were.  The judge cannot award anything not allowed by statute. 

Lost pay and benefits include more than may meet the eye.  It includes lost pay of course.  It includes all lost benefits.  So, save that COBRA letter that records the dollar amount paid by the employer for your medical insuirance.  I do not need to know how much you paid each month out of your paycheck for medical insurance.  I need to know how much the employer paid.  

Lost benefits include retirement benefits.  Terminations involve different calculations than failure to promote.  Lost promotions or raises can affect how much a 401K would grow.  I have had a few clients who could "guesstimate" pretty well how much their retirement would have grown if they had received a particular step increase.  If the client cannot make their estimate, then we may need to hire an economist to study the issue.  

Lost bonuses count.  Of course, the employer will claim bonuses are never guaranteed.  They may even point to policies which provide bonuses are never certain and depend on financial success each fiscal year.  But, if the actual practice suggests that bonuses are likely and that failure to pay a bonus may have been motivated by discriminatory animus, then we have a fact issue regarding bonuses.  If we have a factual issue, then the issue will be decided by a judge or jury.  

Arriving at an amount for compensatory damages is complicated.  Compensatory damages describes damages intended to compensate a person for emotional suffering.  How do we measure emotional suffering?  The best source is actual jury verdicts.  If we can point to a similar case, involving similar discriminatory practices by similar employers and employees, then we rely on such cases.  But, discrimination is rarely the same across industries.  Employers often are different in very critical ways.  So, truly comparable jury verdicts are rare. 

We also look at studies.  There have been a few.  Most studies show that a winning plaintiff in an employment cases gets no compensatory damages.  The few who are awarded some amount are typically awarded an amount equal to or comparable to the amount of lost pay and benefits.  If the discrimination victim is a Vice-President who lost $100,000 in pay and benefits, then the jury in such an instance would award $100,000 in compensatory damages.  If the victim is a warehouse laborer and his lost pay and benefits is $15,000, then the jury who awards compensatory damages awards another $15,000 in emotional suffering damages.  

That may not be fair.  The emotional suffering between the VP and the warehouseman may be the very same level.  They may both lose their homes, marriages and suffer enormously.  But, as I tell my clients, in the legal business, we do not deal in "fair."  We have to deal in reality.  The "real world" is the mode of exchange for most lawyers and judges.  

Punitive damages are very rare, according to studies.  They tend to range across wide extremes. 

Of course, all these amounts are subject to caps.  Title VII and the the TCHR Act are capped at various levels based on number of employees.  The highest cap is $300,000.  So, even the largest employer in the country will never see a larger award than $300,000 in compensatory damages.  

Once in a blue moon, you will see a jury award a million dollars for compensatory damages.  But, that amount will be reduced by a judge to the appropriate cap level.  

So, as I hear from some clients, some brother-in-law may know of an "exact same case" that resulted in a million dollars.  Great, I advise the client, go hire that brother-in-law, because he knows more than I do.  

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Body language can tell you how your next job interview is going.  If the interviewer starts drumming her fingers, sighing, leaning back, she is irritated.  If she loses eye contact, fiddles with her fingers, then she is bored.  Watch for these clues in your next interview.  

If the interviewer leans back with her hands behind her head, she may feel condescending or superior.  If she leans forward, then she listening.  if she suddenly changes positions while listening, she may feel the need to listen to what you have to say from a different perspective.    If you observe these clues, you can re-direct your efforts during the interview.  See more at the ABA Bar Journal article.  

The experts recommend that you make eye contact as much as possible.  Do not slouch or sit on the edge of your seat.  Watch how loudly you speak and how fast you speak.  

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Dan Schwartz at Connecticut Employment Blog has written a timely piece on what not to do at holiday parties.  He cites several cases in which bad conduct at office parties contributed to sex harassment lawsuits.  Yes, telling a female subordinate that you admire her breasts can be good evidence of sex harassment.  See post.  So, now, everyone has been warned. 

See also a case in which a female employee took the stage at one office party to announce her resignation and her sex harassment lawsuit.  So, follow some rules Dan recommends:  

1) Discourage excessive drinking.  Yes, employers can be held liable in some states for negligence by employees driving home form an office party.  Do not allow an Elaine dance: www.youtube.com/watch?v=5xi4O1yi6b0

2) Have the party at a restaurant or bar, where the retail establishment will assume some liability.

3) Consider providing only beer and wine. No tequila shots.  Serve plenty of food. 

4) Invite spouses and family members. Tie the party to another event, so drinking is not the only activity.  Exchange gifts, collect for a charity, have a Santa Claus. 

5) Consider making the party a lunch event. 

6) Make attendance voluntary, truly voluntary.  if it is a required event, then liability will apply.  It will then become a work function with all that entails. 

See the rest of Dan's good suggestions. 

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The new head of Texas Workforce Commission Civil Rights Division is Jonathan Babiak.  Some readers may remember him as the former head of the appeals division at TWC.  He advised employers last Spring on how to game the system regarding unemployment claims.  See Houston Chronicle report.  Mr. Babiak told employers at a TWC hosted conference in Houston that they could give terminated workers the opportunity to resign.  If an employee resigns, s/he may falsely believe they have no chance to obtain employment benefits.  As Mr. Babiak explained, they will think they are not eligible for benefits and will probably not even file a claim.  I previously wrote about Mr. Babiak here.  He was removed from his position after the flap that followed his advice to employers. 

The agency is called the Texas Workforce Commission.  It used to be called the Texas Employment Commission.  It was never called the Texas Employers' Commission.  It is supposed to be nuetral regarding unemployment claims.  That is because it is the same agency that processes claims and then later hears disputes about unemployment claims.  Mr. Babiak was the head of their appeals division until this past Summer.  

Now, he heads the Civil Rights Division.  The CRD investigates claims of discrimination.  The CRD is the state equivalent of the Equal Employment Opportunity Commission.  I hope he has picked up a little more balance. 

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