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

Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies.  He notes that the EEOC has been aggressively pursuing companies who implement such policies.  Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave.  The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee's need for leave.  I discussed these automatic leave policies previously here.  An employer maintains such policies at considerable risk.  They might work for Family Medical Leave Act or worker's compensation reprisal cases, but they will not work for ADA claims.  

The EEOC held hearings on leave as an accommodation, a couple of weeks ago.  Public comments regarding leave as an accommodation may be sent to:  Commissionmeetingcomments@eeoc.gov.  I typically only hear about the issue when some employee faces an issue with his/her employer.  But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave.  There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance.  This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.  

There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness.  The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation. 

Most cases currently find that absences of 1 year, 1,5 years are too long.  Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance.  If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation.  But, how long is too long for an employee to be out?  Send your comments to: Commissionmeetingcomments@eeoc.gov.  The EEOC is working on regulations to provide needed guidance.  Government regs always work better when they have some grounding in real life. 

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 Wal-Mart has famously, perhaps infamously opposed union organization in its stores.  They have survived the very few union elections that have been held.  But, they may not survive the latest effort to improve working conditions at Wal-Mart stores.  Organization United for Respect at Wal-Mart (OUR Wal-Mart) does not seek to form a union, but does seek to improve working conditions.  See Workplace Prof report.  The group claims to have thousands of members and will soon have a web site and Facebook page.  They seek to improve the low pay, benefits and simply to gain more respect. 

The group receives some union financial support and in the end, may be a better fit for Wal-Mart workers. 

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The Texas Supreme Court has ruled that stock options will indeed support a non-compete agreement.  See last week's Texas Supreme Court opinion in Marsh USA Inc. v. Cook. 

I previously wrote about this case here and here.  The Dallas appeals court had found in 2009 that stock options would not support a covenant not to compete.  There must be some binding promise by the employer, such as to provide trade secrets to support a covenant not to compete, said the appellate court.  The Marsh USA decision now overrules this Dallas appellate court opinion.  

Our state difffers from many states which simply require compensation or money to make a non-compete agreement binding.  The law in Texas has been more restrictive, requiring that a promise regarding proprietary information to the employee would be necessary to make a non-compete binding.  

Non-compete agreements have historically been seen as a restraint on free trade.  If an employee could leave a job and take proprietary information, then that employee could start a new business with such information.  Employers needed a way to provide confidential information to employees without fearing they were creating new competition.  So, the Texas Covenants Not to Compete Act was passed.  The CNCA imposes limits on how such agreements can be enforced. 

With this latest decision, the Supreme Court has continued its gradual trend toward making non-compete agreements easier to enforce.  Stock options are now sufficient consideration for a non-compete agreement.  Stock options, said the court, reasonably relate to an employer's good will and encourage an employee to continue in his/her employment.  The Texas Supreme Court has taken another step toward making non-compete agreements less restrictive.  The majority opinion notes and welcomes this shift.  As the dissent points out, if stock options can encourage an employer's goodwill (a requirement under the Covenants Not to Compete Act), then simple compensation may also provide the necessary consideration. 

Three justices dissented, while a fourth issued a concurring decision.  It was a close vote.  But, with this decision, Texas becomes more and more a corporate world and less and less an entrepreneurial world. 

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In a lawsuit in Houston, the defendant has filed a writ with the Texas Supreme Court seeking access to a plaintff's Facebook and MySpace entries.  The defendant wants the entries because they represent a "compilation" of who the plaintiff is.  See petition for writ of mandamus.   In Re Magellan Holdings, LP And Magellan Midstream Holdings, LLC,  No. 01-11-00373-CV. 

The defendant was allowed discovery regarding entries which occurred prior to the plaintiff restricting access.  But, once the plaintiff restricted access to friends, the trial judge refused discovery from that point forward.  Writ of mandamus is the state equivalent of an interlocutory appeal.  So, it appears that the defendant sees the Facebook and MySpace discovery as critical to its case.   The Houston court of appeals affirmed the trial judge's refusal to allow the discovery.  This may be the Texas Supreme Court's first encounter with social media discovery. 

The plaintiff was injured in an accident such that he cannot care for himself.  The defendant's argument is that if the plaintiff can maintain wall postings on Facebook and elsewhere, then he is not as mentally incapacitated as he claims.  So far, the few cases that have addressed the issue generally prohibit discovery without clear relevance to some specific issue.  See my prior post.  A "fishing expedition" type request will not suffice to gain access.  But, as described in my prior post, if a party can show emotional state is truly in issue, or as here where mental state is truly in issue, then the opposing party will probably gain access to your "private" Facebook information. 

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 Employment class actions have been dealt a blow by the recent decision in Dukes v. Wal-Mart.  You can look at the decision here.  The decision, as I understand it, finds a lack of "commonality" among the female plaintiffs because there is no one company policy that caused their discrimination.  The "policy" the plaintiffs were relying on was actually a lack of policy.  Wal-Mart lacked protections in place to keep local store managers from discriminating against women.  I have previosuly discussed this case here and here and here.  

Bu, as several lawyers have pointed out, the facts and evidence from Dukes v. Wal-Mart will surely continue in localized class actions.  Class actions can be any size from a handful of potential employees to thousands.  So, the Dukes v. Wal-Mart case will likely become several state and region class action lawsuits.  

Commentators talk about how this is the biggest employment decision in the last ten years.  Not to say it is not an important decision, but, really few of us plaintiff employment lawyers do class actions anyway.  

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SGT Glenn Sewell was killed in Iraq by an IED (Improvised Explosive Device).  SGT Sewell was assigned to the 1st Cavalry Division out of Ft. Hood.  He was described by his fellow soldiers as happy, quick with a joke and the life of the party.  He and another soldier were killed in Wasit Province, eastern Iraq, which has been a relatively safe province.  See San Antonio Express News report. 

SGT Sewell graduated from Judson High School where he played in the band and was know for his sense of humor.  He was said by family to love the Army.  

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 The US Department of Labor has filed suit against Child Protective Services for failure to pay overtime wages.  The state actually enjoys sovereign immunity from such suits.  So, if DOL does not initiate such suits, such a lawsuit might not be possible.  According to the suit, CPS workers have been told to work off the clock.  Yes, that would be a classic violation of the Fair Labor Standards Act.  See San Antonio Express News report.  The suit is the result of a lengthy DOL investigation. 

The suit seeks some $1 million in overtime wages for some 800 current and former CPS workers.  As if the caseworkers did not have enough to deal with already, they must also deal with overtime wage violations.  CPS continues to suffer from high turnover and low morale.  

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The wars still rage on.  Soldiers are still dying and risking their lives everyday.  But, you would never know it from the talk at parties or in the bars.  America is removed from the war.  Even our taxes were not raised, as happens in most wars, but decreased.  

When Reservists and Guardsmen deploy, that does register with some folks.  But, the problems at home register with very few of us.  A Reservist called me recently.  I listened to his story as a lawyer first, but also as a recently retired Reserve officer.  

"Joe" has deployed twice, in 2003 and 2008.  He works s a firefighter/paramedic at a good sized town in Texas.  In his Reserve life, he serves as a staff officer in a drill sergeant unit.  My last Reserve unit was a also a drill sergeant unit.  I know that drill sergeants are the best, the smartest and, contrary to what some would expect, very skilled at interpersonal relations.  He was a drill sergeant before he became an officer.  Drill sergeants must have high academic test scores to become a DS. They are scrutinized in ways a normal sergeant never is.  Theirs is a very public sort of duty that allows very few mistakes.

He has worked for the "Smallville" Fire Department since 2000.  He was hired to be a paramedic.  He attended all the required schools and obtained all the required certifications.  All he lacked was the required on-the-job training.  The OJT training consisted of 30 shifts supervised by a senior paramedic.  Once he had his 30 shifts, he would be done.  He would then be a paramedic. 

He started his 30 shifts in 2003 but it was cut short when his supervisor trainer got into some trouble with alcohol.  Joe only completed some 19 shifts of his 30.  He then deployed.  He returned and started his 30 shifts again from the beginning in 2008, but was unexpectedly called back to active duty in 2009.  This time, he completed 18 of his required 30 shifts.  

He returned home from the war in February, 2010.  He started his 30 shifts one more time in September, 2010.  Before he got very far, a co-worker complained abut his paramedic skills.  The new Chief of Paramedics asked that Joe undergo a 10 shift "ride-out."  That is, Joe would be scrutinized by 3 experts for 10 shifts.  He would be scrutinized as a senior paramedic, even though he had never completed the 30 shift requirement.  It was the new Chief's decision that Joe be rated as a senior paramedic. 

About this time, the new Chief of Paramedics talked to Joe about some training.  He mentioned to Joe in an accusatory manner that Joe seemed to care more about being an Army man than being a paramedic.  

Soon after, Joe had a free weekend so he submitted a request to attend a Reserve conference near his hometown.  The conference, as with most Reserve conferences was on the weekend.  As part of his ten day ride-out, Joe was required to first be tested on some basic paramedic equipment.  With no warning, the new Chief asked Joe to do the equipment test the same weekend as the Reserve conference.  Joe told him, that he could not - he already had orders to be on active duty for that weekend.  The chief, said hang on.  Returning to the phone, the Chief, sounded upset and said the conference was not on the drill schedule Joe had turned in.  "That's right," said Joe, it is a conference, not a regularly scheduled drill."  The Chief replied, "Be in my office tomorrow with orders showing you are on Reserve duty this weekend!"  

Joe appeared at his office the next day with the necessary orders for the weekend.  So, the new Chief made him do his equipment check the next day with no preparation.  Joe passed.  He tested on Friday and went to the Reserve conference on Saturday. 

By April, 2011, the 10 day ride-out was over.  All three evaluators failed Joe.  They said Joe knew the protocols and the meds, but he was too slow to assess.  Well, speed comes with experience. Yes, Joe had his 30 shifts spread over several years.  But, they were with two different trainers, with two different approaches.  Worse yet, as I know from my deployment, when you deploy and perform a completely different skill set, you lose much of what you used to know.  All that knowledge just goes away somewhere. 

When I deployed, I never went near a lawsuit or an affidavit.  Never saw a legal pleading or read a case. Upon my return, I struggled for months trying to pull back that old knowledge that used to be so close to the surface.  I filed so many lawsuits before, but upon my return in 2006, I could not remember at all how to file one silly lawsuit.  I had to ask colleagues for help.  

Joe knows his paramedic business.  But, Smallville decided they would terminate his employment after 11 years.  They did offer him a severance package.  Unlike most terminated employees, Joe has a choice.  I told him he has a viable USERRA lawsuit if he wishes to pursue it.  In the end, I think he will accept the severance and resign quietly.  Joe has a small child and a wife.  Like most Reservists today, he also has options.  He could deploy again.  The Army desperately needs captains and majors in the two wars. 

In a perfect world, he would not have to risk his life in Afghanistan to put food on the table.  But, in a better world, his employer would understand Joe's issues and perhaps, even support his Reserve duty.  There are many Joe's out there and there will be more. 

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A federal district court jury in St. Louis found in favor of a woman claiming sexual harassment. They then awarded her $95 million, an unheard of amount in a single plaintiff case. The unlucky defendant was aaron's Inc. formerly known as Aaron's Rent-to-Own.  See St. Louis Today report.  The amount includes $15 million for compensatory damages and $80 million in punitive damages.  The plaintiff, Ashley Alford, was subject to crude jokes and frat boy behavior by her supervisor, Richard Moore.  Mr. Moore was General manager for one of the Aaron's stores. He hit her in the head with his penis, groped her, pinched her. The harassment lasted a year. Finally, he threw her down, masturbated over her and was arrested.  

The employee complained but the company did nothing - at one point, even warning Mr. Moore to watch his back.  The jury found the company negligently supervised Mr. Moore and that he had assaulted and battered Ms. Alford. 

With caps on damages, the amount will be reduced to about $41.6 million. The company called the verdict a classic "runaway jury."  

In my experience, the juries "runaway" only when they get very angry at a particular party. It looks like they became very angry with Aaron's for some reason. 

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The female administrator who sent some bawdy emals has resigned.  Donna Laird, the former radiography director for St. Phillip's College quit after an investigation into her sexist, racist and raunchy emails.  See San Antonio Express News report.  I previously discussed her emails and the EEOC complaint by Warren Parker here.  Mr. Parker was supervisied by Ms. Laird.  He received, he says, hundreds of Ms. Laird's emails.  He claimed sex based discrimination when he was denied tenure.  

But, the St. Phillip's investigation found that the emails depicted negative stereotypes of many groups and were sent to men and women, suggesting a lack of bias.  The investigation also indicated that Mr. Parker used some of the emails as "ice breakers" during his classes and his private business seminars.  

Mr. Parker has already been terminated due to his having taken a sick day to do some work on his side business, teaching radiography.  Rebecca Sanchez, former chairwoman of the allied health department has also resigned.  She received many of Ms. Laird's emails and did not object to them, found the investigation. 

Note the issues here.  Racist, sexist emails are never good.  But, if you send them to all genders, all races, the suggestion is a lack of bias.  This is a complicated, risky defense.  But, in theory, a supervisor can escape charges of discrimination if the supervisor is mean to all races and both genders.  ....  Still, the safer approach is just avoid sending racist, sexist emails.  Ms. Laird says she sent the emails to reduce stress at work.  Now, she has ample opportunity to reduce work related stress.  

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Light is shed on a new area of law in a decision out of East Texas.  Electronic discovery is still a very new area in the litigation business.  A federal judge in the Eastern District of Texas imposed sanctions one year after a case settled.  The judge found that the defendant failed to impose a hold on electronic evidence and prevent systemic destruction of such electronic documents.  See ABA Litigation news report.  In Green v. Blitz USA, Inc., the plaintiff learned through another plaintiff that Blitz failed to save from destruction key documents.  

The plaintiff had claimed that not installing a flame arrester made a gas can more dangerous.  Blitz defended on the grounds that flame arresters were not effective.  In a related case, the court found that Blitz had failed to produce certain documents and had allowed others to be destroyed.  So, the district judge in Green found that Blitz made little, if any, effort to preserve the documents concerning the flame arrester.  

The judge in Green ordered Blitz to pay $250,000 in civil contempt sanctions; file a copy of the order in every lawsuit still pending or pending within the last two years; and file a copy of the order in every lawsuit for the next five years.  The court also imposed a $500,000 sanction which would be tolled if Blitz could certify that it had complied with this order.  See decision. 

The court is obviously trying to send a message regarding litigation holds.  The party with the records must reach an agreement early on regarding the parameters of such a hold and take steps to prevent the destruction of such records. 

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 Mandatory paid sick days for all employees is a new concept.  San Fransisco and Washington, D.C. were the first towns to try it.  Now, the state of Connecticut will try it, as well.  So far, it seems to be working.  One restaurant owner in San Fransisco says she opposed it but has been pleasantly surprised that it has worked as advertised.  Workers have limited the use of sick days.  No one has abused the sick leave.  Jennifer Piallat, a restaurant owner in San Fransisco, says she has lost perhaps $2,000 due to the new requirement - when she had feared she would lose $30,000 per year. See MSNBC report.  She says she has not had employees taking advantage of it. 

Several other cities, Denver, Seattle, Philadelphia  are considering the same requirement. Massachusetts is considering requiring seven days of paid sick leave.  The USA is one of the few industrial countries without mandatory paid sick leave. 

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 A little known provision in the National Labor Relations Act  provides protection to employees when they discuss "terms and conditions" of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace so long as the discussions concern problems at work.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions. 

So, what does "terms and conditions" mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact theNational Labor Relations Board.  The NLRB enforces the NLRA. 

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US Army SGt Thomas A. Bohall was killed in Afghanistan.  SGT Bohall, a 2004 graduate of Reagan High School, was killed by an explosive device in Kandahar Province.  He was one of one of six soldiers killed by the blast.  He grew up in Kansas but moved here in 2001.  His parents have since moved to Florida.  His father was inclined to have his body buried in Arlington National Cemetery.  But, the outpouring of love and support prompted Tim Bohall to have his son buried here in San Antonio.  

SGT Bohall played football and soccer for Reagan High.  He was a goalie on the soccer team.  His teammates called him "Rev" because he showed so much school spirit.  SGT Bohall had served two tours in Iraq and was on his first tour in Afghanistan.  He leaves behind a wife and young daughter. See San Antonio Express News report. 

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