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

The EEOC has been hit with another sanction of attorney's fees.  A court assessed $2.6 million in attorney's fees against the EEOC due to a lawsuit they filed which they lost.  See Workplace Prof blog post.  The EEOC had sought class action status in EEOC v. Cintas and lost.  Because the EEOC did not attempt conciliation prior to suit, the federal court dismissed the action.  See the court decision.  The court found that conciliation was required as part of the requirement to exhaust administrative remedies.  

Title VII of the Civil Rights Act of 1964 has requires that when the EEOC finds "reasonable cause" to believe that discrimination has occurred, then the EEOC must attempt conciliation or settlement.  This requirement was an early attempt at lawsuit reform.  It requires that individuals bringing suit first attempt all non-lawsuit remedies first.  

In EEOC v. Cintas, the EEOC had been denied class action status.  It then sought a "pattern and practice" type allegation on behalf of thirteen individual women and was again re-buffed.  Responding to the employer's claim that it had not attempted conciliation, the EEOC argued that it did attempt conciliation against Cintas previously as part of its class action suit - which later failed. But, that conciliation apparently did not include these thirteen individual women.  So, yes, the EEOC attempted conciliation on behalf of a class of women, but apparently did not attempt conciliation on behalf of these thirteen ultimate plaintiffs.  This is an important distinction.  But, does this distinction make a difference?  Would Cintas have been any more receptive to conciliation if the plaintiffs were thirteen individual women, instead of a class of women?

As Workplace Prof points out, this decision and others like it are tying the EEOC's hands in regard to pursuing class actions or multiple plaintiff lawsuits.  The EEOC lacks the resources to represent individual plaintiffs.  They simply do not have enough lawyers.  So, they have been trying to focus on larger lawsuits, such as class action lawsuits and "pattern and practice" lawsuits.  This federal court decision will make it more difficult for the EEOC to focus on systemic cases.  We taxpayers will get less bang for our buck from this important federal agency.  And, Cintas skates after having been found reasonably likely to have discriminated against some women. 

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Residents of a north Bexar County community have accused a deputy Sheriff of racial profiling.  See San Antonio Express News report.  Some residents of Timberwood Park, near Bulverde, and local activists claim that Deputy Patrick Plate has been targeting Hispanics and pulling them over for traffic stops and calling US Immigration and Customs Enforcement (ICE) when the Hispanics could not prove citizenship.  The deputy has been reassigned pending the investigation.  The Sheriff's Office explained that immigration is not one of their responsibilities. 

The activists said reassigning the deputy to another area is not enough.  He should be off the streets, said one.  The residents said the deputy has apparently been targeting Hispanics driving old, beat-up pickup trucks.  Miguel Perez said he saw Deputy Plate peering into the windows of trucks stopped at a traffic light.  One of the trucks was driven by a co-worker of Mr. Perez.  Miguel Perez talked to the deputy about this and the deputy said the truck had malfunctioning lights.  Mr. Perez denies the lights were malfunctioning. 

In the most recent state legislative session, Gov. Perry tried to pass legislation making it easier for local law enforcement officers to enforce immigration laws.  His attempts, however, failed. 

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The Occupational Health & Safety Act requires employers to provide a safe working environment for all workers.  The Occupational Health & Safety Administration (OSHA) protects some workers, but not all.  There are no protections for repetitive stress injuries or ergonomic requirements.  See "Can my boss do that?"  There are simply few rules for office workers and no rules regarding these more recent sorts of injuries.  The OSHA rules still focus on the traditional physical injuries in an industrial setting. 

If you are covered by work rules, you should see a poster on the wall.  OSHA rules apply to all private sector workers.  You can go the OSHA website to see specific safety rules for specific industries.  

The OSH statute prohibits reprisal for reporting safety violations.  The deadline to report reprisal is 30 days.  See OSHA link discussing reprisal.  That is an exceedingly short deadline.  Many workers will not become aware of the reprisal for days or weeks after it occurs.  OSHA rules continue to be a hot button political issue and are not likely to change soon. 

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Facebook has become a big part of the lives of many Americans in a very short amount of time.  One photographer recently was hired to take senior pictures at a high school.  The photographer came across a FB page poking fun at some girls.  Someone had created a fictitious name just so they could post hurtful comments about other students.  

Jen McKen decided that she would not take photos of the girls who were using FB to bully other girls.  She emailed them the night before, included a copy of their comments and said she would not take their pictures.  See Jen Mcken's blog about her photo shoot.  She returned their deposits. 

Good for her.  As she explains, she cannot know all the bullies in school.  But, if she knows someone is being a bully, she will not take their picture.  When last I checked, she had 375 comments on her blog post mostly all supporting her stand. 

I am told that Jen's Facebook page has "blown up" from too much traffic.  Many people apparently support her. 

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You know, you just cannot make this stuff up.  A disbarred lawyer was recently arrested for an outstanding warrant of felony fraud.  He was found with $12,000 in cash in his car and another $838,000 in cash in a rented storage room.  He had some guns with the $838K.  

But, that is normal for John B. Kennedy.  In 2004, he was arrested for practicing law without a license.  Then, his son found $1 million in cash crammed into a suitcase in the a closet at the elder Kennedy's house.  See Houston Chronicle report.   In 2004, Mr. Kennedy had been disbarred by the Texas, Delaware and the District of Columbia bar associations.  His former wife speculated that he had accumulated the cash from agreeing to represent clients for cash and then just stashing it. 

I don't get it. ...  Am I the only lawyer who keeps his $838K in his tackle box? 

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Surina Dixon was hired by Texas Southern University in Houston, Texas to coach women's basketball.  She quit her job in Tennessee and moved to Texas with her husband in 2008.  She noticed soon after she arrived that the new men's basketball coach was paid $148,000 while she was to be paid only $75,000.  She complained.  She said this violated Title IX.  TSU did not respond.  Then, she complained again and mentioned that this was discrimination.  See Houston Chronicle report. 

After only three months on the job, TSU fired her saying they wanted to move in a new direction.  She had signed a three year contract but was fired after only three months.  She sought damages equal to the value of her multiple year contract, and, i am sure, compensatory damages (emotional suffering) under Title VII.   

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A survey of likely voters in 2010 shows that the American public is generally opposed to mandatory arbitration clauses found in employment and consumer situations.  59% oppose forced arbitration clauses found in the fine print of employment and consumer agreements.  59% of likely voters support the Arbitration Fairness Act, a proposal which would prevent these arbitration clauses.  Opposition to such clauses is found regardless of party affiliation or gender.  Voters who identify themselves as Republicans opposed these clauses 59%, while Independents opposed such clauses 59%.  60% os surveyed Democrats opposed arbitration clauses. 

The survey also indicated that some three-fourths of Americans believe they can sue an employer if necessary  the presence of these forced arbitration clauses.  

The survey was taken by Lake Research Partners and was commissioned by the Employee Rights Advocacy Institute, an affiliate of National Employment Lawyers Association.  

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Often, the way an employer defends itself against a lawsuit reflects on the underlying claims of the employee.  Look at the lawsuit filed by Priscilla Agosto against a Brooklyn, New York real estate company.  Ms. Agosto claims the male workers rubbed themselves against her, made crude remarks and even asked for oral sex.  So, in defense to the lawsuit, one of the owners at People's Choice Realty say no way, Ms. Agosto is too unattractive to harass.  Yes, they really said that.  See New York Daily News report.  

Odelia Berliashik, one of the owners of the firm, responded to the lawsuit, "Who would touch her?  She's an ugly girl anyway."  Ms. Agosto endured repeated abuse and only quit when one of the co-workers slapped her.  Ms. Agosto says she went crying to Odelia but was waved away. 

Odelia Berlianshik said she told the co-worker to apologize.  The two other co-owners, Mickey and Richard Berlianshik are named in the lawsuit along with Odelia. 

This may be a creative defense, but it will surely only help the plaintiff win the sympathy of the judge and jury.  You just cannot make this stuff up.....

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A frequent question arises regarding when an employee is an independent contractor and when is he just a regular employee.  Many employers have moved to using independent contractors instead of employees.  The status of independent contractor can save the employer significant amounts of money in employment taxes, social security payments, etc.

But, the IRS understands that employers have an incentive to stretch the truth regarding an employee's status.  Department of Labor understands this and the courts understand this.  So, every entity has some test to determine whether an employee is truly independent.  Kevin Christensen has written a nice summary of the different tests to determine whether an employee might be considered an independent contractor at his California Employment Blog.  You can also look at a helpful summary provided by the DOL.  

Among the most important factors is 1) the degree and nature of control of the work by the supervisor.  If the supervisor simply asks that a wall outlet be installed, then that employee performing the work may be a true independent contractor.  But, if the same supervisor instructs the employee to use 220 gauge Romex, specifies where and how to tie into existing wiring and provides the Romex wire and tools, then that so-called independent contractor may actually be an employee.  

Another important factor is 2) how integral is the work to the business.  If the business is a bakery, then it seems unlikely they would also be in the business of installing new wall outlets. 

Another important factor is 3) the extent to which the employer provides the equipment and materials of the purported independent contractor.  If a stationery supplier hires truck drivers via a third party, but provides the truck, then it is less likely that the third party is the true employer.  That is, if a) ABC Stationery Supplies provides the truck, b) XYZ Trucking Co. claims to be the true employer but does nothing other than issue a pay check, then it appears that the truck driver is actually employed by ABC Stationery.  As the DOL notes, context is everything.  These tests depend a great deal on individual facts.  

Perhaps the least relevant factor is how is the alleged employee paid.  Obviously, a true independent contractor would be paid by the project, not by the hour. 

The independent contractor distinction is very important. if an employer mis-classifies an employee as an independent contractor, then that employer could become liable for unpaid overtime for a time period of years. 

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Retaliatory lawsuits are rarely a good idea.  Employers can feel very offended when an employee files a lawsuit. The employment relationship can be like family.  So, sure, many employers feel some betrayal when they are sued.  But, to respond with a counter-lawsuit almost never works. 

In one case, the employer responded to a discrimination lawsuit by employees with a counter-suit for defamation. The timing of the counter-suit seemed suspicious enough, but the employer also asked for $1 million in damages.  The court eventually found the counter-suit to be frivolous and sanctioned the employer to pay attorney's fees for the employee.  Not only did the employer lose its supposed counter-suit, but he cast substantial doubt on whatever defenses he had to the original discrimination lawsuit by his employees.  

So, if you, the employer counter-sue and lose, you could incur additional tens of thousands of attorney's fees owed to the plaintiff - in addition to the tens of thousands you owe to your own lawyer.  Not a good business decision, after all. 

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Well, it had to happen sooner or later.  A parent has filed suit against some middle school boys regarding things they said about the man's young daughter.  The father, a Houston area lawyer, sued the boys over a video posted by the boys regarding his daugther.  See Texas Lawyer report.  The father, acting as "next friend" to his daughter, sued the Houston area boys for libel.   The suit claims the boys claimed untrue facts, and made suggestive, derogatory comments regarding his daughter.  Two of the boys filed pro se answers via relatives denying liability. 

Facebook has become a way of life for many middle schoolers.  This may be the first of many such lawsuits. 

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Employee handbooks are not binding on a Texas employer.  The typical employee handbook says the employer will not fire someone until that person has been verbally warned, and then warned in writing a few times.  Or, the handbook may say that an employee will not be demoted or fired without a good reason.  Once upon a time, such handbooks were found to be binding upon the employer.  Employers soon learned, however, that they could avoid the binding nature entirely if they simply state in the handbook that it is not binding and that the policies can be changed anytime. 

So, yes, these days, almost every employer, probably 99.9% now state somewhere in their handbook that it is not binding.  So, yes, an eleven year employee can now be fired with no warning simply because a new manager wants to downsize the office. 

I have previously talked about employee handbooks here and here. 

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Bunnatine "Bunny" Greenhouse has settled her lawsuit against the US Army Corps of Engineers.  Bunny Greenhouse blew the whistle on contract violations by KBR for a no-bid contract.  The company was essentially allowed to prepare its own cost projections as a basis for securing a no-bid, no-compete two year contract for work in Iraq.  Ms. Greenhouse complained about it and suffered retaliation for months and years.  She suffered worsening performance evaluations.  The Corps refused to recognize her achievements.  At one point, a co-worker even set a trip cord for her causing her to trip and fall at work.  See Washington Post report.  

Initially, Ms. Greenhouse objected within the Corps.  She then took her concerns to Congress when the Corps failed to respond.  After speaking in Congress, she was kicked out of the Senior Executive Service and stripped of her Top Secret clearance.   Before all this started, she had been the top action officer for all Corps contracts.  Ms. Greenhouse filed suit.  See National Whistleblowers Center report. 

Ms. Greenhouse agreed to a $970,000 settlement including lost wages, compensatory damages (emotional suffering) and attorney's fees. 

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