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

Judges are easy targets.  They rule on issues that affect everyone.  They are limited by ethical rules in how or even if they can respond to political attacks.  So, sure, Newt Gingrich attacks Judge Fred Biery as part of his campaign for president.  Mr. Gingrich says he would "do no more than eliminate Judge Biery in San Antonio and the Ninth Circuit."   See San Antonio Express News report.  That's all he would do.  How comforting. 

Mr. Gingrich and others refer to Judge Biery ruling in the Medina Valley High School case.  He found that the school was sponsoring prayer at a graduation ceremony.  I previously wrote about the attacks on Judge Biery here.  Mr. Gingrich refers to Judge Biery as an "anti-religious, dictatorial bigot."  Apart from Speaker Gingrich's grandiose rhetoric, he is flat wrong.  Judge Biery's opinion offered advice, something judges are loath to do, to help the school get through the crisis.  He suggested removing language asking the audience to join in the prayer, so as to avoid the constitutional issues.  He wrote a paragraph suggesting the school district look at this issue as a "teachable" moment in tolerating different views.  In the judge world, he bent over backwards to avoid conflict.  Yet, he suffered threats.

There is a reason why we have independent judges under the US Constitution.  State judges must seek re-election every few years.  Federal judges have a job for life.  Every so often, some politician seeks to restrict that independence.  President Roosevelt attempted to pack the Supreme Court in the 1930's.  President Tom Jefferson sought to remove President Adams' judges and install his own.  Politicians in Florida are trying even now to limit the terms of the state judges in that state. 

But, without an independent federal judiciary, most of the civil rights gains of the 1960's and 1970's would not have occurred.  Judge John Minor Wisdom in New Orleans had to leave New Orleans to avoid the threats.  Without his courage, the schools in New Orleans would not integrated.  Without  a few brave judges in the South, we would still have separate but so-called equal facilities in stores, schools and government buildings. 

I believe Speaker Gingrich does not truly seek to diminish the independence of the federal judiciary.  Some of his rhetoric is often "over the top."    But, if he were to succeed in removing particular judges due to perceived judicial activism, he would indeed curtail the independence that makes he federal judiciary unique and vital to out form of democracy. 

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I served in the US Army, National Guard and Army Reserve for 28 years.  I served as an Infantry officer for most of that time.  As young Infantry officers, we studied leadership and group dynamics over and over.  Studying leadership has become a favorite past-time for me.  One fundamental principle of Army leadership is that a leader never takes advantage of his position.  He always places his soldiers' welfare ahead of his own.  For example, in the field during training, we should never eat before our men eat.  We should never "sneak off" to get a shower if our men could not do the same. 

This principle was violated, sometimes.  But, even in the violation, it helped confirm the rule.  We, my colleagues and friends, always avoided serving in military units that violated this basic leadership principle.  We knew leaders who placed their own comfort before that of their soldiers.  We always found it shameful and abhorrent. 

In a war zone, I saw leaders again place their own welfare ahead of the troops they commanded.  It was, fortunately, rare, but it did occur.  I understand that the Cruise Ship Captain who abandoned his ship before his passengers evacuated violated several laws of the sea.  He had a duty to see to their evacuation before securing his own safety.  Cpt Schettino was ordered by a Coast Guard commander back to his cruise ship to coordinate the evacuation.  Cpt Schettino merely responded that it was too dark to go back to his ship. 

It is easy to criticize the captain.  The word "cowardice" has emerged.  But, I prefer to wait a little longer to learn more about what happened.  One of the wonderful tools provided by the Army is the Center for Army Lessons Learned (CALL).  The CALL Center historians and writers research and write up the best war vignettes and battles - most of these stories concern leadership in many different contexts.  At one time, i was sure that I had read them all.  CALL produces more every year, so now, I am long behind.  One paper I recall looked solely at what leadership traits made effective combat leaders.  That is, what could we look to in training or education to help mold good leaders under stress.  Physical conditioning perhaps?  Knowledge of weapon systems?  Surely, prior combat experience would make a big difference.  No, in the end, it was none of these things. 

The paper's conclusion was that closeness to your buddies, a sense of comraderie was the only reasonably good predictor of success in that most stressful of situations, combat.  Readers may be familiar with the Mel Gibson movie, "We Were Soldiers."  The movie concerned an Infantry battalion during a pivotal battle in the Viet Nam War.  The movie was based on a book with the same name.  Then Lt.-Col. Hal Moore commanded the Infantry troops.  LTC Moore's battle turned out well against overwhelming odds.  His battalion survived when sheer force of numbers should have decimated his soldiers.

But, those who have not read the book do not know that the second half ot the book concerned a second battle with an entirely different Infantry battalion.  That second battle was a disaster.  The second battalion walked into a well planned and well-executed ambush.  The commander was a seasoned veteran with solid combat experience.  But, as the battle unfolded, the commander was said to have been dis-engaged.  In effect, he withdrew from the carnage and let his subordinate leaders react on their own.  The battalion commander was new to the unit.  He had just joined them shortly before the battle.  Emotionally, he was not really a part of the unit.  When the situation devolved to gut instinct, the new commander's instinct was to sit under a tree during the horrific ambush. 

Did Cpt. Schettino just join the ship before the cruise?  Did he have reason to feel disaffected from his crew and passengers?  Nothing can justify running away from a situation that demanded the ship's captain more than ever.  He is still a "dirtbag," in my opinion.  But, still, i prefer to wait and hear the rest of the story.  How many office managers have a reason to feel dis-affected from their subordinate employees?  How many employees suffer because a manager is ill-trained for the task at hand?  

In the Army, we call this phenomenon "sh-- rolls downhill."  The leader at the top sets the standard for everyone s/he supervises.  They set the tone for the rest of the company.   In the business world, we call this phenomenon poor training and poorly run companies result in many lawsuits. 

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 "Cease and Desist" letters can be rather assertive.  By definition, they assert someone's rights.  But, they need not always frighten the recipient.  See this link for a response to one such cease and desist letter.  San Antonio's own Freetail Brewing Company received a cease and desisist letter regarding its use of the name "Hoposaurus Rex."  Freetail used it for a beer or a beer process.  Receiving a threatening letter, the owner responded with a thank you, said he loves to hear from peoiple all over the country.  As Scott Metzger explained, his company did not use the name enough to care about it.  He offered his total "acquiescence" to their demand to stop using the name.

He requested (but did not demand) that the lawyer tell his client that Freetail would have been happy to give up the name if they had simply asked nicely.  Mr. Metzger asked (but did not demand) the lawyer to please tell his client that he would like to try their beer at the next beer festival, but would probably not give him a hug.  Mr. Metzger even included a nice drawing of a Tyranosaurus Rex waving a white flag......

A lesson we can all learn.  When next you consider a lawsuit, first consider what is the harm?  What damage have you suffered?  Then, ask yourself is that damage enough to justify time, expenses and energy.  If the lawsuit has no harm or the harm cannot justify a lawsuit, then simply consider the experience to be one of life's educational opportunities. 

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Judge Sam Sparks, a U.S. District Judge in Austin, has addressed the very important issue of beer in Texas.  As the judge notes, no one would question the sincere interest of Texans in their beer.  Authentic Beverages Company Inc. filed suit regarding Texas' beer statutes.  The statutes and regulations divide beer distributors into three tiers, manufacturers, wholesalers and retailers.  These statutes prevent any overlap between the three tiers.  These statutes have made it difficult for the new microbreweries to develop in Texas as they have developed in other states.  

The suit challenged the statutes and regulations on three First Amendment grounds: 1) they prohibit breweries and distributors from telling customers where their product can be bought, 2) they require inaccurate terms, e.g. "malt," "ale" and "malt liquor," 3) prohibit advertising the alcoholic strength of the product.  For example, the plaintiff claims that "ale" is misleading.  Texas uses the term to refer to a specific alcoholic content.  But, in reality "ale" refers to a specific fermentation process, regardless of the alcoholic content. 

The suit is based on commercial free speech and equal protection arguments.  One of the requirements of commercial free speech is that the state must articulate some legitimate government interest in the regulation.  The Texas Alcoholic Beverage Commission and the Attorney General were unable to to articulate a legitimate government interest, found the court.  Indeed, Judge Sparks noted several times throughout the opinion that the AG's office presented little to no evidence for its positions. 

For example, regarding the distinction between "ale" and "beer," the TABC argued that the misleading definitions used in the Alcoholic Beverage Code work because the average consumer does not appreciate the true difference between ale and beer.  The statutory difference is that ale supposedly has higher alcohol content.  The Court found TABC's position "laughable."  The TABC was essentially arguing that since no one knew the difference, the Texas Alcoholic Beverage Code could use whatever definition it preferred.  The evidence presented by the plaintiff was to the contrary, that ale actually refers to a specific fermentation process, not the alcohol content. 

The Court found that the defendant, the TABC, failed to present contrary evidence and often failed to even respond to Authentic's arguments - whether through oversight, laziness or tactical error. 

The plaintiff also advanced Equal Protection arguments.  For example, the regulations prohibit breweries from selling their product at the point of production, but allows wineries to do so.  The laws also prohibits brewpubs from selling to distributors and retailers, but wineries and microbrewers can.  See the Texas Alcoholic Beverage Code, Chap. 74. 

The judge found that Sec. 108.01(a)(4) of the Alcoholic Beverage Code unconstitutional.  The court found that Texas may not require malt beverage producers to use the state definitions of "beer" and "ale."  That does not mean the TABC cannot require producers to accurately label the alcohol content of the product.  But, it does mean the producers may use more accurate definitions.  The court limited the state's ability to divide producers and retailers.  That is, any such regulations must be more narrowly tailered to achieve the desired end. 

In strong language for a judge, the court said it was "shocked and dismayed" at the "half-hearted" defense by the Texas Attorney General's Office.  See Judge Sparks' decision here.  But, Texas beer drinkers have reason to be happy....

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 A few months back, the US Army in Afghanistan started tweeting about events in that war zone.  They tweeted when the terrorists attacked civilians and killed women and children.  The Taliban responded with a tweet critical of US forces.  See report of one exchange between the good guys and the Taliban.  In this exchange a few weeks ago, the US Army tweeted, how long will the Taliban continue to put innocent Afghans in harm's way?  The Taliban responded "I dnt knw. U hve bn pttng thm n 'harm's way' fr da pst 10 yrs. Razd whol vlgs n mkts. n stl hv da nrve to tlk bout 'harms way.'"  

You can't make this stuff up..... 

Now, an Israeli law center is threatening to sue Twitter unless they remove the twitter access for groups like Hezbollah and Al-Shabaad.  The Shurat HaDin law center has cited a US Supreme Court case finding it unlawful to support terrorist organizations. 

Sen. Joe Lieberman has also started efforts in the US Senate to require Twitter to block Taliban use of tweets.  See blog post about these efforts to shut down free speech on the internet.

Yes, modern warfare does involve the internet....

 

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I spent twelve months in Iraq.  We taught and coached Iraqis on the finer points of democracy.  I served with some 140,000 other soldiers and service members.  As soldiers, I thought we did pretty well under the circumstances.  For a country long accustomed to strong central governance, there was visible progress on their ability to govern themselves.  But, we could not teach them tolerance.  

I know our presence, our money, our training served as a brake on their worse instincts.  We did solve some problems at the time by asking U.S. Army higher-ups to exert pressure on Iraqi higher-ups.  The U.S. Army is gone, now.  The Iraqis must apply their own brake now.

Sectarian strife is rising again.  See CBS news report.  Someone, surely Sunnis or Al Qaeda, are attacking the Shiites, again, as they simply proceed to holy sites on holy days.  As before, I am sure Al Qaeda or its allies, seek to provoke Shiite reprisal for reasons best known to the terrorists.

Its a place where the tension is just below the surface.  The Sunni-Shiite differences are superficial, in my opinion.  The Shiite revere past Imams.  The Sunnis do not appreciate their clergy in the same way.  These and other reasons separate the two Muslim sects.  They worship differently, yet they worship the same god.  U.S. citizens may not believe it, but many, a great many Muslims are very gentle and decent.  It is unfortunate that extremists of both sects can generate so much violence so easily. 

At a Army Reserve school many years ago, our instructor was a college professor in his civilian life. In his civilian job, he was visiting science colleagues in Malaysia.  In Malaysia, they have a large ethnic Chinese community.  The Malays and Chinese do not get along there, either.  The Reserve instructor, a Lieutenant-Colonel, told us how he was driving somewhere with a Malay colleague.  The Lieutenant-Colonel saw a horrible car wreck.  A man was killed.  He remarked how bad it looked.  His Malay friend somehow recognized the victim as Chinese.  The Malay merely remarked, "good - one less Chinese."  The instructor was describing intolerance.  Not to diminish racial prejudice, he did want to put the issues of intolerance in a world perspective. 

As a civil rights lawyer, I see racial and religious intolerance frequently.  But, thank goodness, our intolerance is nothing like the intolerance we see in elsewhere in the world.  I cannot help but think that our mechanisms, such as the Civil Rights Act of 1964 have done much to relieve the pressure of intolerance and hate.  I left Iraq very appreciative of our country and all that we have.  

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There is a story making the rounds of the internet about a man named Dave who ordered some gaming controllers.  He paid for them and expected to receive a pre-order discount.  Ocean Marketing's Public Relations representative, Paul Christofor, however, had bad news for him.  Paul told Dave via email that he placed an order, the product had to be tweeked, and Dave should just "put on his big boy hat" and wait it out like every one else.  Paul then suggested Dave cancel his order, as Paul could sell the controllers on Ebay for $150 easily.  Paul then added, Have a good day, Dan."

Dave replied, upset and mentioned that Paul displayed poor public relations skills and said he wanted his controllers.  He made it clear his name was Dave and called Paul a b--tch.  

So, Paul responds with a rambling email that says he is 38, has been on the internet since Dave was sperm, and tells Dave he should grow up and do something more productive with his life than play online games.  Dave forwards the email to an online comic strip artist, who Paul had mentioned.  The comic strip artist  said he will cancel Paul's booth at a popular gaming festival.  

Paul responded with more beligerence.  He referred to Dave as "Mike."  Other online contacts learned of Paul's poor marketing skills and tweeted about it.  Paul responded with more caustic comments to them.  And, now, N-Control and Ocean marketing decline to respond to these events.  See story.  

The internet is not for the faint of heart.....

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 What are the most costly Human Resources errors?  The good folks at Delaware Employment Blog mention four:

•  Failure to engage in the interactive process required by the Americans with Disabilities Act

That is, Ms. DiBianca refers to HR's failure to adequately consider requests for accommodation.  The employee need not mention the word "accommodation."  The employee merely need provide sufficient facts so that the employer should understand that accommodation is needed.  Even if the employer is sure an accommodation is not necessary or possible, the employer must still engage in the interactive process to explore the possibilities. 

• Failure to maintain the public-access files for HB1 determinations
• Failure to limit who knows about complaints of discrimination

I am still surprised to see how many employers somehow let the accused harasser learn that s/he is the subject of a discrimination complaint.

• Failure to document employment issues or job performance problems

It takes time, but managers must document properly that they have counseled errant employees. IMO, it is an investment in all employees when you properly counsel one employee. 

See the full post here. 

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I first wrote this a couple of Christmases ago.  It still seems to resonate.  Every Christmas, I look back to my Christmas in Iraq, some six years ago.  I served as a Civil Affairs officer supervising a staff of 3.  In the war zone, everyday is a work day.  On Christmas Eve, we worked a full day.  After duty hours, my unit attended a barbacue put on by our sister Psychological Operations Company.  Our unit theme was Pirates, so we all wore our Pirate accoutrements.  For most of us, that meant simply wearing an eye patch.  But, our unit First Sergeant, supported by a resourceful spouse back home, came in full Pirate regalia, from mock boots to a beard and plastic sword.  Santa appeared, looking quite jolly.  The beverage of choice was some tasty fake beer from Germany.  We enjoyed each other's company.  We were a family away from our real families.  We, some 40 of us, shared a bond forged in training and honed going outside the wire, knowing who we could rely on and who we could not.  We had made it this far, with no casualties.  It was a small celebration of life and duty in a far away country. 

Some of our Iraqi interpreters joined us, not needing to understand the occasion.  Even though they were mostly Moslem, they all seemed to understand the spirit of the celebration. 

Christmas day 2005 was quiet fortunately.  My staff section was able to take most of the day off.  I checked email and then went to Mass.   Mass in a war zone is sublime.  Life is reduced to its essentials.  Church was warm and comforting.  The Christian spirit filled the generic old Iraqi government building.  Light streamed into our little chapel, our rifles at our feet.  The Army priest was one of us, sharing our risks and hopes. 

Later, I joined some friends to watch a movie (Christmas Vacation) set up on a laptop and screen.  We split among the four of us a box of chocolate liquers, the first alcholic "drink" I had had in many months.  

But, the best part was simply being off for much of the day.  No responsibility, no fires to put out, no urgent issues, no staff sections to cross swords with.  It was a lovely day, amidst stress, worry and fear.  

I love Christmas and all it stands for.  But, perhaps no stateside Christmas will approach Christmas in a war zone for its simplicity and purity.  

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The corporate world can be harsh.  Mega Corporation takes over slightly Smaller Corporation.  New management takes over the local sales office.  For unknown reasons, new management decides they need new sales representatives and a new regional manager.  New management lays off seven people total in the local office.  Four out of the seven have just received raises and bonuses. They are all successful employees. 

To avoid the spike in the unemployment insurance rates, they notify each employee in writing that s/he is "voluntary terminated."  Its not true.  These terminations came with no warning.  But, in claiming "voluntary termination," new management make it very difficult for the newly laid off employees to obtain unemployment benefits.  They escort the victims out the door and promise to ship them their personal belongings. This all happens just a few weeks before Christmas.  

And, since the new management gave no reason for the lay off, the newly fired employees cannot claim discrimination.  In Texas, we follow the "at will" doctrine.  An employee can be fired at will for any reason.  The only exception for most people is some form of discrimination.   Since new management provided no reason for the "voluntary terminations," the employees have no viable lawsuit.  They have no clue why they were chosen for termination and not the other 15 or so employees.  If they cannot tell the judge and jury why they were fired, how can they file a lawsuit?

I spent 12 months in Iraq, a place where the terrorists tried to kill us everyday.  I was only there one tour.  The war has lasted several years.  But, I noticed my one Christmas in a war zone, the terrorists were pretty quiet Christmas day.  In Iraq, everyday was a work day.  But, on Christmas, most of us got half a day off or more, since it was relatively quiet.  I have joked in the past that it was nice the terrorists showed a little professional courtesy and let us have one semi-safe day a year.  Hate to say it, but I think the terrorists when I was there were a little more humane than some corporations I could name....

 

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Many web sites today provide a forum for  patients, clients and customers to criticize professionals.  But, some professionals require their patient to sign an agreement in which they agree not to criticize the health care provider.  Now, one dental patient is suing her dentist to overturn the agreement she signed.  See ABA Bar Journal report.  

Robert Lee has sued dentist, Dr. Stacy Makhnevich, saying she would not perform dental work until the patient signed an agreement waiving te right to publicly comment about the dentist. The patient was required to agree that copyright to any public comments would belong to the dentist.  In exchange, the dentist agree to keep patient information confidential. 

Mr. Lee says he signed the agreement while he was in pain.  He was charged $800 to drain a tooth and nearly $4000 for filling the tooth.  The suit claims the tooth filling should have cost $200.  When the insurance claim dragged, Mr. Lee posted online comments about Dr. Makhnevich on Yelp and other sites advising against using the dentist.   Dr. Makhnevich then sought $100/day copyright infringement from Mr. Lee.  The patient wants to retain the ability to post critical online comments about the dentist. 

The lawsuit claims the agreement is not enforceable.  Dr. Mahknevich's agreement promises something the dentist must do anyway, keep patient information confidential.  The agreement used by the dentist was prepared by Medical Justice Services, Inc., a North Carolina company.  The report is that MJS is now advising customers not to use the agreement. 

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Tort reform comes up in Texas every couple of years.  "Million dollar lawsuits are ruining the Texas economy," I have heard off and on since the 1970's.  Tort reform does tend to attract Republican support.  I agree there is always room for improvement, but the claims are often overblown.  The "lemon law king" of Wisconsin agrees.  A Milwaukee lawyer, who styles himself the "lemon law king," has vowed not to represent Repubicans anymore.  See ABA Bar Journal report. 

Wisconisn recently passed a law limiting attorney's fees in that state.  The law was apparently passed in part because Mr. Megna was awarded $150,000 in attorney's fees on a $12,500 damages settlement with a car dealership.  The dealership had been accused of performing unauthorized repairs on a truck.  Republican critics claimed his fee was excessive.  The sponsor of the new statute is Republican. 

Gov. Walker recently signed into law a measure that would cap attorney's fees at no more than three times the damages awarded.  Mr. Megna responded that it is unfair to cap attorney's fees for consumer lawyers, but not for the corporate attorneys who unnecessarily prolong lawsuits. 

What is good for the goose ought to be good for the gander.  If reform works for one side, it ought to work for the other.  But, he is right that so-called "tort reform" always seems to actually mean "plaintiff lawyer" reform.  I do not disagree with Mr. Megna in principle.  But, really, isn't his reaction a bit overblown, too?

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The party hardy guys from France are going home.  The two French brothers were arrested because they broke into the Bexar County Courthouse after a night partying on the Riverwalk and elsewhere.  The initial concern was that they were terrorists - apparently because they were of Moroccan descent and their motive for breaking in was not clear, at first.  See San Antonio Express News report.  As it turned out, they were just party guys who displayed the bad judgment to break into the County Courthouse.  See my prior post.  

The two brothers plead guilty to burglary of a building.  With credit for time served, they will soon be leaving San Antonio and the U.S. 

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On this Veteran's Day, we stop for a minute to honor those who have served in our nation's armed forces.  During the two wars, the day assumes greater significance.  I have written in this space about my friend, 1SGT Carlos Saenz who was killed in Iraq when I was serving there.  I know to some people, the Veteran's day thing and Memorial Day both can seem likes days of sadness and mourning.  Yes, these days call for some mourning.  But, I have to say to those civilians with little or no military experience, it is terrible to lose someone.  But, we gain something, too. 

For most of us, serving overseas in a war zone is one of the most positive experiences we will ever have.  My friend, 1SGT Saenz was a very fine soldier.  He inspired all who worked with him.  If we measure success in life by making a difference, 1SGT Saenz lead a very fulfilling life his last 12 months on this earth.  I do not doubt that 1SGT Saenz and the other 4500 casualties of the two wars are looking down now on us with some satisfaction.  They gave their all up to the very last minute of their lives.  How many of us can claim we truly gave our very best effort in toward some great endeavor?  

Back when I played high school football, the coach was always fussing at us to give 110% every game and every practice.  The thing about serving in a war zone is that 99.9% of the players on our team do give 110% everyday.  My time in the war zone was intense and tense, everyday.  No job was too trivial, no job too small.  It all counted.  I am proud to say that we gave our all.  Everyone of us. 

HBO produced a wonderful series several years ago, Band of Brothers.  It recounted the experience of one infantry company from training in the US to deployment to the European theater.  The show captured the strong sense of comraderie and selflessness in a good military unit.  It was based on the book of the same name written by Stephen Ambrose.  The book captured one detail that spoke to me.  One soldier in the Band of Brothers was "Popeye" Wynn.  Popeye Wynn served with distinction during the war.  He was the soldier who apologized to his commander for getting wounded.  After the warm he returned home to Virginia.  His post-war life did not live up to his wartime success.  He said himself that the war brought out the best in him.  

The remarkable thing about good military service is that it will bring out the best in men and women.  Serving others makes you better than you are.  In Iraq, we served on a team of 150,000.  For a great many of us, it will be best thing we will ever do.  

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 A Stanford management expert reports that jerks and slackers can cost a company in productivity.  See ABA Bar Journal report.  Stanford professor, Robert Sutton finds that negative workers, pessimists, jerks, or angry, nasty people bring the rest of the work force down.  Negative people can reduce enthusiasm and change the mood, reports the researcher.  In one experiment, researchers found that just one slacker or jerk can bring down productivity by 30 or 40%.  

A clothing retailer fired a top-producing salesman but found that overall productivity increased after the difficult personality left.  Sales overall actually increased 30% after the bad apple left.  

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Workplace frustration boiled over in a westside San Antonio restaurant last month.  A waitress reacted badly when her work hours were reduced.  Maria Benavidez expressed frustration at her reduced hours.  She looked at the manager's stepson's paycheck - who also worked there.  Her manager told her to leave and called the police.  Ms. Benavidez then tossed a pot at the manager.  The manager then tried to walk away.  The irate waitress then threw a cleaver at him and threatened to kill him.  The cleaver left a large cut in the back of his head. 

Ms. Benavidez was arrested and charged with aggravated assault with a deadly weapon.  See San Antonio Express News report. 

How do we prevent workplace violence?  My friend and colleague, Dan Schwarz at Connecticut Employment Blog suggests these steps: 

• provide training to employees regarding workplace violence.  Teach employees about the warning signs of workplace violence.
• encourage an open door policy.  Encourge employees to report safety issues or unusual behavior.
• Do not hesitate to contact the police.  resist the urge to try to deal with a "situation" internally.
• Take incidents seriously.  Address each situation on a case-by-case basis.  

See more at Dan's post. 

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Your average county courthouse sees more genuine drama and pathos than any television show can ever capture.  So, perhaps it is not surprising when one courthouse becomes the scene of partying French Moroccans.  Five French citizens of Moroccan background were traveling across country in a rented RV.  After a night of drinking at Coyote Ugly, a Riverwalk establishment, capped off by more drinks at the famous Esquire bar, two of them spied the Bexar County Courthouse.  Apparently, not realizing it was a courthouse, they climbed up the fire escape and broke in.  Coming across a closet in the San Antonio Bar Association offices, they found a couple of the over-sized, wide, straw sombreros used for skits.  The donned the sombreros, played judge in some courtrooms and strolled the halls sipping more beer.  See San Antonio Express News report. 

Litle did they know, that due to Post-9/11 funding the courthouse has alarms and security cameras thoughout.  They were observed during most of their courthouse party.  Within minutes the courthouse was surrounded and the two partiers were arrested.  The three remaining travelers, asleep in their RV, were rousted out of bed and dragged to jail.  

Initially, they were suspected of being terrorists.  Two were even reported initially to be on an FBI watch list.  The FBI became involved as well as the Sheriff's office.  After a few days in jail, authorities decided they were just errant partiers.  But, the two partiers remain locked up accused of burglary and intent to commit criminal mischief.  The three RV'ers worry about their friends in jail and are concerned because they have run out of money and must return home - if they hope to help their friends in jail.  They express affection foe the USA, saying we have a lot of good people here.  The French travelers speak French and Spanish and broken English. 

So, this time the courthouse sees more humor than drama.  Two young Frenchmen learn some valuable lessons.  May life always be this peaceful. 

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 Due to national security issues, this may be the shortest appellate opinion ever.  See opinion in Abdul v. Obama.  Its says simply "Classified opinion not available to public." 

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Six years ago, I was sitting at a desk at FOB Danger, Iraq processing applications for CERP funds.  Periodically, I would go "outside the wire" to look at ongoing reconstruction projects.  I was one of some 150,000 soldiers, sailors, Marines and Airmen serving our country.  We served on a large team, my brothers and sisters in the service.  Now, we lose another, LCPL Ben Schmidt.  Cheered at football games long after graduation, he apparently charmed many.  He designated Texas Christian University to receive his military life insurance money - to set up a scholarship.  He was an extraordinary young man.  See San Antonio Express News report. 

He shunned killing, yet returned for another tour with his fellow Marines.  He went, as many of us did, to look out for our brothers and sisters on the big team.  

Some 140,000 men and women are serving in Afghanistan.  Another 40,000 or so in Iraq.  Men and women die everyday in one of those two wars.  Does anyone notice?  Here in San Antonio, we notice the passing and huge loss of LCPL Schmidt.  But, even here in Military City, USA, will we notice the loss of other Marines next week from some other town?  Some time back, a First Lieutenant asked if we cared.  See my prior post.  He just wanted us to take notice of the troops serving overseas.  I hope we do......

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A Georgia school teacher lost her job over Facebook photos of her holding an alcoholic drink during a European vacation.  A parent supposedly complained and she was forced out.  Now, she is suing for damages.  The district judge granted summary judgment to the employer.  See Atalanta Journal-Constitution report. 

The school teacher, Ashley Payne, claims someone claiming to be a parent sent an email regarding the Facebook photos.  Ms. Payne says there is no evidence the sender was truly a parent.  She claims she was denied the right to a hearing prior to her forced resignation. 

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LCPL Benjamin Whetstone Schmidt was killed in Afghanistan.  he apparently suffered a gunshot wound.  LCPL Schmidt was a sniper for the Marines.  He was the son of Dr. David Schmidt, team physician for the San Antonio Spurs.  He was also the son of Becky Whetstone, former advice columnist for the San Antonio Express News.  Ms. Whetstone was formerly married to Congressman Charlie Gonzales. 

LCPL Schmidt was in his fourth year with the Marines and had planned to return to civilian life.  He graduated from Alamo Heights High school where he played football.  He was described by his mother as charming and charismatic.  He will be buried at Ft. Sam Houston National Cemetery.  See San Antonio Express News report. 

As I have mentioned here before, I have to admire our brave young men and women who continue to step up in a time of war and serve in our military. 

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Some time back, I discussed a case where the defendant in a personal injury lawsyit was trying to obtain continued discovery of a plaintiff's Facebook and My Space entries.  See my prior post.  The Houston trial judge had ruled that after the plaintiff changed her settings to private, the defendant could no longer obtain the entries.  The defendant then sought a writ of mandamus to force the trial judge to rule differently.  

The Texas Supreme Court dismissed the writ on Sept. 9, 2011, meaning they reject the appeal for an unspecified reason.  See Texas Supreme Court site.  So, the trial judge's ruling stands: a party cannot continue to seek social media entries after the party changes her settings to privacy. 

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 Insurgents have killed a San Antonio soldier, 1LT Andres Zermeno, in Afghanistan.  See Defense Department news release.  1LT Zemeno died from wounds suffered in an RPG attack. 1LT Zermeno graduated from St. Mary's University where he met his wife.  He served in the ROTC program and studied psychology.  See KSAT news report. 

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It has been ten years since 9/11.  That was a huge day for millions of Americans.  9/11 lead directly or indirectly to the two wars in Iraq and Afghanistan.  For those of us in the military or formerly in the military, 9/11 marks the starting point of multiple deployments, moves, new jobs, lives changed, and more. Thousands of service members have been physically and mentally wounded.  The San Antonio Express News describes some of the wounded warriors here.  

When I was in Iraq in 2005, we served with soldiers from the 42d Infantry Division, New York National Guard.  Many of those soldiers had been on active duty since 9/11.  They were activated immediately after 9/11 and stayed on active duty through 2005.  They secured New York City from possible additional attack and they combed the rooftops of the city for fragments of persons and belongings from the twin towers attack.  The 42d understood the 9/11 attacks in ways the rest of us never will. 

The 42d has a history. Their division patch or emblem is a rainbow, worn on the left sleeve.   They lost half their division in World War I.  The story goes that the Division chief of staff at the time, Douglas MacArthur, future WW II general, cut the patch in half, to commemorate the lost half.  To this day, the 42d ID wears half a rainbow on its left shoulder.  In 2005, they had more reason to remember.  So, their slogan in 2005 was "Rainbow, never forget."  

Slogans in the military are officially something a soldier says to another when rendering a salute.  It becomes a greeting, a closure to meetings, a summary of what the military unit believes in.  Over time, I came to appreciate the meaning of the 42d ID slogan more and more. 

So, on this day, let us join the 42d in saying, "Rainbow, never forget." 

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A worker at Ashley Furniture was killed here in San Antonio in May, 2011 by a co-worker.  Now, the family of Aileen Harbridge has sued her former employer.  See San Antonio Express News report.  The suit claims that the killer, Jose Martinez used a pistol he borrowed from a store manager.  There had been a history of violence with Mr. Martinez.  He had, says the plaintiffs, been moved from store to store due to problems with his behavior.  Ms. Harbridge was killed at the DeZavala store.  

The deceased worker had even quit for a time due to the conflict with Mr. Martinez.  She returned only when managers assured her she would be safe.  Obviously, management was wrong. 

This is a good time to discuss what an employer can do to prevent wrokplace violence.  Connecticut Employment Blog suggests a few steps:

• Take each incident of potential violence or anger seriously
• Do not hesitate to contact the police
• Provide training to employees, so they can understand the warning signs of work place violence
• Maintain an "open door" - listen to your employees when they complain about possible incidents or strange behavior

Employers should also consider:

• Health and safety committee meetings with employee participation
• Consider using metal detectors to prevent the entry of weapons
• Place mirrors at key hallway intersections
• Provide information on multicultural diversity and racial sensitivity
• Draft a violent incident response plan

OSHA has some helpful information on its website.  But, as Dan Schwartz mentions in a later blog post, an employer can only do so much to prevent a deranged or evil person rom committing evil acts.  See August, 2010 blog post. 

 

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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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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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In the law business, you really do see it all, eventually.  The City of Dallas sought an order closing a church.  The "church" apparently practiced swinging.  A church known as the Playground was closed because its outreach consisted of hosting swingers' parties.  See Dallas Morning News report.  The owner, Wyakie Glenn Hudson claims to be an ordained minister.  Judge Molberg granted the City's request. He closed the Playground one week after another judge refused to close a dance hall owned by the same man known as the "Darkside."  That suit is apparently still pending. 

After Judge Molberg granted the order closing the Playground, "Pastor" Hudson said that city officials did not agree with his outreach. 

The Dallas City Attorney said detectives found no evidence of religious use when they inspected the facility.  They did find topless dancers and porn movies playing on flat-screen TV's.  Access to the Playground is free for women but $50 for men.  For an additional fee, "church-goers" have access to beds, condoms, and more porn videos in a separate room.  

The church has a certificate of occupancy as a church.  I presume that certificate may soon be revoked.....

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I forget where I first heard this sage advice: do not mess with teachers in the classroom, judges in the courtroom or police in the streets.  Now I am a lawyer and know all too well, do not disrespect judges in the courtroom.  It only leads to trouble.  One Houston lawyer with a large law firm, Littler Mendelson, was reminded of this after he filed suit over alleged civil rights violations.  His client claimed the civil rights of her daughter were violated  when a client tried to become a high school cheerleader.  

The lawsuit was based on 42 USC Sec. 1983, a civil rights statute.  The suit was dismissed.  The plaintiff appealed.  The plaintiff's lawyer said unkind things about the lower court decision written by a Magistrate Judge.  The court of appeals in a decision written by Judge Jerry Smith responded: 

“Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”  He described the theory behind the suit as "flimsy."  See ABA Bar Journal report. 

It is very rare for an appellate judge to start out so critical.  But, he did not end with that.  He mentioned later in a footnote:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

That is as personal an attack as occurs at the appellate level.  Judge Smith was clearly perturbed.  Magistrate Judges are not appointed by the President.  Appointed federal judges are known as "Article III" judges.  Magistrate Judges are hired by the appointed Article III judges and essentially serve as assistants to the appointed judges.  The Magistrate Judges typically hear motions and some trials.  They serve for ten years and are generally well-respected jurists in their own right. 

The judge was criticising the statement by the Littler Mendelson lawyer about the Magistrate Judge.  The lawyer had said that because he is not an Article III judge, his "incompetence in applying general principals [sic] of law are [sic] extraordinary."  Judge Smith said this sentence was unlcear, but it seemed to be making an unjustified attack on the magistrate judge.   The plaintiff's lawyer attacked the Magistrate Judge.  Judge Smith responded. 

I tell all my clients and anyone else interested that going to court is much like a drama presentation in a theater, everything we do is watched, scrutinized and analyzed.  All trial lawyers know this.  but, on this day, I think this one lawyer from one mega firm forgot this important lesson.  

 

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A soldier from San Antonio was killed in Iraq.  SGT Steven Talamantez was killed by indirect fire (mortar) in Maysan province of Iraq, a normally less violent province.  He was assigned to the 1st Cavalary Division out of Ft. Hood, Texas.  A graduate of McCollum High School in 1995, he worked in construction before joining the Army in 2008.  He left a wife and two children.  He said he loved the soldiers with whom he served.  See San Antonio Express News report. 

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During the 1960's many federal judges had to seek safety because they enforced constitutional law regarding integration in Southern states.  These Southern judges did not necessarily advocate integration.  Instead, they were simply fulfilling their duty to enforce the law as it had already been decided by a higher court. 

Our own Judge Fred Biery has received many threats since he issued an order prohibiting prayer at a Medina High School graduation.  See San Antonio Express News report.  US Marshalls have placed him on 24/7 protection.  

I find this all ironic since based on what I read in the Express News, it appears to me that Judge Biery complied with the law on prayer in schools and he actually advised the school district on how to make their prayers more in line with the law.  Mention your personal belief, without calling on others to believe as you do, he advised.  He also suggested they avoid the words "benediction" and "convocation."  The school district took his advice and they later succeeded when they appealed to the Fifth Circuit Court of Appeals. 

Judges very rarely issue legal advice.  Judge Biery was clearly trying to help the plaintiffs.  For that, he must fear for his safety.  That is an issue in Iraq.  The judges there too often bend to pressure from well placed persons regarding terrorists.  Don't even mention Mexico and the state of their judiciary.  

We should be thankful for judges like Fred Biery.  I have no idea what Judge Biery's theology is.  But, I am sure he simply felt he was enforcing the law as it had already been decided by a higher court.  That is his duty as a US District Judge. 

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SPC4 Nicholas Hensley was injured two weeks ago when he stepped on an IED (improvised explosive device) in Afghanistan.  He died from his injuries.  He was on his fourth deployment.  A Judson High School graduate, SPC4 Hensley was married and father to three daughters.  He loved playingwith his children.  See San Antonio Express News report. 

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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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 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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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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Clients and potential clients sometimes ask me about possible conflicts of interest.  For purposes of a lawsuit, a conflict of interest occurs when someone has a financial conflict of interest.  That "someone" is usually the lawyer for one side or the other.  For example, if I own partial interest in a company but then represent someone in a lawsuit against that company, I would have a clear conflict of interest.  That is, I would have a financial interest in the lawsuit losing. 

Something similar applies to members of the Texas legislature.  State legislators are prohibited by the Texas Constitution from voting on statutes in which they have a financial interest.  Gary Elkins, R-Houston, does not understand conflicts of interest.  Mr. Elkins owns a payday lending business with twelve locations.  When a proposed blll came before the state legislature, he spoke against it.  When he was asked if he had a financial inerest in the bill, he replied that he knows a lot about the business - apparently suggesting that his opinion had some value regardless of his financial interest.  See San Antonio Express News report.  

But, that is the point of conflict of interests: your opinion has little value because it is tainted by finances.  His interest is clear, so we cannot take anything he says at face value.  Just as if a lawyer represents a plaintiff against a company in which the lawyer is a partial owner: whatever the lawyer does will be tainted by his partial ownership interest. 

Mr. Elkins has brought disrepute upon the state legislature.  Eventually the bill failed.  It would have imposed modest requirements on the payday loan business.  I just hope the other legislators understood that Mr. Elkins was either disingenuous or has no understanding of what a conflict of interest is. 

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 I published this last year.  A tribute to a friend and colleague we lost in Iraq. 

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  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 in 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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 The Texas legislature sent a bill to the governor for his signature that would allow employees to take guns to work.  The bill allows workers to keep any guns they are legally allowed to possess in their vehicles at work.  The bill's sponsor, Rep. Tim Kleinschmidt, R-Lexington, said many companies do not understand the sporting culture in Texas that leads many Texans to leave guns in their car.  The bill extends immunity to employers regarding any guns brought by an employee. 

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Employment and Labor Insider discusses several law myths at her blog.  Iowa employment law blog has his take.  The myths I hear frequently here in San Antonio, Texas include:

"At will" employment means an employee can be fired for anything."  Texas is an at-will state.  An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc.  So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old.  The anti-discrimination statutes provide several exceptions to the at-will doctrine. 

"Probation periods means an employee can be fired for anything."  Not quite.  A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc.  See above paragraph. 

"Employees have a right to a copy of his/her personnel file."   That depends on whether the employee is public sector or private.   I have found no authority in Texas law saying that employees of private businesses can claim a copy of their personnel file.  As a public sector employee, an employe's rights are governed by the Freedom of Information Act for federal employees and the Open Records Act in for state employees.  I have looked but have found no authority for a private sector employee to obtain a copy of his/her personnel file.  See my prior post on this topic. 

"Employees get periodic breaks during the work day."  I was told as a young warehouseman that we had a right to a 10:00 o'clock break and another at 3:00 pm.  The times could vary slightly.  Ever since, I have looked for the authority for those breaks.  There is no such authority.  Most likely, that is or was part of the influence of collective bargaining agreements.  CBA's do often provide for such breaks.  But, for non-union employees, there is no authority for a mid morning break and a mid-afternoon break.  The Texas Employment Commission says there is no authority for such breaks.  The federal regulations do not even require a meal break.  Regulations do encourage work places to provide rest breaks, but they are not required.  See regulation. 

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 Facebook has become such a part of the daily lives for many of us that we post without much thought.  Perhaps, that is why one Guadalupe County (near San Antonio) prosecutor violated a court order.  Assistant District Attorney Larry Bloomquist posted an update on a manslaughter trial he was prosecuting.  Mr. Bloomquist had posted an update on Facebook when the trial first started.  The presiding judge then warned both parties against anymore Facebook updates.  See San Antonio Express News report.  

But, when the jury returned a verdict against the defendants, Prosecutor Bloomquist posted the jury result.  "Happy ending," he added.  District Judge Gary Steel was not happy. He found Mr, Bloomquist in contempt and fined the prosecutor $400. 

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About a month ago, a lawyer in Washington DC represented a man charged with a felony. Apparently, the lawyer ran into some problems.  The judge berated him for being inexperienced and unprepared for the case.  A private investigator claimed that the lawyer told him to trick a witness into testifying that she did not see the defendant at the murder scene.  The judge declared a mistrial. The incident became the subject of a Washington Post story.  The story ran in the ABA Bar Journal. Several legal blogs discussed it.  

Well, now that lawyer, Joseph Rakofsky, has sued everyone involved.  He has filed suit in New York Superior court against the Washington Post, the ABA Bar Journal and dozens of lawyers who dared to discuss his case in public.  See Petition here.  Mr. Rakofsky was a 2009 graduate of Touro Law School.  Perhaps, some law school snobbery was at play here.  In any event, he was much criticized in the blogosphere.  He sued persons such as J-Dog84@yahoo.com, Accident Lawyer, Thomson Reuters, the large legal publishing firm, Tarrant84, the University of St. Thomas Law School, and other more traditional defendants.  He sued some 74 defendants, all apparently because they criticized him and, as he alleged, repeated mis-statements about his felony case.  These defendants reside and work in many different states and the District of Columbia.   The petition is some 70 pages long with few details regarding the alleged defamation by the 74 defendants.  The petition mostly contains ample detail explaining why he did what he did during the trial. 

Blogging is still a new creature.  Many still confuse a blog with a news source.  We do not report news.  We comment on the news.  My comment regarding this suit is he must have a large budget for effecting service on Defendants.....

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A city planner, Trent Cantrell, for the East Texas town of Lufkin was fired.  He had tweeted that the city was an "armpit."  Earlier, he had tweeted that he was waiting for the heat to leave - of course, "Deep East Texas would still be a sh**hole," he said.  The City Manager said they do not condone such comments.  See San Antonio Express News report. 

Think before you tweet.....

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You know its bad when a judge orders a debt collector not to contact a debtor, her friends or family on Facebook.  Melanie Meacham filed suit over MarkOne Financial's debt collection practices in Pinellas County District Court - near Orlando, Florida.  See ABA Bar Journal report.  MarkOne declined to respond, but stated last year apparently when the lawsuit first started that it resorts to Facebook only when conventional means of contacting a debtor have failed.  You know they must have contacted a bunch of folks before a judge orders them to stop.....

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 A Dallas personal injury firm has seized on the social media revolution to market its Facebook page.  Eberstein and Witherite offered iPad's to a lucky few and t-shirts if the participants would "like" its Facebook page and submit photos of themselves wearing its 1800 Car Wreck t-shirts.  See Texas Lawyer report.  Clicking on the link to win the iPad takes the participant to the firm website.  The site has a page where the "likers" can describe their recent car wreck and learn the value of a possible case.  

As of early April 14, they had 463 Facebook "like's."  You gotta love the internet....

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 A former Hondo, Texas resident was killed in Afghanistan.  Assigned to the 10th Mountain Division, SPC Charles "Chaz" J. Wren was killed in Nimroz Province in southwestern Afghanistan.  SPC Wren spent most of his life in Hondo and graduated from Hondo High School in 2004.  He was known at Hondo High for wearing a cape to pep rallies and getting the crowd excited.  See San Antonio Express News report. 

He was killed along with two other soldiers by an IED (Improvised Explosive Device).  SPC Wren lead a difficult life.  Orphaned early, he was raised by his grandmother.  He was known for his sense of humor. 

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 Barratry is generally defined as a lawyer illicitly seeking clients.  A lawyer cannot solicit clients directly.  So, one state legislator has decided the best way to avoid barratry is to allow more lawsuits.    Sen. Robert Duncan, R-Lubbock, has proposed a bill in the Texas legislature that would allow civil lawsuits against persons (ie, lawyers) who commit the offense of barratry.  See Texas Lawyer report. 

Under the terms of his proposed bill, a victim of barratry could sue the offending lawyer and collect attorney's fees, costs of the new lawsuit and $10,000 as a civil penalty.  The current offense of barratry only applies to personal injury lawsuits.  But, the proposed bill would widen the offense to all lawsuits. 

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I believe you can often discern the better places to work just by walking in the front door.  If employees are willing to chat with a visitor or assist with questions beyond their normal area of expertise, that is probably a positive working environment.  Such a workplace has high morale.  But, if the workers are resistant or guarded in their responses, then that work place probably has low morale.  What happens when some 23 employees take a test and 18 of those 23 cheat on the test?  What does that say about that particular working environment?

23 Bexar Metropolitan Water District took a required test for a Class C water distribution system operator license.  The test is administered by the Texas Commission on Environmental Quality.  It is a standard test for for large municipal water systems.  Achieving the Class C certification means the employee understands how to work on water lines without contaminating the water system.  See San Antonio Express News report.  TCEQ investigated possible cheating and found some test-takers had the answers to a recent test.  

TCEQ decided to void all the tests.  Everyone must re-take that test.  Bexar Met fired 18 employees for involvement in this cheating scandal.  

Bexar Met continues to have many problems.  

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The national unemployment rate has dipped below 9%.  It now stands at 8.8%.  See Workplace Prof report.  This decrease represents a trend of continued, slight improvement over several months.  There still remains many long-term unemployed workers.  Unemployment benefit claims have dropped.  So, we are experiencing slight improvement for a few months, now. 

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 So, Rev. Terry Jones finally did burn a Quran at his Florida church just a couple of weeks ago.  Now, Afghanistan is rioting and has killed several United Nations workers - only because this particular mob could not find any Americans handy.  Reports are that the Afghans will attack US bases.  No kidding.  I wish I could say this was a surprise.  Afghans rioted when the Danish newspaper published a cartoon about Mohammed.  They rioted when it was reported that soldiers at Guantanamo flushed a Quran down the toilet.  

When I was in Iraq, we knew there would be a spike in violence simply when issues over Israel developed.  GEN Petraeus specifically asked Pastor Jones to not burn the Quran.  It is unfortunate that some US citizens have forgotten about our soldiers in Afghanistan and Iraq and have knowingly taken steps which increase their risk.  Pastor Jones has displayed his irresponsibility and callousness toward out service members

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A Lubbock, Texas lawyer has filed suit against against the Texas Department of Insurance, Worker's Compensation Division because the Texas Dept. of Insurance sent him a "cease and desist" letter.  The TDI had sent John Gibson a letter warning him to stop using the words "Texas" and "worker's compensation" in the web address.  Mr. Gibson operates a web site called www.texasworkerscomplaw.com.  The TDI accused Mr. Gibson of violating a provision of the Texas Labor Code which prohibits use of the words "texas" and "workers compensation" in connection with advertising and solicitation for business.  In his lawsuit, Mr. Gibson argues this provision is unconstitutional as a violation of the First Amendment.  See Texas Lawyer report.  

I am sure that provision must date from the bad ole days of workers compensation litigation, which at one time was lucrative.  Workers compensation was the subject of much advertising as late as the 1980's prior to so-called tort reform.  Now, very few lawyers practice workers compensation law.  More importantly, blogs have been seen by most observers as not advertising and more as an educational tool.  For example, law firm news letters are exempt from the advertising rules because they are seen as more educational than solicitations for business. This will be an interesting lawsuit as it explores the nature of blogs. 

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The Supreme Court says it is permissible to protest at funerals for dead service members with very provocative signs, such as "You are Going to hell," "Thank God for dead soldiers" and worse.  See Yahoo news report.  As an Iraq veteran, I would like to "free speech" that pastor in the face.  He is deliberately trying to incite a reaction from those attending the funeral for those killed in Iraq and Afghanistan.  But, I also know from several published reports that in this case, the father did not see the signs at the funeral.  It was only weeks later that he saw the signs in various news reports.

It was still extremely upsetting for him to see hateful signs directed toward his son's death.  There is a rule of law that 1st Amendment would not trump "fighting words" - words that have no value other than inciting riot or violence.  I had hoped these signs would rise to that level.  I have not read the decision but am sure the fact that the father did not see the signs until weeks after the funeral were an important factor.  

Whatever.    I would still like to "free speech" that pastor in the kisser...... 

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If anyone has crazier lawsuits than the US, its the Brits.  In this post by Workplace Prof, we see a picture of an employee who was caught stealing money from his employer.  The employee made out a check to himself drawing on company funds and cashed it.  Do not try this at home, but the employer then paraded the miscreant through the town and to the police station displaying a sign proclaiming his thievery.  The owner of a flooring business, Simon Cremer, paraded Mark Gilbert through the streets of Wiltham in Essex, U.K.  

So, of course, Mr. Gilbert then later sued Cremer for humiliation and two years of lost earnings.  The case settled with Cremer paying 5,000 pounds in damages and 8,000 pounds in court costs.  

I think such a lawsuit would not do nearly that well, here.  Many members of the juries I have heard from would have no tolerance for a thief - despite the perp parade.  But, I would advise any employer not to take that chance.....

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I love lawsuits and everything a lawsuit represents.  Anyone can file any lawsuit anytime.  Subject to a few consequences for those of us who get too crazy.  In many countries, that is not the norm, at all.  

In Los Anglees, one restuarant customer filed suit because he was forced to eat rice at a sushi restaurant.  The restaurant, Studio City offered a deal: $28 for all the sushi you can eat.  David Martin liked that deal, but he only wanted the raw fish (sounds so yummy...).  So, really, what he wanted was the all you can eat sashimi, which is just raw fish.  Mr. Martin is diabetic and must restrict his carbohydrates.  But, the owner Jay Oh insisted he could not fill up only on the fish.  See Los Angeles Times news report.  

Mr. Oh offered to prepare two orders of sashimi for $25, but Mr. Martin was not satisfied. He left the restaurant after being charged ala carte for the sushi and a green tea.  

Mr. Martin sued for discrimination on the basis of his disability, Type 2 Diabetes.  He claims $4,000 in damages.  Mr. Oh says he will fight to the end.  The plaintff's attorney says they do not seek money but a chnage in policy at the restaurant.  

Mr. Oh says he would go broke offering endless raw fish and no rice for $28.  But, I am wondering why people want to eat raw fish and then sue when they are prevented from eating raw fish....

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Some plaintiff clients want "revenge" of some sort when they file suit.  That is, they see the defense lawyer pursuing some outrageous litigation tactic and the client then asks me what will I do in response?  The client wants some comparable tactic.  Tit for tat.  You see this in Allen Sanford's litigation mess.  He recently field suit against a dozen federal agencies, the FBI, the SEc, etc.  See Texas Lawyer report.  Mr. Sanford accuses these agencies of unfair and abusive law enforcement tactics.  Mr. Sanford, of course, is the former high-living investment counselor who is accused of swindling his clients out of billions of dollars.  

His lawyers surely tried to dissuade him from this suit.  But, if they are being paid by the hour, their persuasive attempts may have been brief.  Federal courts see these lawsuits with some frequency, although not always from someone with Sanford's resources.  Many pro se clients file similar suits. Such suits are usually based on nothing more than speculation.  These retaliation suits do nothing more than make it clear that they are scared. 

It is better not to give in to our "inner Mongo" as James McElhaney, well known writer of litigation tactics would say.  See ABA Bar Journal article.  Judges are suspicious of counter-suits.  Counter-suits naming a dozen different federal agencies go to the head of the list of apparently frivolous lawsuits.  

In one lawsuit eons ago, the defense lawyer asked several questions about personal issues regarding my client.  The personal issues had no relationship to whether he suffered discrimination at work.  None.  The questions were designed solely to frighten my client.  Client asked me to retaliate in kind.  He thought we could do the same thing to one of the managers.  i told him, no, let the defense lawyer do this at trial and see how the jury responds.  As Mr. McElhaney explains, the jury will mot see this as fair.  They will only see tit for tat and become disgusted with both sides. Resist the call of your inner Mongo when you are in the midst of a lawsuit.....

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San Antonio Airman Corey C. Owens died in a non-combat related incident in Iraq.  He was assigned to Laughlin AFB in Texas and listed San Antonio as his home town.  See news report. 

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Yes, you can get fired for anything in an at-will state.  A Green Bay Packer fan was fired in Chicago because he wore a Packer tie to work.  See report.  He wore the tie to his job selling cars at Webb Chevrolet shortly after the Packers beat the Bears in a playoff game.  The dealership is involved in promotions with the Bears and took offense at the tie. The General Manager told him once to take it off.  The salesman thought he was joking.  The GM told him again later and then fired him when he did not take off the tie.  The car salesman is a long-time Packer fan.  He also wore it in honor of his 91 year old grandmother, a Packer fan, who had died that month.

The GM said he was not aware of the grandmother's death.  But, the GM also never asked.  And, now he must deal with all the negative publicity. 

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 SPC4 Omar Soltero was killed in Afghanistan recently.  He was assigned to the 10th Mountain Division and was serving in Wardek Province in Central Afghanistan.  He was killed by an Improvised Explosive Device (aka "roadside bomb").  See San Antonio Express News report.  His parents live on the northeast part of town.  He was in a relationship with another soldier and leaves behind two children. 

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Social media is that new frontier we always hear about - or one of them anyway.  Some lawyers are still trying to understand the limits.  One lawyer in South Florida was upset about a judge, who he believed was circumventing the speedy trial requirements.  So, he posted a blog entry about a judge.  The judge would ask defendants if they would be ready for trial sooner than normal - apparently trying to avoid the speedy trial law.  The lawyer, Sean W. Conway, did more than discuss trial tactics.  He blastd the judge, making some personal attacks on her.  The Florida Bar Association found that the the lawyer's blog entry violated Florida ethical rules regarding public comments about a judge's integrity.  See ABA Bar Journal report.  Mr. Conway opposed the sanctions on the basis of the First Amendment.  The Florida Supreme Court rejected his argument.  The court issued Mr. Conway a public reprimand and a fine of $1250.  

And, we already know about a judge in North Carolina who had "friended" a lawyer on Facebook who was appearing in a case before the judge.  The two exchanged comments about the trial on FB during the trial.  That judge, Carleton Terry was issued a public reprimand.  See my prior post about this case. 

And, another lawyer in Illinois lost her job with the Public Defender's office because she blogged about cases she worked on.  Lawyers should know not to reveal confidential information acquired from clients. 

These rules are not new.  The social setting is new.  The intimacy of online communication suggests a level of privacy that does not exist.  The best rule of thumb is to assume anything you publish on the web will be viewed by everyone.  So be careful out there.....

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Video from the scene of the Tuscon shooting shows that Judge Roll died trying to protect an aide, Ron Barber.  According to videotape, the shooter, Jared Loughner, walked straight up to Congresswoman Giffords and shot her.  The shooter then starts shooting indiscriminately.  Roll pushes the aide down out of the way.  As he does so, judge Roll is shot in the back.  Roll then falls on Barber, shielding the aide from further rounds.  See ABAr Bar Journal report. 

Judge Roll was appointed by Pres. George H.W. Bush in 1991.  He was a devout Catholic.  He was on his way back from Mass on Saturday when he stoppd by the gathering at the Safeway supermarket in Tuscon.  

During his career, he has issued some well-known rulings.  He was one of several district court judges to find that provisions of the Brady handgun law violated the Tenth Amendment.  Later, in 2009, he allowed a lawsuit by MALDEF (Mexican American Legal Defense Fund) against a local rancher to go forward.  The lawsuit was filed on behalf of 16 Mecians who claimed that a rancher held them at gunpoint and threatened them.  Because of this ruling, Judge Roll then became the subject of numerous talk shows.  He and his family were threatened.  

When some of those who made the threats were identified, he declined to press charges.  

Judge Roll died a hero.  

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Judges are usually very polite in the courtroom.  A few are cantakerous and pushy.  A very small percentage are outright abusive and tyrannical.  US District Judge McBryde in Ft. Worth is notorious for issues.  He was suspended from "judging" in 1996 for a year by the Fifth Circuit Court of Appeals.  An unheard of sanction from other judges.

Now, Judge McBryde has sanctioned three lawyers and recommended criminal prosecution regarding two lawyers who questioned his impartiality.  See ABA Bar Journal report.  The judge reportedly asked the plaintiff lawyer if he was being paid contingency and if so, he would not get a "house" out of the litigation.  Judge McBryde says he meant the comments as a joke.  

I have heard the stories about Judge McBryde.  A lawyer once needed to postpone a hearing because his wife would be in surgery.  The judge simply said no.  He is the judge lawyers from all corners wish to avoid.

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Dan Schwartz, an employer's lawyer, wrote a piece about social media.  He presents talks on social media and is often asked "is it legal" to "friend" a subordinate?  Dan replies, and I agree, that it may be legal, but it may not be prudent.  A teacher who "friends" students and employers who friend employees can present awkward situations.  

Requests by the employer to "friend" a subordinate could be misinterpreted and could cause the employee to feel pressure.  As Dan says, it is better to set these parameters now than after a lawsuit. See Dan's post for more information. 

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Mike Maslanka, who pens a blog oriented toward employers wrote a helpful post on terminating employees.  Mike is well read on management and leadership techniques.  He suggests the following:

1.  Conduct the termination meeting at the employee's work space or office.  He explains that the manager can get up to leave after completing the difficult task.  The manager can "escape" when the meeting concludes.  And, going to the employee's space also suggests some level of respect for the employee.

2. It may be unethical to keep an employee in a position in which they are not a good fit.  You, the manager, owe it to the employer to not retain folks who do not fit.  It is as much a strain on the employee as it is on the employer. 

3. Be patient.  The manager has had time to adjust to the new reality, the employee has not.  Give him/her time to digest what you have said.  They say a termination should never be a surprise.  But, truly, it almost always is a surprise on some level.  No manager should schedule an appointment immediately following a termination meeting. 

4. Allow the employee to retain some dignity.  As Mike explains, that means different things to different people.  To Mike, it means do not show false empathy.  Do not say "I know how you feel" unless you have been fired yourself before.  The best thing you can do is simply allow the employee some time to compose him/herself.  Silence is golden and respectful. 

5. Mike also suggests you look at yourself.  Ask yourself how and why you hired the wrong person. In the Army, we conducted "after action reviews" after every major training exercise.   The goal was to analyze the good and the bad.  Every termination, just as every major employment issue, should result in some improvement to the organization. 

If every employer followed these tips, lawsuits would decrease dramatically.  See Mike's post for more information.  

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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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 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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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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 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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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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On this day of thanks, I ask that we think about 150,000 Americans serving in Afghanistan and 50,000 serving in Iraq.  They work everyday.  They risk their lives everyday for us.  Some of us may question the value of the two wars.  Some soldiers, marines, airmen and sailors might agree.  But, they serve all the same.  They perform their duty everyday not for fame, not for reward.  Recognition is important to them, but that is not why they serve.  They perform their duties because they feel a strong duty toward their fellow soldiers and toward us, the folks back home. 

Give thanks that after 235 years, we still have soldiers and service members who still step forward, who still do their duty even when they are not always remembered as closely as we could.  We are fortunate to have the traditions and culture we do.  Many other countries lack that sense of duty.  Iraqi service members go home for about a week every month to take home their pay.  Many do not return to duty.  When they are on duty, many turn away from challenges with a shrug and a barely audible "en sha'ala."  

It is said that part of the reason for the fall of the Roman empire was that after hundreds of years, the Roman citizens lost their willingness to fight for their country.  The army was populated mostly by non-citizens who in the end, would not resist the invaders.  if so, we are a long way from that. 

I served briefly in a drill sergeant unit.  I loved seeing those young, fresh faced soldiers taking on much more than they really understood.  They still volunteer.  They reflect us and what we have made of this wonderful  country.  Let us give thanks. 

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Yes, you can be fired for reasons beyond your control.  I tell that to potential clients all the time, but they do not seem to believe me, sometimes.  One man, Sam Salazar, dated a woman for two years before they broke up.  He started caling her so often at work that she was fired.  He then started calling her at her new job sometimes more than a 1,000 times a day.  He would tell whoever answered the phone to tell his former girlfriend that he loved her.  See San Antonio Express News report. 

The woman applied for a protective order from the Bexar County District Attorney's office in April, but was turned down.  That probably means she asked the DA's office to seek a protective order for her.  But, the DA's office did send Mr. Salazar a letter warning him to quit calling the woman or face criminal charges.  

Sam Salazar continued with his calls even at her new job.  So, he has been arrested for telephone harassment by the San Antonio Police department.  

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Its hard to believe, I know, but some people do not like lawyers much.  One man has been wearing a pig costume and protesting in front of the state bar headquarters in Austin.  See post.  He says he wants the rules changed so that "arbitration" (apparently meaning mediation) comes before discovery. He says he spent over $200,000 on legal fees in a dispute over a parcel of land worth $4,000.  He complains that he spent $40,000 or so before going to what he calls arbitration, where the case did not settle.  He finally lost his case on appeal.  He stayed in the lawsuit only so he could get his attorney's fees back (which would have only been possible if he had won or settled). 

Eric A. Anderson has also protested at the Travis County Courthouse.  He will not name his lawyer. 

I used to do collections work.  I would recommend to my client that any amount below $5,000, they should file on their own in Justice of the Peace court.  And, of course, once my attorney's fees became one-half or more of the amount owed, it was time to consider whether this was a debt worth pursuing.  I would discuss frankly with my  client how bad did they want to sue this person.  Quitting a lawsuit is not easy, sometimes.  We get "worked up" in the middle of a lawsuit.  But, we need to always remember that every lawsuit is essentially a business decision.  Cost benefit analysis must apply. 

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Forbes magazine offers us examples of things we should not say at work.  See Forbes article. Topics to avoid include sex, religion and politics, of course.  These are topics that can get folks riled up easily.  A thoughtless comment, seemingly harmless banter can linger.  According to one survey, only one-third of senior managers felt comfortable discussing their political views with colleagues. One lady remembers when she slipped up.  The boss, a senior manager, proudly announced at a meeting that he had voted for the Colonel, referring to Oliver North running for the Senate in Virginia. Without thinking, Alison Risso responded, "I pray to God you mean the one who sells chickens." Ms. Risso did not last long at that job.  

Beware of off-color jokes.  Be very wary of humor based on ethnic or gender stereotypes.  Never, ever discuss or "joke" about committing any sort of violence at work.  Do not discuss in any great detail operations, surgeries, or treatments.  

Don't say "that's not my department."  if you are not willing to invest five minutes into an issue for your boss or co-worker, then you have demonstrated your lack if interest in your job. 

Workplace morale requires some light topics. Workplace communication is greased by easy conversations and harmless banter.  I remember the Lieutenant-Colonel who insisted that lower ranking persons stand at parade rest in his office, with no hands in their pockets. He would not allow his staff, officer or non-commissioned officers, to sit in his office when providing important information.  You know that particular Lieutenant-Colonel was often out of the loop on critical developments in our work place.

Or, as the Forbes article explains, one new CEO had trouble getting his employees to follow his directions. When the consultant met with him, he told her up front that he did not care what his employees thought of him, so long as they did what he told them.  The consultant and author ("Shut Up and Say Something") recommends don't tell employees "just do it" or "you don't know what you are talking about."  Even in the Army, or perhaps especially in the Army, that does not work. 

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 If you are going to quit, get ready.  Clear your office of embarrassing computer files, personal papers and anything else you want to keep.  As the ABA Bar Journal advises lawyers, once you resign, your employer may very likely escort you out of the office immediately with nothing more than a promise to send your belongings later.  See Bar Journal report.  The advise is for lawyers, but it applies to any white collar employee.  Many employers now escort departing employees out the front door.  

Do not solicit clients, says the Journal, before departure.  Just as it would be wise for everyone else to not solicit customers before departure.  Beware of any non-compete agreements.  

If the employer has an exit interview, do not nitpick.  Try to address systemic issues.  Try to treat your departure as a business decision, despite the many events that may have lead up to it.  

Accept offers to meet for lunch or coffee from co-workers.  Do not turn these social sessions into gripe sessions.  Whatever the circumstances of your departure, turn it into a positive event. 

Remember former colleagues' birthdays.  Send them thank you notes for their help with your career. 

The Bar Journal does not mention this, but also, see a lawyer of you think you may have grounds for a lawsuit.  Even a lawsuit, in the end, is a business decision, too. 

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SSGT Giunta is awarded the Congressional Medal of Honor.  See news report.  He teared up when he described his receipt of the award.  He said he did not deserve it and that he was only a "mediocre" soldier.  I am sure that he does deserve it.  But, it is true that he did what many soldiers would have done and have done.  

Civilians who have never served do not appreciate the selflessness that serving in the armed forces instills.  We are taught to be a member of a team and to not seek personal recognition.  The few soldiers who do seek personal recognition are often shunned or become the subject of jokes.  "There is no 'I' in the word team."  How many times have I heard that during training or in Army schools??   

When I was young, I remember a few World War II vets who shunned the spotlight. Certifiable heroes, they nevertheless avoided recognition.  Now, I understand why.  To seek what we were taught to avoid would undermine everything we fought and bled for. 

For those not familiar, SSGT Giunta's squad was caught in an L-shaped ambush.  It was well executed and well planned.  Giunta and his squad was pinned down.  Two soldiers were forward of the rest and were exposed in the open, with no cover.  One was wounded badly, SGT Brennan. Brennan and Giunta were close friends.  In the dim light, Giunta could see that two Taliban fighters were dragging Brennan away.  Giunta got up, exposing himself to heavy enemy fire and advanced, tossed a grenade and shooting.  He shot one Taliban and the other retreated.  SSGT Giunta rescued his dying friend and pulled him back to safety.  Brennan died soon after.  But, Brennnan died knowing he was back with his buddies.  SSGT Giunta's attack broke up the ambush. The Taliban retreated. 

When you serve and especially when you deploy, your military unit becomes your family.  I would have given my life for my buddies readily, as they would have for me.  SSGT Giunta is right that his actions are not all that uncommon.  He is also right that he accepts the award for every soldier, marine, airman and sailor who was ready to do what he did.  He stands for us all in many ways. 

But, SSGT Giunta is also the best of us.  We are not all selfless or as selfless as we should be when we serve.  When many Iraq/Afghanistan vets return home, many come back angry.  Angry at those few instances when some soldier acted for his/her self interest and needlessly added to the ever present risk in a war zone.  

SSGT Giunta reminds us all how it should be.  He is the best of us.  

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Iowa passed a law recently requiring employers to give veterans Veterans Day off.  The leave can be unpaid.  See post.  The new law has some exceptions for public safety workers and major disruptions to employers.  But, the idea seems pertinent to today.  

I myself worked for an employer where Veterans Day was not always honored, even when I was fresh from the war.  My former employer would alternate Veterans Day with another holiday.  

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 I published this entry for Vets Day in 2009.  As modified for 2010: 

Today comes another Veteran’s Day.  Many of us recall a grandfather who served or an uncle who endured.  But, as Pres. Obama noted in 2009, the same service we grew up hearing about occurs today, everyday.  The 13 who were killed at Ft. Hood exemplify the hundreds of thousands who have endured in this generation’s two wars. 

CW2 (Ret) Cahill was killed at the age of 62.  Retired, he came back to Ft. Hood to serve those deploying and returning.  When I went to Iraq in 2005, many of those appearing with me at Ft. Jackson, South Carolina were retirees who volunteered to come back to active service and lend a hand. 

After retiring as a major with service in the National Guard, CPT Gaffaney persisted for three years in his attempts to return to the Guard as a psychiatric nurse, his civilian occupation.  Hampered by a hearing deficit, he pushed to serve.  He finally returned for a second career as a Reserve officer.  When I reported to Ft. Jackson in 2005, we had one Lieutenant-Colonel, who pushed and pushed for two weeks to be sent to Iraq.  He had diabetes.  He swore that his meds could be obtained in Iraq.  But, the medical folks at Ft. Jackson did not believe him and would not let him go.

When I was in Iraq in 2005-06, I went on a mission to visit some significant Iraqi officials.  On that convoy was a young female NCO.  She had graduated from college right after 9/11 with an engineering degree.  She joined the Army as an enlisted person and became an intelligence analyst, a very good one.  Here she was going outside the wire to collect intelligence.  She could have been anywhere that day, but she chose to be in Iraq, risking IED’s and more to collect critical information first hand. 

Pres. Obama said in 2009: "You may remember the stories of a grandfather who marched across Europe; an uncle who fought in Viet Nam; a sister who served in the Gulf.  But as we honor the many graduates who have served --  all of us -- every single American - - must acknowledge that this generation has more than proved itself the equal of those who've come before." 

In 2005, the large group of us, some 100 of us, were sent to California after Ft. Jackson.  We were to marry up with our Civil Affairs units and conduct train.  We had seven "full bird" Colonels in our group.  A sharp, able bunch.  The Civil Affairs brigade called them to a meeting.  The brigade told the Colonels, " we have some good news for you, we do not need you and you can go home."  The Colonels responded, "no, you called us from our civilian jobs, you must take us.  We are here to serve and we will serve."  One or two had contacts at the Pentagon.  They pressured the Civil Affairs Brigade to take them and put them to work.  They refused to be sent home.  All seven served their tours with distinction.

Pres. Obama: “We need not look to the past for greatness, because it is before our very eyes.” 

I served as Commander of a drill sergeant battalion in 2007.  I could not help but notice how many fine young people were volunteering for service during a time of two wars.  Today's soldiers, marines, airmen and sailors accept the same risks their grandfathers and fathers accepted.  A couple of the drill sergeants mentioned in briefings that they had to respect the young soldiers joining now in time of war.  

Pres. Obama: ". . .  here is what you must know: Your loved ones endure throughout the life of our nation.  Their memory wil be honored in the places they lived and by the people they touched. Their life's work is our security, and the freedom that we all too often take for granted. Every evening that the sun sets on a tranquil town; every dawn that a flag is unfurled; every moment that an American enjoys life, liberty and the pursuit of happiness -- that is their legacy.”

When I entered the military in the 1980's, older citizens would question our generation.  Would they serve as the "Greatest Generation" served in the 1940's?  Yes, they have, we have, over and over.  

Thank a vet today for his/her service.  

 

 

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The EEOC has held public hearings on an employer's use of credit reports as a tool with which to screen applicants.  Jon Hyman at Ohio Employment Blog discussed one such hearing.  See Jon's blog post.  Employers say credit histories help them screen clients and protect against fraud. Employees, especially in this economy, are concerned that poor credti history may unfairly keep them from a job.  The representative from the US Chamber of Commrece says employers take individual situations into account and do not abuse the practice.   

According to one credit agency, Experian, employers never see credit scores, just the histories.  See Jon's post for more info. 

 

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There is computer software which allows a person to record key strokes made on a computer.  A parent or an employer can use it to see where someone is going on the internet.  Richard Renner at Whistleblower Protection Blog describes one way to find out if your employer is using ley logging software.  Update your motor vehicle registration.  One employee updated his motor vehicle registration.  He then received a letter from the United States Computer Emergency Readiness Team (US-CERT).   Apparently, US-CERT monitors the use of keystroke logging software.  So, they will notify you if they observe the use of such software. 

But, as Richard mentions, the best practice is not to use office computer equipment for sensitive information.  Employers have a legal right to much information transmistted over company owned servers and hardware. See Whistleblower Protection Blog post.  

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 Molly Dibianca at Delaware Employment Blog describes a person she knows who was passed over for promotion at a large company in the private sector.  The difficult thing for the friend was that the manager who apparently tried to get her the promotion broke the news to her quickly with no elaboration.  See Delaware Employment Law Blog blog post.  The manager felt terrible about the news.  He thought the friend had been done wrong in not getting the promotion.  

In the end what bothered the friend the most was that she felt unappreciated.  Molly is trying to make the point that a well placed compliment can mean so much to an employee.  In the Army, we were trained to appreciate our subordinates and to let them know they were appreciated.  We received leadership training at several key junctures in our career.  We practiced various counseling sessions regarding subpar performance.  Where was this manager's training?  Did no one tell him the value of a compliment?  

I have questioned and reviewed documents regarding many companies.  Manager training is not universal.  Many managers conduct counseling sessions exactly the opposite of how it ought to be done.  In one of my own prior jobs, managers received no training.  So, it is not surprising that manager turnover was very high.  

The costs of poor training roll down hill.  Employees who should grow into senior management become, instead discouraged employees and sometimes leave.  And, over time, as other things go wrong, discouraged employees often become plaintiffs in a lawsuit.  So, what is the value of a compliment?  What is the value of a proper counseling session?

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Some of our best and brightest join the military.  Some of the best of the best are lost to the war.  SGT Cesar Ruiz was one such Marine.  He joined, did his four years and got out.  He left the Marines because his wife, Kimberly, wanted him to avoid another tour in the two wars.  See San Antonio Express News report.  He went from active duty to the Individual Ready Reserve.  The IRR is subject to call-ups.  In 2008, Cesar Ruiz was called up.  Kimberly was not happy.  Soon afterward, he received a second letter providing him the opportunity to avoid this call-up.  

This second letter was the answer to her prayers, says Kimberly.  She was thrilled.  Until she saw Cesar's face when he read it.  She saw in his face his desire to go and serve his country.  He would say later that he wanted to go so his young son would not have to go.  

She could not hold him back.  He went, a Combat Engineer.  He was killed in Afghanistan within a month.  Now, Kimberly will jog in the Marine Corps marathon in Washington, D.C.  Not an athlete at all, she perseveres because, as she says, no matter how bad it will be it will not be as bad as the pain SGT Ruiz felt. 

Military service is not for everyone.  It is for those who will not stand by while others do nothing.  A hero is really nothing more than someone who does something because others do nothing. 

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Facebook has many uses.  Now, it has helped solve a crime.  A San Antonio child wrote on her mother's Facebook wall that she had been molested.  See San Antonio Express News report.  The message alleged that a man had touched her under her clothes twice in August.  The mother confronted the man.  He then attacked the mother and the child.  Police were called.  The man was arrested.  But for the message on the Facebook wall, the police might never have learned of the sexual assault.  The man has been charged with sexual assault of a child. 

Jorge Pena, an assistant professor at University of Texas at San Antonio in communications, explains that the girls' outcry should not be unexpected.  Most people "friend" people they know, leading to the creation of a tightly knit community online.  

San Antonio police have already had some success with Facebook.  They captured a criminal suspect on their Top Ten list when a Facebook wall posting suggested that he would appear at a particular night club for his birthday.   Eric Dishong was wanted for suspicion of theft, theft of a firearm and burglary of a vehicle.  Now, he sits in a San Antonio jail. 

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Texas Supreme Court does the right thing, for a change.  A provision in the Texas Civil Practice and Remedies Code contains a retroactive prohibition against asbestos lawsuits in regard to one particular company.  Retroactive prohibitions of any kind are very rare.  This provision was passed as part of several tort reform amendments in 2003.  See Texas Civ.Pra. & Rem. Code Sec. 149.  It is even more rare for a provision to ever say as Sec. 149 says, "The limitations in Section 149.003 shall apply to a domestic corporation or a foreign corporation that has had a certificate of authority to transact business in this state or has done business in this state and that is a successor which became a successor prior to May 13, 1968. . . "

It does read like a statute designed to protect one particular company.  The Texas Supreme Court appears to agree.  See Texas Lawyer report.  The court found this provision unconstitutional (ie, the Texas Constitution).  Retroactive provisions are scrutinized more closely than normal statutes.  A typical statute would limit or prohibit something in the future, not the past.   A retroactive application is seen as depriving someone of a particular right of some sort.  The court found that Sec. 149 does not satisfy the requirements of a retroactive law.  

This issue matters to Barbara Robinson.  A normal or prospective statute would have had no effect on Barbara Robinson's lawsuit.  Her lawsuit was already filed when the tort reforms were passed in 2003.  Only a retroactive statute could affect her lawsuit. 

Barbara and John Robinson sued a company, Crown Cork in 2002.  Crown Cork fit the definition in Sec. 149.  Sec. 149 protected Crown Cork.  John Robinson was exposed to asbestos with the Navy from 1956 to 1976.  The predecessor corporation to Crown Cork manufactured the asbestos to which John had been exposed.  Sec. 149 passed into effect on June 11, 2003.  Crown Cork promptly moved for summary judgment .  John Robinson died days later.   His widow, Barbara, appealed and lost at the Houston Court of Appeals.  Now, the Texas Supreme Court, years later, has overturned the Houston Court of Appeals. 

Sec. 149 was passed while the Robinson suit was pending.  It is likely that whoever sponsored Sec. 149 amendment knew its effect.  Former Chief Justice Tom Phillips represents Crown Cork.  The company is well-connected on several levels.  

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 A Marine from San Antonio was killed in Afghanistan.  CPL Jorge Villareal was killed while on foot patrol in Helmand Province.  He graduated in 2006 from Kennedy High School.   See San Antonio Express News report.  CPL Villareal was part of a close knit group of friends who grew up together.  He served as class Treasurer and was a member of the National Honor Society at Kennedy High.  

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I talked about the school issued missing computers last May.  See blog post.  The Philadelphia school district then activated the webcams on the laptops in the hopes of finding them.  But, as it turns out, most were not stolen, at all.  So, the district inadvertently downloaded thousands of pictures of various families in their homes.  It was a huge invasion of privacy.  

Well, now the district has settled one case for $610,000.  See Chicago Tribune story.  The tracking program was accidentally left on months after the laptops were located.  Some 56,000 unnecessary images were taken by the district.  The student who settled his case, Blake Robbins, then 15 years old, said he never reported the laptop was stolen and did not understand why the tracking program was activated.  The webcam system took some 400 pictures of him over a two week period.  

Blake received $175,000 to be placed in a trust for him.  The lawyer received $425,000.  The article does not explain, but I assume that was the lawyer's attorney's fees.  Most civil rights statutes contain an attorney's fees provision. 

The district no longer uses the web tracking program.  With this case, we start getting some idea of the limits on computer technology and privacy concerns. 

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In employment law, former employees frequently must represent themselves in court.  There simply are not enough lawyers for employees to meet the demand.  And, of course, many former employees by definition lack income and resources.  In one recent case, a former salesman for Wyndham Vacation Resorts, Inc. lost his lawyer but persisted and won.  See San Antonio Express News report.  

James F. Faucett was fired from Wyndham in 2008.  He started a website called mywyndhamlawsuit.com where he posted a Wyndham manual which revealed that salespersons were taught to essentially lie about the benefits Wyndham would provide regarding the sale of timeshares across the country.  Wyndham is the largest seller of timeshares in the country.  After leaving Wyndham, he started a business called Advocates Against Timeshare Fraud, in which he helped customers avoid contracts to purchase timeshares.  Wyndham then sued him in 2009 to stop him from using his documents.  The former sales rep obtained some documents from the trash bin before he left Wyndham.  In January, 2010, Wyndham obtained a temporary restraining order (TRO) prohibiting Mr. Faucett from using the documents. TRO's by nature are based on quick evidence, often within just a few weeks of filing suit. TRO's are intended to be temporary until the parties can have a more complete hearing later. 

But, as many former employees must, he filed for bankruptcy.  Wyndham's state court lawsuit then was removed to federal bankruptcy court.   So, the employer's lawsuit was essentially transferred to federal bankruptcy court.  Wyndham then moved to permanently seal the employee manual and other documents.  Customers, to whom Mr. Faucett had provided the documents, intervened to make their own arguments in support of using the "smoking gun" manual.  

This time, representing himself, Mr. Faucett won.  Judge Leif Clark, the federal bankruptcy judge, found that Wyndham had not explained how Mr. Faucett's use of the documents could cause harm to Wyndham.  The former employer failed to explain how its competitors could use the information in the documents against Wyndham.  So, the court denied Wyndham's motion to seal the documents.  

The judge opined that Wyndham's "real interest in seeking to have this document filed under seal seems to be to keep it out of the hands of Wyndham's customers."   In fact, the court noted that the Wyndham representative who testified said they would prefer this information not be provided to customers who could use the information against Wyndham.  

Pro se plaintiffs do sometimes win.  Mr. Faucett had help from customers who joined the bankruptcy proceeding apparently on this one issue.  But, still, defeating Wyndham's team of lawyers is no small feat.  

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 Well, sanctions were dismissed against Judge Sharon Keller, after all.  See San Antonio Express News story.  A special panel appointed by the Texas Supreme Court agreed with Judge Keller's lawyer that the Judicial Commission could only issue a censure, recommendation for removal or dismissal of the case.  No public warning was possible, said the special panel.  So, the public warning issued by the Judicial Commission was null and void.  

Go figure.  I predicted different results.  See prior post.  One would think that a panel empowered to recommend removal would have the implied power to issue a public warning, a step short of censure or removal.  But, the panel disagreed.  . 

Judge Keller will go forward with a cloud over her head, unfortunately.  She will always be known as the judge who performed imperfectly one time.  The standard for Judges and lawyers is no mistakes. We do err on occasion.  Most mistakes are "fixable" in some way.  Refusing a late filed motion for a man's execution is not. 

We now know that many people are found guilty who were actually innocent.  DNA evidence has overturned too many supposed murder and rape convictions in the past 20 years.  One can only hope that the inmate Judge Keller allowed to be executed was not such a person. 

 

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I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief.  See news report.  I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars.  I practice civil rights law, so have some understanding of civil rights.  The First Amendment is a critical part of our laws and heritage.

The First Amendment has rarely been limited.  The most well known limitation came in a 1919 case, Schenk v. United States, in which Justice Oliver Wendell Holmes said that falsely yelling fire in a crowded theater was not protected speech.  See court opinion.  Justice Holmes offered this as an example of speech that would not protected by the 1st Amendment.  

This Westboro Baptist church case will be very difficult for the Supreme Court to decide.  Albert Snyder, the father of the slain soldier, Michael Snyder, rightly points out that this church took away his right to a private, mournful funeral.  Even though, the funeral procession was guided away from the protesters and the protesters were done by the time the funeral started, the father became aware of the protest within a month when he was researching his son's death on the internet.  He sued the church for intentional infliction of emotional distress and was eventually awarded $5 million in damages.  The court of appeals overturned the verdict saying the church was exercising its right to free expression. 

Now, the appeal is before the US Supreme Court.  In oral arguments today, the justices indicated they were having trouble with this case.  What are the limits of free speech?  Free speech cannot be based on popularity.   There is no need for a government protection for popular speech.  It is the unpopular speech that needs protection. 

The Schenk decision indicated that one limit would be public harm.  Free speech should not extend to speech which causes panic and endangers lives.  It seems to me that some speech can be so provocative that it endangers lives.  But, I am told by those more learned in First Amendment cases that the Supreme Court has already rejected that attempt to limit free speech.  Recall the case concerning the Neo-Nazis who appealed and won their right to march in a Jewish neighborhood in Chicago.  Their march was also likely to provoke violence, but the Supreme Court, I am told, rejected that argument.  

I am sure the tiny Westboro Baptist church is concerned for their own safety.  They may be the most unpopular church in America.  In this case, I have to speak more as a former soldier.  If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.  

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 Christine O'Donnell, the Republican nominee for Senate in Delaware, has further problems with her resume.  She claims on her Linkedin page to have taken a course at the well-known Oxford University in Emgland.  Well, not quite.  What she actually took was a course from Phoenix University, a well-knwon for-profit school, at Oxford.  Phoenix rented space from Oxford University. Phoenix U. had a summer program at Oxford in 2001. See report.  

She also claims to have taken a course at the prestigious Claremont Graduate University in California.  Well, perhaps not.  Claremont Graduate University has no record that she attended the school at any time.  But, a Claremont Institute, a conservative think-tank did award Ms. O'Donnell a fellowship in 2002. Claremont Institute is not connected to the much better known Claremont University. Claremont Institute is also located in Claremont, California.  

It was just a few weeks ago that we learned that Ms. O'Donnell had claimed for years to have graduated from Farleigh Dickinson University.  But, she actually only received her degree on Sept. 1, 2010.  

The problem with padding a resume is that it stays with you.  You may think it will help get a particular job or position.  But, it becomes difficult later to leave those bogus qualifications behind when you later move on to some other job. 

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The work place can be a very dangerous place.  Workplace Prof presents a scenario that concerns another unnamed professor.  See post.  Workplace refers to another blog at: suburbdad.blogspot.com/.  Well, since Dean Dad posted the original post at his blog, Community College Dean, Dean Dad has taken back down the post at the request of the original professor.  I bet he did ask that it be taken down.

The kernel of the story remains:  Student takes class from Prof last year. After class is over, student and Prof date and have brief affair.  Affair ends badly.  Student takes another class from unnamed Prof.  Student demands an "A" or else she will reveal all.  The original post by Dean Dad solicited recommendations on what Prof should do.  After a few days, Dean Dad took down the original post. 

If Prof drops the student, then he will be accused of reprisal.  If she does not get an "A," then student will reveal the forbidden affair to the school.

Dean Dad's advice, now removed, was that Prof should tell the school about the affair and remove student's leverage.  That is surely the best advice.  

Another word of advice, don't date students even after the class is over.  The advice pertains to others, as well.  In the military, for example higher ranking officers or NCO's should not date younger officers or NCO's even if they are not in your chain of command.  They may be in a different unit today but they could be in your chain of command in a month or a year.  Same advice applies to folks in the civilian sector.  Just another employee today could be your employee next year. 

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The national unemployment rate has increased from 9.5% to 9.6%.  See report.  54,000 government jobs were lost during the month of August.  That loss is probably due to the loss of census jobs.  But, there was an increase of 67,000 private sector jobs.  In Texas, the unemployment rate rose slightly from 8.2% to 8.3%.  See report.  But, in San Antonio, unemployment actually went down from 7.7% to 7.6%. 

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 Workplace harassment takes many forms.  In the San Antonio Police Department, two police officers stuffed trash in a female co-worker's mailbox.  They hid her squad car when she needed it. Now, the two male co-workers have been placed on suspension.  See San Antonio Express News story.  One of the male police officers is 31 years old, the other is 39 years old.  Age does not guarantee maturity. They sent derogatory messages to the female officer and about her on SAPD computers.  One officer received a 60 day suspension.  The other received an "indefinite suspension."  He has essentially been fired.  

The news report does not explain what lead up to the pranks and harassment.  But, to risk termination, I hope it was in their eyes a very good reason.  Unfortunately, as I have mentioned in other posts, workplace bullying is more common than it ought to be.  See prior posts.  

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 Yahoo news has a story at:  www.finance.yahoo.com/career-work/article/110601/8-things-employers-arent-allowed-to-ask-you - the list describs things one supposedly cannot ask interviewees.  It has so many errors.  So, let's go one by one.

1. How old are you?  The Yahoo comment about this question is probably accurate.  There are very few jobs where someone can ask you your age and the question itself not serve as evidence of age bias.  Best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married?  I do not understand this.  I do not understand how this can serve as evidence of anything.  I think the Yahoo author is suggesting that this might serve as evidence if asked of female applicant.  But, virtually every married person would have some issue or concern regarding family life and their employer.  I cannot imagine how this could be used as evidence against the employer in any claim.  

3. Are you a US citizen?  Yahoo's answer to this question might be correct.  The article refers to the Immigration Reform and Control Act of 1986, but I would also add that asking about citizenship could also serve as evidence in an ethnic origin case.  Better not ask this question until a job is offered.

4. Do you have disabilities?  Yahoo's answer is partially correct an partially incorrect.  An employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job.  How else would a fire deaprtment make sure an applicant can carry someone out of a burning building?  The Yahoo news article gets this very wrong and very misleading.  Yes, ask about physical or mental limitations.  But, do not ask about disabilities or diagnoses until a job offer has been made.    

5.  Do you take drugs, smoke or drink?  Yahoo's answer is confusing.  An employer can ask about drinking, smoking or illicit drug use.  An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.  How Yahoo gets to the conclusion that one cannot ask about illicit drugs, smoking or alcohol is beyond me.  None of these abuses are protected activities under any employment laws to my knowledge. 

6. What religion do you practice?  The Yahoo news article is right about this.  An employer cannot ask about religious practices.  Since, that could be used as evidence later of religious discrimination.

7. What is your race?  See No. 6 above.  But, don't we all know not to ask this by now?  

8. Are you pregnant?  This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias.  So, yes, it is better not to ask this question.  And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

But, the article does not make this plain: all of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation.  If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance.  A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation.  The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant.  The best defense for any employer is to simply issue written warnings whenever a transgression occurs.  Less worrying about verbal discussions and more focus on written discipline applied consistently will serve the employer much more.  

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Paid maternity leave is virtually nonexistent in the US.  Even unpaid leave is not a given.  Since, the Family Medical Leave Act only applies to employers with 50 or more employees.  A worker must have worked for the employer some 12 months prior to requesting the FMLA leave.  According to one public agency, the FMLA covers 60% of the workforce.

One mother, Anna, describes her two births.  See post.  She was an independent contractor both times. So, the only leave she received was what she could squeeze in between births.  Every Western country, except Australia and the US, offer paid maternity leave according to Anna.  So much for family values.....

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 A San Sntonio soldier has been killed in Afghanistan.  PFC Diego Montoya was Mehtar Lam in Northern Afghanistan.  A 2009 Taft High School graduate, he participated in the high school JROTC program.  He was serving with the 64th MP Company.  See San Antonio Express News report.  His mother said he always wanted to serve in the Army.  His step-father said he was a hopeless romantic. 

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Yes, emails sent from the workplace almost always belong to the employer.  That still seems to be a shock to many employees.  Look at the story of Chris Gonzalez, grandson of a well-known, former San Antonio Congressman.  See San Antonio Express-News story.  Mr. Gonzalez has reportedly been sending harassing emails to a former girlfriend.  He sent them from work.  The girlfriend's employer blocked them from one work computer.  Mr. Gonzalez works at a large district clerk office.  So, he simply used a different work computer.  Apparently, that is when the girlfriend's employer had enough and called the police.  

Mr. Gonzalez has been arrested for a crime known as online harassment.  His employer says Mr. Gonzalez works for him now, but that could change.  I bet it could......

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I do not understand.  I read polls saying Americans disfavor a mosque near Ground Zero and many Americans prefer not to have any mosque near their homes.  And, yet, I do understand.  If I had not spent 12 months in Iraq serving in the Army and working closely with several Iraqi, Moslem interpreters, I might understand all too well.  But, we are the sum of our experiences.  And, I did serve with some very decent, brave Iraqi, Moslem interpreters.  

I do not have a problem with having one more church, Moslem or not, near Ground Zero.  Once when I was in Iraq, the insurgents attacked and killed tens of worshipers on their way to a large Shiite mosque in Baghdad.  Some 60 people were killed.  I asked Salma, my interpreter, "so they were attacked while going to church?" I asked incredulous.  She nodded, yes.  It took me awhile to appreciate that to Moslems, a mosque is a church.   They are the same. The horror of attacking people for no greater crime than attending church is hard too fathom.  

Salma was not a devout Moslem.  But, I served with two interpreters who were very devout and who were very decent persons.  Their humility, strength, and kindness spoke to me as devout Christians. Yet, they were very Moslem.  

Salma was killed later by the same insurgents who killed many good soldiers.  Probably the same insurgents who killed her brother, a policeman, two years earlier.  Of the two devout Moslem interpreters I served with, one had to quit when the insurgents started to realize he worked for the US.  The other interpreter, I'll call him Abdul, had many, many issues with the insurgents.  Abdul tried to deal with them in "his way," but was ultimately unsuccessful.  He eventually had to flee Iraq.  

Abdul was special.  Once, the Iraqi lady who cleaned our offices came to work with another black eye.  This was not the first time.  Her husband was beating her.  My predecessor officers and NCO's respected her a great deal.  So, they asked Abdul to see if he could stop this.  The story I heard later when I got to country was that Abdul, usually a very kindly sort, hit the husband and told him if his wife came to work again with a black eye, Abdul would kill him. 

This was the same Abdul who would bow slightly whenever greeting someone and say "how are you sir" with the biggest smile.  Abdul was from good family.  He could have been doing anything, but he chose to risk his life and that of his family to better his country.  He never sought favor.  He never complained about the rare instance of rude, disrespectful treatment he received from one or two ignorant soldiers.  Whenever we asked, he would buy us good rugs at good prices in Baghdad.  

To me, like most Americans, I see Ground Zero as sacred ground, much like the Gettysburg battlefield or anywhere where Americans have perished in great numbers simply because they were Americans. 

So, yes, now, after my year in Iraq, I find it strange that some folks get worked up over having one more church, Moslem or otherwise, near Ground Zero.  Because, in my mind, I see people like Abdul worshipping at this or at some other mosque.  And, to me, that would be a good thing. 

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So, you get angry with your employer.  They fire you.  You want to get back at them for what "they" did to you.  Most people start thinking lawsuit.  Not Edward Harrington.  He decided to start a blog complaining about his former employer, Levinson Axelrod, a prominent New Jersey law firm.  He started a blog called "Levinson Axelrod Really Sucks."  He celebrated their losses.  He pointed barbed comments at the mustache of a partner.  He encouraged others to file ethical complaints against the firm. 

The firm eventually sued the errant former associate based on the Lanham Act and Anti-Cyber Squatting Consumer Protection Act.  The suit apparently faced a difficult challenge.  To win, the firm would have to show that Mr. Heyburn was profiting somehow from his blog.  But, Mr. Harrington denied any profits.  So, the parties reached a settlement in which the young blogger agreed to take down his blog.  See report.  

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Judge Keller's appeal fails with no comment from the court.  See report.  The Texas Supreme Court rejected Judge Keller's appeal.  See prior post.  Keller appealed the Commission's public warning, arguing the Commission was authorized to sanction her or not sanction her.  Judge Keller argued in her appeal that issuing a public warning was not available to the Commission. 

If that is all they had, it is not surprising the Supremes turned her down.  Implicit in the authority to sanction a person is the authority to simply warn them instead.  Judge Keller may have been desperate for some basis for an appeal.....

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A San Antonio soldier was killed in Afghanistan.  Nineteen years old, PFC John  Andrade was killed by an IED.  See San Antonio Express-News report.  He apparently survived the explosion and even called home.  He told his family that he was fine except for bumps and bruises.  A few days later, the family was notified that he had died.  The Defense Department has not yet released details concerning the death.  PFC Andrade graduated from Holmes High School. 

I have mentioned before the remarkable bravery of our young men and women who continue to volunteer in a time of war.  IED's can be insidious.  The concussive effects are tremendous, even when soldiers survive the blast itself.  

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Tweeting your way out of a job can happen.  See report.  The Middle Eastern editor for CNN sent a brief tweet about the passing of a Lebanese cleric who was known for being anti-American.  Octavia Nasr tweeted that the cleric was "one of Hezbollah's giants I respect a lot."  The editor meant the cleric's opposition to "honor killings," a long and controversial tradition in the Middle East.  

CNN issued a statement calling the tweet an error in judgment.   Ms. Nasr deeply regretted the tweet, explaining that the commentary was too complicated for a tweet.  She was a 20 year employee of CNN. Now, she is out of a job.  

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 Another incident of workplace violence.  This time in Connecticut.  See news report.  The shooter's family say the shooter had been harassed due to his race, African-American.  In any event, he was video taped stealing some product.  The morning of the shooting, he was going to a disciplinary hearing.  He had worked for the beer distributor for some two years driving a truck. 

Unfortunately, workplace violence happens.  OSHA has a helpful website.  OSHA refers the reader to a publication by the National Institute for Occupational Safety and Health.  NIOSH suggests various ways of identifying and reducing work stress.  There is no excuse for shooting and murder. But, many employers have weak or nonexistent tools for dealing with workplace issues.  The simple answer in an at-will state is to quit a bad job.  But, for some folks, quitting is not an option, or it is not an option, yet.  I cannot remind the reader enough that if you have a problem employee, you need to perform appropriate verbal and written counseling.  Take appropriate disciplinary action for all employees.  And, yes, listen to employees and deal with issues.  

But, as my colleague says at Connecticut Employment Law, ultimately, even when you do everything right, that is no guarantee that shootings will not occur.  See post.  

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Do we really care about the soldiers, asks a First Lieutenant in Afghanistan?  See report.  Do we support pay raises for the troops?  Have we petitioned Congress?  Have we sent letters to our Congressmen?  He adds if we want them to stay overseas, tell our representatives.  If we want them to leave, tell our representatives.  But, he rightly adds, otherwise, to do nothing is simple complaining.  

Speaking as a former deployed soldier, i know it is easy to be over there and think no one back home gives a whit about you.  We can and should do more.  A deployed soldier should never have to wonder if the folks back home care. 

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It is always harder to find a job when you reach a certain age.  A female lawyer, almost 60,  has submitted 1,000 applications and has yet to find a job.  According to the ABA Journal report, she has applied for everything from day care worker to clerk.  The former shopping center lawyer was laid off in January, 2009.  She has not even had one interview.  She compares finding a job interview to looking for a unicorn.....

Many of my clients who lost their jobs in their 50's typically take a year or more to find a new job.  

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Judge Sharon Keller has been issued a public reprimand for her conduct involving the attempted appeal of death row inmate Michael Richard.  See San Antonio Express News report.  Judge Keller sits on the Texas Court of Criminal Appeals, the state's highest court for criminal cases.  As readers will recall, Judge Keller refused Richard's lawyer's last minute request to keep the clerk's office open until they could file an appeal.  The State Commission on Judicial Conduct investigated.  The Commission has now issued her a public reprimand.  This sanction is much less than the requested sanction that she be removed from office.  

Judge Keller violated known protocol for the court, as I explained in earlier posts.  This story demonstrates the unpredictability of all litigation.  On any given day, even the best judges will make a bad call.  That is why lawyers discuss settlement.  As my former judge used to say, the worst settlement agreement is better than the best trial.  He meant that no matter how strong your case may be, you should consider settlement.  Because, one never knows what may happen at trial. 

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I live in a military town.  We have more retired service members here in San Antonio (aka "Military City, USA") than you can shake a stick at.  So, in civilian jobs, we regularly work with former military members.  Some excel, some do not.  The perception of military persons out side of Military City, USA is sometimes that military members are too rigid or inflexible.  Some are.  The perception is sometimes accurate.  But, by far, former military members do well in the civilian workforce.

Look at Mike Maslanka's comments about Hal Moore, retired Army general.  Hal Moore provides good lessons for all civilian leaders: 1) Never deprive a human being of dignity.  2) Always lead from the front.  That is, place yourself at the key point of any operation at key moments.   3) Listen to those below you in the chain of command.  No one knows the job of the dishwasher better than the dishwasher himself.  4) When faced with a difficult issue, always remember there is one more thing you can do to influence the outcome. 

For those not familiar with LG (Lieutenant General) Moore (Ret), he was the Battalion Commander in the book and movie, We Were Soldiers Once . . . And Young.  Great book and great movie.  LG Moore was a role model for many Army officers. Leadership, true leadership applies in any context. When he came home from Viet Nam, he visited the homes and families of all his deceased soldiers. 

If more civilian leaders practiced these four principles, we would have far more agreeable and productive workplaces.  

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 In the June/July edition of the Louisiana Bar Journal, New Orleans attorney Michelle Craig relates some good advice for employers.  She discusses social media sites.  She advises employers to not routinely comment to employees about the contents of posts, blogs or comments.  She notes this could suggest the employer is conducting surveillance of its employees.  Surveillance is one of the actions prohibited by the National Labor Relations Act.  

The NLRA also prohibits reprisal against employees who discuss terms and conditions of employment. See my earlier post about this sort of reprisal.  Forbidding an employee from discussing terms and conditions of employment in any venue, including social media sites, would likely violate the NLRA.  

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He served as a mechanic, the chief mechanic for his battalion.  He loved his job and was devoted to his unit.  As they trained and prepared to deploy to Iraq, he promised them.  He guaranteed no HMMWV would break down outside the wire.  That is a big promise to make.  He was an E7, a Sergeant First Class with over ten years in the Army.  He knew the HMMWV's in Iraq were hand-me-down's from five previous rotations.  They came with all sorts of mechanical issues.  But, the SFC knew his skills and he knew the capabilities of the mechanics he supervised.  He promised and he meant it.  

The SFC was dedicated.  He performed all the tasks he could, based on the firm belief that he would ask nothing of his soldiers he was not willing to do himself.  So, he lifted the 55 gallon drums with no hesitation.  He heard the disc pop when he incurred three herniated discs.  He was out of action for months, if not forever.  They took him to Germany, the nearest base with back specialists.  

Two weeks after he left Iraq, two of his HMMWV's broke down.  Two were killed.  Two were evacuated to Germany, where all the worst cases go.  It wasn't his promise anymore.  But, he felt responsible all the same. One of the KIA's was his buddy, Achmed, the Iraqi interpreter.  The E7 was angry, angry at the war, angry with himself for getting hurt when his unit needed him. 

The E7 worked hard everyday at BAMC, Ft. Sam Houston.  The promise was never far from his mind.  The doctors said he had more determination than anyone they had ever seen.  He should be a medical retirement, but he worked so hard.  The doctors did not know about the promise.  They did not know about Achmed.  The E7 never forgot either.  

A year later, he was close to full rehabilitation.  The doctors thought he was a medical miracle.  The wife knew.  She knew about the promise and about Achmed.  She wanted to shake him when he said he would transfer to the 101st or the 82d Divisions.  Both divisions would deploy very soon to Iraq and Afghanistan.  The wife knew why he wanted to transfer, why he wanted to deploy again. She wanted to shake him, sometimes.  But, she also understood.  That was why she loved him, because he always kept his promises.  

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Well, the Texas Supreme Court is again dismantling victim's remedies.  But, this time, they are working against small ranchers.  In Bennett and Bonham Corp. v. Reynolds, the court took away another jury verdict.  This time it was a cattle theft case.  The jury awarded $5,327 in actual losses and $1.25 million in punitive damages.  The Supreme Court considered whether the punitive damages were too high in relation to the actual losses and said the amount was too high.  The court found that the 235:1 ratio was too high.  

Punitive damages are designed to punish a transgressor, beyond mere negligence.  The Texas Supreme Court reversed the lower appeal court and found that Bennett's trangsressions were more about the litigation than about the actual theft.  The two ranching families were neighbors and nursed a long-time feud.  Seventeen head of cattle strayed onto Bennett's property.  Bennett sold them.  Bennett denied to Reynolds knowing anything about them and thus prolonged Reynolds' discovery about the sale for some three months.  Reynolds sued Bennett, who then counter-sued claiming Reynolds had made everything up. 

The Court found that Bennett threatened a witness; attempted to bribe another witness; doctored some photos of the stolen cattle at auction; filed suit against a Reynolds ranch hand; and Bennett tried to meddle with Reynold's registered brand.  All pretty bad stuff. 

But, the Supreme Court found these bad acts occurred during the litigation, not as part of the theft,  So, in a technical ruling, the court found these bad acts essentially did not count for purposes of punitive damages.  There were other ways of dealing with reprehensible litigation tactics, said the court. 

In the Army, we have this marching song which we most often used to sing when we did physical training.  On those long runs, someone would strike up, "We're at it again, on the road....," we would wail.  Well, the Texas Supremes are at it again....

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According to a recent story in the San Antonio Express-News, most employees complain about their bosses' being lazy or dishonest.  See story.  Another 21% complain that their bosses are "nipickers."  

Speaking of which, Mike Maslanka writes a nice post about lying and body language.  A study suggests that bosses are often the better liars.  

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Judge Sharon Keller's lawyer made his final arguments to the Texas Commission on Judicial Conduct.  He argues defensively that the protocol she was expected to follow was not in writing at the time.  He said the TCJC has completed a poor investigation.  He accused the lawyers for the executed killer, Michael Richard, of telling a "pack of lies" regarding the events.  

The prosecutor, actually a special counsel for the TCJC, argued that Judge Keller admitted that she knew the protocol, whether it was written or verbal. She admitted that she knew the protocol was mandatory.  The protocol required her to refer the lawyers to the duty judge, Cheryl Johnson.  Instead, she dealt with the lawyers' request for more time herself.  

As the reader may recall, the lawyers for Michael Richard encountered computer trouble in trying to file a last minute motion.  The motion had a fair likelihood of success.  Richard was to be executed the next day.  So, the motion was critical.  They called the Criminal Court of Appeals.  The CCA is the final appeals court for criminal appeals.  The defense lawyers were eventually referred to Judge Keller.  They asked for more time.  Judge Keller said no.  She should have referred them to the duty judge Cheryl Johnson.  Indeed, most courts would have allowed the extra time, just because of the final nature of an execution.  See earlier posts (and here) about Judge Keller.  As Judge Berchelmann said, this was a grievous sin by any public servant. 

In following this story, I tend to think Judge Keller is normally a concerned, dedicated judge, and rather conservative.  It may have just been this one time, but I tend to believe that on this one day, she was impatient with the process that allows defense lawyers in death penalty cases to file motions at the very last minute.  It may have just been a bad day, but she showed poor judgment that one day.  Even judges are human.  This is a good lesson to anyone seeking justice in court. Judges do make mistakes.  Litigation is unpredictable in part because judges (and juries) are human.  

As I tell my clients all the time, you can have the best case and still lose.  Here, Michael Richard had good basis for a motion.  But, the motion was never filed......

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 San Antonio lawyer Ted Roberts has been granted "shock probation."  That means Ted Roberts will be let out of state prison early and he will seve 10 years probation.  See report.  Ted Roberts is the lawyer who was found guilty of forcing various persons to keep him quiet about these men having sexual relations with Ted Robert's wife.  'Shock probation" refers to the unexpected nature of receiving probation.  The offender thinks he is spending so many years in jail, but instead the judge lets him after having already sent him to prison. 

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You think the workplace bullying is bad where you work?  Meg Whitman, former eBay executive and current candidate for Governor of California, is accused of shoving an employee.  Ms. Whitman's campaign claims it was just a verbal altercation.  Either way, it resulted in a $200,000 setlement, reportedly.  See report.  I guess things get tense at eBay on occasion.....

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 In a recent decision, the US Supreme Court affirmed the right of employers to review the text messages on employees' cell phones.  In City of Ontario v. Quon, the government employer searched the employees' cell phone for text messages.  The cell phone had been issued by the employer.  The City believed the employee had exceeded the limit on cell phone messages.  So, it got a private cell phone company to release the text messages.  In reviewing the text messages, the employer found some of the text messages to violate additional company policies.  Some messages had sexual content.  The Ninth Circuit Court of Appeals had found this intrusion violated the Fourth Amendment, since the employer could have simply looked at the recipient's address to see if the messages violated policy. 

The Supreme Court did not specifically address the isue regarding wherther the employee has a privacy interest in the text messages.  But, it did assume the employee has a privacy interest for the purposes of resolving whether the employer's actions were lawful.  In a close 5-4 decision, the Supreme Court found that the actions of the employer did comport with the Fourth Amendment.  See report. 

The US Supreme Court found that possibly exceeding the text message quota was sufficient reason for the intrusion into the text messages.  And, the court found that looking at the entire message, instead of just the addressee, was appropriate under the circumstances.  The court seemed to note with approval that the employer only looked at a sampling of the messages sent during work hours. The sexual nature of the messages did not help the employee's cause. 

The Supreme Court mentioned that this is a growing area and it would not issue any broad rulings. 

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In Iraq and Afghanistan, Moslem interpreters help us everyday with the war effort.  Interpreters assume a special risk.  They are targeted whenever possible.  See report of an Iraqi interpreter who was killed in Samarra by his son and nephew.  His son and nephew are said to be members of Al-Qaeda.  Samarra is heavily Sunni, so this report could be true.  We could not carry on the war with any degree of success without these hundreds of interpreters.  

Muhsin said al-Daraji worked for us since 2003.  His family constantly urged him to stop working for Coalition Forces (ie, US forces).  See CBS news report.  That is probably too long to work for Coalition Forces.  The longer you work for us, the more you become a target.  My interpreter when I served in Iraq also worked for CF from the beginning.  She was caught, tortured and killed in 2006.  

Hundreds, thousands of other Iraqi and Afghans cooperate with us in a wide variety of ways.  They too become targets.  When I was in Iraq serving in the US Army, we had to meet with Iraqi contractors far away from prying eyes out in the desert somewhere.  That was for their safety, not ours. 

Yet, I continue to hear Americans claiming Islam is violent and all Moslems seek jihad against us.....

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The national unemployment rate has reduced from 9.9% to 9.7% for May.  See report.  But, it appears that many of these new jobs are temporary jobs.  The San Antonio rate has improved slightly from 7.3% in April to 7.1% in May.  See TWC report.  Overall, Texas added 43,600 jobs in May. 

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San Antonio pararescuer TSGT Michael Flores was killed in Afghanistan.  TSGT Flores was a 1997 graduate of John Marshall High School.  He was killed along with three others when their helicopter was crashed in Helmand Province.  The Taliban claim they shot down the Osprey-22 helicopter.  See San Antonio Express-News report. 

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

 

 

 

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

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

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

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

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

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

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

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

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 We love our email.  But, sometimes, email is our undoing.  Ronda Templeton talks about email and its travails in this San Antonio Express-News article.  Of course, she mentions how wise it is to think before you send any email.  Once sent, it is nearly impossible to bring back an email.

Every employee should also understand that if you use the employer's email server for any email, personal or not personal, then the employer probably has the right to look at that email.  

Note her report that 95% of us check our work related email after hours.  Is that time compensable?  If checking email is required by the employer, then time spent doing so will very likely be compensable. 

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 Every employee assumes or hopes he will not be fired.  But, if you get fired, you need to understand your COBRA (Consolidated Omnibus Budget Reconciliation Act of 1985) rights.  COBRA is the federal statute which requires an employer to make available to a terminated employee continued health insurance coverage.  The continued coverage comes at a price.  The employee must pay both the employer's portion and the employee's portion.  That means the cost will typically be twice or more what the employee was paying  before the termination.  

 In 2008, Congress enacted legislation subsidizing the costs of COBRA for workers who lost their job due to the Recession.  This legislation applies to persons who lost their jobs due to involuntary termination between Sep. 1, 2008 and Dec. 31, 2009.  See article at Workplace Fairness.  According to Workplace Fairness, the COBRA subsidy begins for health insurance coverage starting March 1, 2009.  

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 NPR is running a series looking at work-life balance.  In this episode, they look at folks who work from home and how it helped their work-life balance.  

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 Why some people cannot get a job: "found ur id on;line and found that u ans evil hr question.  i am struck with a question in interview of "why my grades are so low".  and also cant find an ans where a positive mindset is going to be created in mind of the interviewer. i am a law graduate."  

This was a a question posed to Evil HR lady who writes a blog on Human Resources.  Go to link to see her response.  Evil HR lady actually is pretty friendly.  She provides some sage advice to some young job seeker.  Scroll way down to the bottom to an entry for Feb. 8, 2010.  

 

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The national unemployment rate remains steady at 9.7% this month.  The state unemployment rate remains steady at 8.2%, still lower than the national rate.  The San Antonio area unemployment rate did increase from 6.9% to 7.7%.  A year ago this month, the San Antonio rate was 6.4%. 

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 In Texas employment lawsuits, sometimes both a manager and the company are named in a lawsuit.  In such situations, the employer typically provides a lawyer for the management official.  "Provides" generally means pay for.  Almost always, the same defense lawyer represents both the manager and the company.  But, the manager's interest and the employer's interest are not always the same.  In a recent case, the New Jersey Supreme Court looked at the arrangement used by the employer and found some ethical problems.

The employer told the employee which attorneys they could hire, agreed to pay for them, but said the employer could cease payments at any time.  The company told the employees they could hire their own attorney if they wished.  The matter was criminal.  The state Attorney General was the plaintiff.  The AG's office objected to this arrangement and tried to disqualify the counsel for the employees.

The New Jersey Supreme Court disapproved of the "take it or leave it" nature of the attorney representation plan.  Relying on several ethical rules, common to most states, the court found 1) that in the future, the employee would have the right to pick his/her own lawyer at the employer's expense, 2) that the employer could not stop paying the lawyer without court approval, 3) the counsel could not withdraw without court approval, and 4) specifically held that the employer could not terminate payments simply because the employer did not like the tack the employee and his  counsel were taking.  See In re State Grand Jury.  

Texas has a similar ethical rule to New Jersey's: no one but the client can tell the attorney how or what to do in a litigation.  In some situations, both the company and a lower level manager are named in a lawsuit.  The employer provides the same lawyer for both he company and the manager.  In such situations, who is the client?  Sharing the same lawyer works well for some situations, but not for others.  What happens, for example,  when the company has some liability regarding a policy which the manager faithfully followed?  That is, the company's policy is at fault, but not the manager. Or, what happens if a higher level manager uttered some discriminatory statement about which the lower level manager has personal knowledge?  These are conflict of interest situations.  But, the company's lawyer has strong financial interest not to raise these potential conflicts.  If the company's layer raises these potential issues, he risks losing a valuable client for the law firm. 

When you have a conflict of interest situation, the company's lawyer should quit.  He cannot represent both parties any longer.  If the company then provides a separate lawyer for the lower level manager the company cannot control the tactics employed by that lawyer.  And, relying on this New Jersey decision, the company cannot terminate the lawyer once the representation heads south for the employer.  

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 The EEOC was hit with an award of $4.5 million in attorney's fees by a federal district court in Iowa.  That is, the EEOC was ordered to pay $4.5 million to the winning side in their lawsuit.  Workplace Prof has discussed the award.  Turns out the EEOC filed suit on behalf of one woman and unspecified other women in a sex harassment case.  The employer was a trucking company with many different locations.  So, as the lawsuit progressed, the EEOC added other female plaintiffs as they came forward.  The women were in different locations working for various male supervisors and co-workers.  The EEOC then turned the initial lawsuit into a "pattern and practice" case.  

Eventually, the district court dismissed claims on behalf of some women and issued summary judgment against the rest of the women.  So, the EEOC lost on all claims.  At some point, there were 67 women with claims still pending but into which claims the EEOC did not investigate and did not attempt conciliation.  Thus, the EEOC created a huge burden for the court and the employer, said the court.  

As Law Professor explains, its a case of darned if you, darned if you don't.  If you add the new clients, then you do have a pattern of sex harassment.  But, many women filed their charges after the lawsuit had been filed.  So, yes, it would appear to the employer that the lawsuit would never end, as new plaintiffs joined and deadlines were extended.  The EEOC could have chosen not to add the women to the one lawsuit, but then lawsuits would have been pending against the employer for years and years.  

Its a case also of the EEOC simply does not perform actual investigations 99 times out of 100.  Yet, they do have the power to complete investigations.  More is expected of them.  But, because they have so few investigators, they accomplish very little.  Most US district court judges are aware of the EEOC's limitations.  But, the EEOC's limitations essentially make more work for the federal court system. 

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 Judge Keller of the Court of Criminal Appeals is not out of hot water, yet.  The Court of Criminal Appeals, of course, is the highest court in Texas for criminal cases.  So, her case is significant.  See San Antonio Express News report.  The special counsel appointed in her case recommended that she suffer some sort of discipline.  The Special master, Judge Berchelmann, had previously found her conduct deficient but said Judge Keller did not break any laws.  Well, as the special counsel points out, Judge Berchelmann was very critical of her conduct.  In the legal world, we are not supposed to violate custom or even unwritten rules without a good reason.  Most lawyers would suffer some sort of discipline from the bar association for such conduct.  So, the special counsel recommends that she be disciplined simply for violating protocol. 

Judge Keller's latest reaction is concerning.  Her lawyer, "Chip" Babcock filed objections to Judge Berchelmann's report.  He referred to Berchelmann's comments that Judge Keller showed poor judgment in not being more helpful as a public servant.  Judge Berchelmann said her failure to keep the clerk's office open was "highly questionable" and that failure was a reason many in the legal community are not proud of her actions.  Mr. Babcock commented that Judge Keller is not part of some "popularity contest among Texas lawyers."    

Judge Keller and her lawyer apparently do not "get it."  Judge Berchelmann was explaining as respectfully as he could that Judge Keller violated known protocol.  She did not violate any statute or law.  But, for a lawyer or judge, violating known, expected protocol is also serious.  "Discipline" in the legal world can include everything from a private letter of reprimand to suspension of the right to practice law.  It is bad enough that she did what she did.  It is even worse that she does not appreciate the gravity of her actions.  Judge are public servants, after all.  More is expected of them,. not less. 

As I have discussed many times, the background and experiences of a judge do matter.  Judge Keller spent many years in the appellate section of the Harris County District Attorney's office before becoming a judge.  So, she has done little actual litigation in her career.  It shows.....

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 They are sometimes forbidden, but they occur all the same.  Work place romance always occurs, and perhaps surprisingly, often leads to marriage.  According to a recent San Antonio Express news article, more than 20% of office romances lead to marriage.  One wedding planner says 25% of his weddings started in the workplace.  The parties are not always employed by the same firm, but work helped them get together.  

But, the article reminds us, people need to be professional about the romance and not allow the romance from getting in the way of work.  Amen.  The best work policies in the world cannot prevent employees from becoming unprofessional.  Emloyees must do that themselves. 

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 Yes, you too can be hit with an award of attorney's fees.  In federal court, the losing party is almost always ordered to pay the other side's court costs.   And, yes, if the plaintiff has a "frivolous" case, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees.  See this report of a case in which the EEOC was ordered to pay $4.5 million in attorney's fees for the employer.  It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous.  And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.  

But, a plaintiff should always have enough evidence to avoid charges of frivolousness.  Always.  Factors that help show frivolous include poor investigation prior to suit.  The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit.  Everyone knows they usually do not conduct an actual investigation.  Unlike the private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation.  Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (ie, quick) judgment a close call.  if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then they really should not be filing suit. 

This time, the EEOC is found to have filed a very large lawsuit without enough evidence to overcome summary judgment.  Many federal court judges are predisposed to find against employees.  But, still to award attorney's fees at all, much less this large, suggests there may have been issues with the quality of the EEOC's evidence.  

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court.  That is a real risk in every discrimination lawsuit.  And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs.  Court costs can amount to $5,000 or more.  Think before you leap. 

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 We do this thing in litigation we call "depositions."  One side can ask questions of a key witness.  The testimony is recorded by a court reporter.  Depositions can be very dull.  They an also be very tense.  After all, if the parties got along, there would be no lawsuit.  Every client I have ever had was very stressed at being deposed for hours about their story.  Male and female clients have cried at various times during their depositions.   The atmosphere can become very tense.  So, when I see the following video clip, I am not surprised:  link.  This is an extreme deposition.  But, I am sure a good deal of stress preceded this deposition.  There are no judges present at a deposition.  But, as lawyers, we are supposed to carry on the deposition as if the testimony was being provided in court.  

This second video clip is more typical of depositions:  link.  The key in any deposition is to simply always be sure to tell the truth and never guess.  Some plaintiff employees feel the need to answer every question, even if the answer is a guess.  Do not guess.  There is no requirement that a witness remember every fact.  In fact, most witnesses do not recall every detail about a particular event.  Some witnesses feel the need to recall every date.  But, again, there is no requirement for a witness to recall every detail.  

In the world of litigation, "niceness" does count.  See this video clip in which a witness is supposedly tough in responding to a particular question.  The witness probably enjoyed some momentary satisfaction in expressing himself.  But, if that clip was shown to a jury, the jury would be far less impressed with his answer.  Juries do not appreciate "tit for tat."  On the contrary, juries respond to professional disagreement.  Everything a plaintiff or defendant do in a lawsuit is recorded and saved.  Every party needs to be sure they do nothing that could cost you a vote or two with the jury.  

Many clients press me to respond tit for tat when the other side takes a cheap shot of engages in unprofessional behavior.  We must resist the temptation to give in to our inner "Mongo."  As a well known litigation commentator, James McElhaney,  says, "Mongo not like.  Mongo want revenge!"  Mongo may gain brief satisfaction.  But, Mongo will probably lose the trial.  

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 A man has filed suit to obtain more time to complete the LSAT, the law school admission test.  See report.  The LSAT is critical to any admissions application for law school.  Title III of the Americans with Disabilities Act provides that an individual with a disability is entitlted to necessary accommodation.  Title III of the ADA applies to public accommodations, not to employment.  Matthew Scott Jones of Austin reports a diagnosis of ADHD and seeks additional time in which to complete the test.  He filed suit in the Western District of Texas.  

The Law School Admission Council, however, responds that Mr. Scott has not shown that his disability affects a major life activity.  That is, to qualify as a person with a disability, he must show that his disability affects a major life activity, such as walking, sleeping, eating or learning.  This is a frequent defense to such claims.  ADHD is one of those disabilities that is hard for some to understand.  All emotional disabilities carry that sort of liability.  They are simply hard to understand and, therefore, hard to litigate.  In such situations, the person with the disability must present "extra" good evidence that the requested accommodation is necessary.  

Litigation should not be like that.  A person with a legitimate disability should not carry an "extra" burden.  But, that is true of many areas of law.  The eventual audience is a jury of your peers.  Some of your peers do not understand some issues. Litigation is as much about education as it is about persuasion.  In fact, most test providers now know they must provide accommodation to persons who who are blind, cannot hear, etc. 

In this case, if Mr. Jones has not already provided medical documentation that he needs more time, he surely should present such evidence, now. 

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 The good news is San Antonio is doing better than the rest of the country.  Unfortunately, much of Texas is still hurting from the recession.  See Texas Workforce Commission's recent report.  Unemployment in San Antonio decreased in December from 7.0% to 6.8.  But, unemployment in Texas went up from 8% to 8.3.  Nationally, the unemployment rate was 10.0% in December.  So, Texas is doing better than the country and San Antonio is still doing better than the rest of Texas. 

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 Only infrequently do we get a glimpse into the inner workings of a court.  We have been looking at the inner workings of the Court of Criminal Appeals, the highest court in Texas for criminal cases, and the inner thinking of Judge Sharon Keller.  Now, we have the report of a relatively impartial observer, Judge David Berchelmann, of San Antonio.  Judge Berchelmann is a sober, careful judge. 

He finds that while Judge Keller's actions do not bring credit upon the judiciary, he believes that her actions did not rise to the level required to call for serious sanction.  He finds her decision to not keep the clerk's office open to accept a late motion "highly questionable."  From one judge to another, it rarely gets more direct than that.  In judge-speak, that is pretty critical of her actions. Judge Berchelmann thinks her decision was very poor.  I am not a criminal expert.  But, I am amazed that she would deliberately, knowingly, prevent an appeal in a death penalty case.  The stakes could not be higher.  Contrary to what many non-lawyers may think, few judges want to base any decision on a "technicality."  Most judges go to great lengths to avoid decisions based on administrative or clerical concerns.  One would hope most judges would be focused on justice, not on closing time.  Only more so when a man's life hangs in the balance.  Her actions bring great discredit upon her and her office.  

The scary thing is if this is what the Court of Criminal Appeals does in a high profile matter like a death penalty case, what are they doing in the less visible cases?  

 

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 Electronic monitoring in the workplace is still an area of developing law.  It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity.  It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.”  But, what is  “intercept”?  What does that mean?  For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission. 

The most important consideration is the extent to which employers have let employees know they may be monitored.  If employees know they are being monitored, then that will reduce expectations of privacy.  A frequent issue is use of work email.  If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity.  Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.  

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person).  In the workplace, there are varying levels of expectations of privacy.  For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker.  So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy.  But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring.  Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites.  96% block access to adult sites, 61% to game sites and 50% to social networking sites.  46% track key strokes, content and time spent at the keyboard.  12% monitor the blogosphere to see what is being written about the employer.  43% monitor employee email.  So, yes electronic monitoring is a continuing practice. 

 

 

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 Facebook account belonging to a tax lawyer is hijacked and used for scam.  Tax Girl's account was hacked and messages were sent out saying she had been robbed in London and needed money.  Tax Girl (aka Kelly Erb) has a wonderful blog on tax law.  Now, her FB account is suspended until the damage can be repaired.  Be careful out there in cyber space.....

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 LCPL Juarez, from San Antonio, was killed in Afghanistan last weekend.  See San Antonio Express-News article.   He was a graduate of Holy Cross High School. 

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 Recently, I wrote about a study showing that employers are losing more discrimination cases this past year.  This was a study published by Manpower, a human resources firm.  Yet, a separate study by two Cornell professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse.  These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs.  Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court.  In 2001, employment cases accounted for 10% of all federal lawsuits.  In 2006, that number dropped to 6%.  I am sure that drop is due to the ever increasing use of summary judgment in employment cases.  

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  "Reversal rate" refers to those times when the lower court finds in favor of one party or the other.  If you are a defendant, you have a 30% chance of reversing the district court.  As a plaintiff, you have only a 10% chance of obtaining a reversal.  Pretrial disposition refers primarily to summary judgment and motions to dismiss.  So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed.  While, the plaintiff has only a 10% chance at reversing the adverse decision.  

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear.  Defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  Thus, the authors point out, the federal system heavily favors the defendant (employer).  

As the authors explain, this result is counter-intuitive.  Discrimination cases by definition rely on evidence of intent and private conversations.  One would expect reversal of a jury decision to be rare.   Or, one would at least expect that reversal of a jury decision to be about the same for both parties.  Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury.  Such cases ought to be virtually immune from appellate review.  The appellate judges were not present at trial to observe witness testimony.  The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims.  That "attitudinal" bias would certainly comport with my experience with federal appellate judges.  They are, on the whole, remarkably skeptical of discrimination claims.  

But, so are federal district court trial judges.  They are on the whole just as skeptical of discrimination claims.  The authors note that federal trial level judges are skeptical toward discrimination claimants.  Discrimination plaintiffs are among the least successful sorts of claimants in federal court.  

The data from 1998 to 2006 shows the following success rates for plaintiffs: 

ADA - 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data.  This Cornell study published in the Harvard Law & Policy Review drew from federal numbers.  Federal district clerks keep painstaking detail regarding each lawsuit filed.  So, the Cornell study is based on solid data.  The Manpower study relies on data collected by Jury Verdict Research.  My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources.  The information is still relevant when compared to prior years.  But, JVR's data is probably not as complete as federal systemic data.   So, the Cornell study is scientific, while the JVR study probably is not.  It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.  

Continue Reading...

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 According to a recent study by Manpower and Jury Verdict Research, employers won only 39% of jury cases in the past year, tied for the lowest percentage in this decade.  The lowest win rate was 33% for age cases and the highest win rate for employers was disability cases with 52%.  The median settlement amount was $90,000.  But, before my current clients see this and go bonkers, I am sure that means there was some very large amounts raising that amount so high.  Most employment cases settle for less than $20,000 in my experience.  

Why is the win rate for employers lower this past year?  Russ Cawyer advances various reasons, all of which make sense.  With the downturn in the economy, many potential jury members are out of work.  That sort of experience makes discrimination and employment issues more credible.  Mr. Cawyer mentions that in two recent jury trials, many more potential jury members were out of work or had a close family member who was out of work.  And, as he adds, in a down economy, many employers will take their chances at trial instead of trying to settle the case.  

Russ Cawyer, a management side lawyer, sees this as part of a trend favoring employees over employers.  Perhaps, but like everything, trends come in cycles.  

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 Job troubles occur for hundreds of different reasons, whether due to discrimination, breach of contract or simply a bad economy.  CBS News offers some good tips to be prepared for that sudden, unexpected loss of your job.  

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 The City of San Antonio is spending $3 million to  make the Riverwalk accessible to wheel chairs.  Title II of the ADA requires that public places be accessible to persons with disabilities.  The Department of Justice supposedly enforces Title II.  The EEOC enforces a separate part of the ADA.  It is long past overdue that the Riverwalk be fully accessible.  But, most sidewalks in the older parts of all US cities are still not accessible.  See DOJ summary.   

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 Five members of a jury "friend" each other during a jury trial.  In another trial, one involving murder, jury members look up key scientific terms on Wikipedia during deliberations.  The jury looked up terms helping them understand how blood settles, an important issue in the murder trial.  Court personnel found the results of the research after the trial was complete.  Of course, a jury is supposed to only consider the facts and information presented during trial.  They are not supposed to do their own research.  Both instances occurred in Maryland.  That state is now considering adding jury instructions to specifically prohibit online research by jury members.  

In the Facebook incident, five jury members formed a clique, allegedly upsetting the jury dynamics.  That is a problem since most jury instructions tell the jury they cannot discuss the case until both sides have rested and concluded their presentation of evidence.  One of the five apparently heard suggestions on how the trial should turn out from an outside observer.  One of the parties to the trial is seeking a new trial.  So, yes, forming a clique too early would be a problem.  See ABA Bar Journal for more info. 

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 The Texas Supreme Court has once again overturned a jury verdict and a successful appeal by a plaintiff.  In Whirlpool, Inc. v. Camacho, Texas' highest civil court found deficient the testimony of an expert who testified that a fire was caused by a faulty dryer.  The fire took the life of teenage Joab Camacho and consumed the Camacho mobile home.  

In the Court's decision, it explained in great detail how the dryer works and how the heat is vented, even providing a cross-section of a dryer vent.  The Court faults the Plaintiff's expert for not conducting different tests that might help explain the cause of the fire.  It is never a good sign when an appellate decision parses evidence so carefully.  The court comes very close to weighing the evidence.  Weighing evidence, of course, should the province of the jury, not a group of judges. 

The high court unfortunately gives very little weight to the jury findings.  There is supposed to be a presumption in favor of jury findings.  Any expert goes through tremendous scrutiny both at trial and at the intermediate appellate court.  The Supreme Court disregards all that scrutiny in overturning this decision. 

Former Mayor Phil Hardberger wrote a nice law review article on the corporate friendly Texas Supreme Court eleven years ago.  He was still an appellate judge at the time.  This recent Texas Supreme Court decision continues that unfortunate trend supporting big business at the expense of families and individuals.  

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 Gene Lee writes a good post about whether workers should be paid for checking email after hours.  More and more employees are being required to check their email after work.  Accoding to a 2008 Pew internet survey,  50% of workers said they check their work email on weekends.  20% of workers said they were required to check work email and respond to it after hours.  Half of Blackberry and PDA users said they were required to check and respond to work related email after hours.  As Gene notes in his post, debate swirls around whether employees should be paid for this time.  

In July, 2009, several T-Mobile employees sued for this uncompensated time.  It is hard to understand how the employer would not be liable for this time.  Anything a worker does at the employer's request is compensable time.  The real issue is likely to be how liable the employer will be.  The employer should not be liable for 24/7 minimum wage coverage.  But, if the employer requires a particular duty or task, then that task must be compensated.  That is what the Fair Labor Standards Act is all about.  

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 For the first time in months, the national unemployment rate has dropped.  Down to a "mere" 10%........

But, as the Workplace Prof mentions, that does not mean it will continue to decrease.  In fact, it might well increase before it decreases.  Since, once things start looking better, folks who had given up will re-enter the workforce and start looking for work.  When they re-enter the workforce, they will be counted as unemployed looking for work. 

The good news for San Antonio is that our economy continues to perform well.  San Antonio ranks second in the country for employment opportunities in the next economic quarter.  In October, we had an unemployment rate of only 7%.  I know people are still hurting, because that is who calls me.  But, we are doing much better than other parts of the country. 

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 Applying for unemployment benefits is a bit of a mystery, even to those of us who do employment law.   Fortunately, TWC has some pretty good information online to explain the process.  In general, you get unemployment benefits if you lose a job through no fault of yours.  So, if you have committed some work infraction or ignored attempts to improve your work performance, then you will not receive benefits.  If an employer will claim you have performed poorly, it is important for the employer to document the alleged poor performance.  Many hearing officers will not credit a claim of work infractions or poor performance if the employer cannot document these issues with contemporary written warnings of some sort.  Even if the employer can document the alleged poor performance, the employer must be able to prove that the employee had knowledge of these written warnings.  

But, even if the employee can pass the alleged poor performance hurdle, s/he must still have wages with TWC payments for the prior two calendar quarters.  And, of course, in order to receive benefits, the employee must attest that s/he is applying for jobs every week.  

Most issues I see involve requests for accommodation that were never answered; persons missing work due to illness; or issues regarding higher standards of work that were not communicated to the employee.  In one case, at the hearing, it turned out that the employer did not believe they had fired the employee!   Since it was not clear the employer had actually terminated the employee, the employee lost her appeal and her benefits.  

So, for those of you filing for unemployment or who think you will soon be filing for unemployment benefits, be sure to:

1. Make certain you have actually been terminated;
2. Find out the stated reason for your termination - get the reason(s) in writing as much as possible; 
3. Provide evidence to TWC (and to the employer), such as doctor's notes prior to the hearing; 
4. Notify TWC regarding any key witnesses - provide a phone number for the witness to TWC f(and to the employer); and
5. Review the TWC website - the employee and employer info. 

Note this TWC page.  It is meant for employers, but much of it applies equally well to employees.  It has some good info regarding do's and don't's at the hearing itself. 

Hearings, these days, are almost always over the phone.  Most hearings do not emphasize the rules of evidence or rules of civil procedure.  So, an applicant for benefits does not necessarily need a lawyer.  But, if you are not sure if you need a lawyer, contact an employment lawyer to at least discuss your case before the hearing. 

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 We can count on Oprah for many things.  One is a recent explanation of the rights for new mothers under the Family Medical Leave Act.  Thanks, Oprah.  

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 So, you're diagnosed with depression.  It will not get better.  You are unemployed for a year and a half.  Your problems mount.  You live in Canada, so you see see gray skies everyday.  Then, your doctor tells you to get away to some sunny climate for a brief time.  You take a trip, take some photos and then you post them on Facebook.  Oh oh.  An insurance company is paying you what are described as sick leave payments.  The insurance company sees those pictures and concludes your depression is over and cuts off your benefits.  That is what happened to one former IBM employee according to Delaware Employment Law Blog.  

The former employee says she is happy in the moment but that before and after she continues to suffer from Depression.  Her lawyer has asked for a new psychiatric evaluation.  Good idea......

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 School employee loses job because he sent an email containing a one word obscenity to a blog.  See ABA article.  When the employee was confronted with the email, he resigned.  Another example of someone who publishes something controversial on the internet under the mistaken belief no one will ever see it. 

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 The Genetic Information Nondiscrimination Act (GINA) takes effect  Nov. 21.   GINA prohibits discrimination based on genetic information.  Among its provisions, it will prohibit insurance companies and employers from requesting family medical history from employees except for a few circcumstances.  It will prohibit insurance companies from using family history information to set premiums or deny coverage. 

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 Today comes another Veteran’s Day.  Many of us recall a grandfather who served or an uncle who endured.  But, as Pres. Obama, noted, the same service we grew up hearing about occurs today, everyday.  The 13 who died at Ft. Hood exemplify the thousands who have endured in this generation’s two wars. 

 CW2 (Ret) Cahill was killed at the age of 62.  Retired, he came back to Ft. Hood to serve those deploying and returning.  When I went to Iraq in 2005, many of those appearing with me at Ft. Jackson, South Carolina were retirees who volunteered to come back to active service and lend a hand. 

After retiring as a major with service in the National Guard, CPT Gaffaney persisted for three years to return to the Guard as a psychiatric nurse, his civilian occupation.  Hampered by a hearing deficit, he pushed to serve at this time of need.  He wore down the Army and finally returned for a second career as a Reserve officer.  When I reported to Ft. Jackson in 2005, we had one Lieutenant-Colonel, who pushed and pushed for two weeks to be sent to Iraq.  He had diabetes.  He swore that his meds could be obtained in Iraq.  But, the medical folks at Ft. Jackson did not believe him and would not let him go.

When I was in Iraq, I went on a mission to visit some significant Iraqi officials.  On that convoy was a young female NCO.  She had graduated from college right after 9/11 with an engineering degree.  She joined the Army as an enlisted person and became an intelligence analyst, probably a very good one.  Here she was going outside the wire to collect intelligence.  She could have been anywhere that day, but she chose to be in Iraq, risking IED’s and more to collect critical information first hand. .

When I reported to Ft. Jackson in 2005, some 20-30 of my fellow soldiers were retirees who volunteered to come back and serve as Civil Affairs officers and NCO’s. 

Pres. Obama said: "You may remember the stories of a grandfather who marched across Europe; an uncle who fought in Viet Nam; a sister who served in the Gulf.  But as we honor the many graduates who have served --  all of us -- every single American - - must acknowledge that this generation has more than proved itself the equal of those who've come before." 

The large group of us, some 100 of us, were sent to California after Ft. Jackson.  We were to marry up with our Civil Affairs units and conduct train.  We had seven "full bird" Colonels in our group.  A sharp, able bunch.  The Civil Affairs brigade called them to a meeting.  The brigade told the Colonels, " we have some good news for you, we do not need you and you can go home."  The Colonels responded, "no, you called us from our civilian jobs, you must take us.  We are here to serve and we will serve."  One or two had contacts at the Pentagon.  They pressured the Civil Affairs Brigade to take them and put them to work.  All seven served their tours with distinction.

Pres. Obama: “We need not look to the past for greatness, because it is before our very eyes.” 

Those of us who reported to Ft. Jackson in 2005 formed a bond that lasted throughout our twelve month deployment.  Near the very end, in the midst of our two week departure for home, a brave, gallant First Sergeant was killed.  Losing one of us was a kick in the gut.  Soldiers I admired blamed themselves, for nothing. 

But, I know:

Pres. Obama: ". . .  here is what you must know: Your loved ones endure throughout the life of our nation.  Their memory wil be honored in the places they lived and by the people they touched. Their life's work is our security, and the freedom that we all too often take for granted. Every evening that the sun sets on a tranquil town; every dawn that a flag is unfurled; every moment that an American enjoys life, liberty and the pursuit of happiness -- that is their legacy.”

Somewhere there is a town that is tranquil, a flag unfurled, and Americans smile because there are men and women like CW2 (Ret) Cahill, CPT Gaffany and 1SGT Saenz. 

 

 

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 I do not what is going on, but there is another story about a Manager allegedly telling her employees not to speak Spanish in the workplace.  See local San Antonio Express News story.  This was regarding a non-profit agency.  Sometimes, I just wish I could give a massive presentation to all Managers and manager wannabes.  Do not tell your employees to speak only English unless you have a very good reason......

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 Early reports (always suspect) are that the shooter at the Ft. Hood massacre was motivated at least in part by some sort of Islam fervor.   See this post also.   But, his cousin was quoted as saying the shooter was very upset by the horrors of war.  Maj. Hassan counseled many soldiers at Walter Reed Army Hospital.   Through those soldiers, he apparently saw some of the horrors of the Iraq war.  I am sure the counselings had to play some role in the massacre.  As a few vets said in the Nov. 8 edition of the Express-News, something like this was sure to happen sooner or later.  

Still not told in this war is the toll it takes on soldiers, more so than past wars, such as WW II.  Suicides are way up in the Army now, at levels not seen since the end of the Viet Nam war.  The Army was much bigger then.  So, this is a large concern. 

 As I tried to explain to a friend, I do not doubt that "good" Moslems will condemn this massacre.  As Maj Hassan's Imam said, these are not the actions of a good Moslem, at all.  I know.  I served with a couple of truly amazing Moslems in Iraq.  If they were Christian, I would describe them as very, very Christian.  They displayed over the year I knew them a remarkable humility and kindness in the face of great risk and danger. 

Shortly after I left Iraq, my translator was tortured and killed for no greater crime than she worked for the USA. Everytime we went outside the wire, we depended on some Moslem translator and he depended on us,   Yes, Moslems kill.  But, many Moslems risk their lives for us and for their own country. 

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 See New York Labor & Employment Law Report for some good tips on preparing job evaluations.  Written by a labor & employment law litigator, he is right on regarding many potential pitfalls  

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 Fredericksburg, Texas native, SSG Chris Staats was killed in Afghanistan.  Another Texas Guardsman was killed in Afghanistan.  SSG Staats was in the 143rd Inf Detachment our of Austin, Texas.  He was most recently living in Boerne.  May he and all our lost vets rest in peace. 

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 This is not really related to employment law, but here is a nice post on how to reduce your taxes from someone who knows what she is talking about.  Kelly Erb has a good blog on tax law.  She penned this post with a view toward the average consumer. 

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Personal emails at work are sometimes protected from intrusion and sometimes not.  The email system belongs to the employer.  One indicator that work generated emails may be protected occurs when the employer allows some personal use of email.  See the case discussed at one blog post.  But, see another case discussed at a different blog in which the employee's emails were found not to be protected from review by the employer.  The biggest difference in the two cases is that in the first case, the employer did allow some personal use of the employer's email system.  That court found that yes, the employee had a reasonable expectation of privacy in such a situation.  

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 In a recent study conducted by two Univ. of Phoenix professors, it was found that many workers reported an increase in overbearing supervisors during these lean, recessionary times.  These employees reported that when they would question their employer about the company's prospects, they were essentially told to suck it up and quit complaining.  So reports the San Antonio Express-News.   The employers were told to simply be thankful they had a job and were threatened.  The researchers were surprised at this result, which they said permeated across the country in a survey of over 1000 workers.  

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 This is why employees need lawyers and why employers get sued.  A fellow blogger, Evil HR Lady, reports that some hospital has told its medical staff they must stay away from work when they are ill with the H1N1 flu and such illnesses will count as Unexcused Absences.  Such time will count as an "occurrence."  As HR lady points out, unexcused absences will presumably be used for discipline.  I do not think you can ask for a more clear example of a violation of the Family Medical Leave Act or, possibly, the Americans with Disabilities Act.  You make them stay home and then penalize them for staying home.  Any discipline for a genuine illness very likely violates the FMLA or the ADA.  That is a shame. 

To her credit, HR Lady points out the need for HR personnel to demonstrate leadership on such issues.  If more HR ladies and gentlemen did so, there would be much less need for lawyers like myself.  A tip of the hat to Not So Evil HR Lady for taking the high road.....

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 Are pantsuits still verbotten as professional wear?  Recently, the new US Solicitor General (ie, the person who actually argues cases to the US Supreme Court on behalf of the federal government) appeared before the US Supreme Court wearing a pantsuit.  One might shrug and think no big deal.  But her choice became the topic of discussion at one legal blog and with another legal tabloid.  I thought we were past this, but hope the US Supremes, if no one else, was able to focus more on the quality of the Solicitor General's legal briefing than on the perceived quality of her choice of clothing. 

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 Employers do the craziest things.  One employer in Tennessee, according to this report, tested employees for using *lawful* prescription drugs.  Yes, the employer was testing for prescription drugs. They apparently rook action against employees who refused to stop taking some prescription drugs.  The EEOC filed suit, saying these tests amounted to unlawful medical inquiries.  Unlawful medical inquiries would violate the Americans with Disabilities Act.  Those crazy employers......

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 The real Norma Rae died last week.  Chrystal Lee Sutton worked in a  North Carolina textile mill when she started trying to organize a union at the plant due to the low wages and poor working conditions.,  She was fired and forcibly evicted from the plant.   As she was being taken away by the police, she stood up on a work table and held a sign that said "Union."  She slowly turned around so everyone could see the sign.  Just like in the movie.  Her co-workers stopped working, cut off their machines and gave her the victory sign.  All of a sudden, the plant became very quiet.

A few years later, a court ordered that she be awarded lost pay and reinstated back to her old job.  A few more years later, the movie "Norma Rae" was made and now her story is history......

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 Sometimes, the best advocacy is the least advocacy.  Subtle can persuade better than histrionics.  Read Mike Maslanka's post about the president's speech last week.  When the President was accused of lying, he did not over-react.  He under-reacted.  His subtle reaction said more than histrionics ever could.  Mike then relates a similar experience from one of his trials.  Mike ia primarily a defense lawyer doing labor and employment cases.  So, the plaintiff he refers to was probably an employee.  An employee who blurts out anything demeaning or insulting will surely lose.  Mike played it well: he under-reacted.  He probably aroused the jury's sympathy.  

Its a scary thing to lose a job through no fault of yours.  Its scary to get in trouble at work through no fault of yours.  But, do not over-react.  In trial, the judge and jury see everything you do.  Whatever you do becomes magnified.  The jury may not understand legal issues.  But, they will surely understand human dynamics.  Under-reaction says much more.  

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 A former Corpus Christi State School employee was convicted in the "fight club" trials.  D'angelo Riley was sentenced to 4 years in prison and 8 years probation for arranging some of the fights.  One report said he was one of the ring leaders.  He was the second state school employee to receive prison time for these fights between persons diagnosed with mental retardation.  

This is a shameful episode in our society.  We have a wonderful state, but we underfund our state schools.  State schools is where we send our citizens with mental retardation.  I have discussed this before.  

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 What you say online can come back and get you in court.  See a list of such cases from IMS.  

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If an employer accesses an employee's social networking site without permission, or worse, accesses the site under threat of termination, then the employer may be liable for a claim of invasion of privacy and violation of the federal Stored Communication Act.  Such was the result in a federal lawsuit in New Jersey.  Delaware Employment Blog explains that the employer noticed a private website on Myspace.  The Myspace page was put up by an employee and was used by many employees to discuss work.  The manager saw negative comments about the restaurant where they all worked.  Management then coerced a co-worker into providing the log in and password.  They later fired two employees for poor attitude based on their comments on the private Myspace page.  Pietrylo v. Hillstone Restaurant Group, Inc.   A jury trial found in favor of the two fired employees and against the restaurant. 

Delaware Blog suggests that it was the act of forcing the employee to give up her login info for a private closed membership site that made this case actionable.  

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 Workplace bullying leads to insomnia, even for those co-workers who merely observe the harassment.  In a study conducted of middle aged persons in France, men and women who suffered some harassment at work were twice as likely to suffer sleeping problems.  For the study, they defined bullying as hostile actions designed to offend or oppress over a long period of time.  Men who simply observed bullying were 60% likely to suffer trouble sleeping, also.  Women who observed bullying were 20% more likely to also suffer some insomnia.  The study was conducted by University College of Dublin, Ireland researchers.  

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 I used to get referrals from the San Antonio Bar Association.  These referrals included many clients who had never spoken to a lawyer anywhere.  Many of them would call complaining basically about unfair treatment.  I still get calls like that, sometimes.  They might say, "my employer fired me because they claim I did not call in, but I did call in."  I have to explain to potential clients like this that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.  I have talked about this before. 

We have what is known as "at-will" employment.  An employer can fire you for any reason (other than various types of discrimination).  Just as the employee can quit for any reason.  So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you.  I wish that was not true.  I wish our state laws were different, that they required some sort of "just cause" for termination.  But, most states do not require just cause for a termination.  Only some 10 states require a good reason for a termination.  In the rest of the states, such as Texas, an employer can fire you for the wrong reason.  

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 If you have a problem employee, it is important to document those problems.  Written counseling serves many purposes.  Michael Fox discusses a case in which the employer did not document those problems and lost a claim for discrimination because of that failure.  Of course, he assumes the alleged work problems were genuine.  Maybe they were genuine and maybe they were not.  If the issues were genuine, then it is even more important to document those problems.  A good employee, or a formerly good employee, as this lady appears to have been, deserves a chance to improve.  

Of course, as Mr. Fox notes, it hurt the employer that it did not follow its own progressive discipline process.  That failure to follow its own policies can help show that the employer's concerns are not genuine and have been fabricated.  

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 A veteran of the Iraq war gets life for killing unarmed civilians in Iraq.  Reports the CBS news website.  I spoke about this sometime back.  It is a heinous crime.  But, I have noticed that many of the line troops, the ones conducting "kinetic operations," never work with the "nice" Iraqis, the ones who want to better their country.  That can lead to a jaded view.  

As I mentioned in my post on May 5, this would be a difficult trial for a defense attorney, to try to explain to a jury what life was like for this young soldier in Iraq.  That is one of the many challenges for every trial lawyer in every trial. 

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A recent Judson High School graduate, LCPL Chris Baltazar was recently killed in Afghanistan.  Reports the San Antonio Express-News.  The third San Antonian killed in recent weeks.  

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 Eric Holder, the US Attorney General, is pushing the Dept. of Justice back to enforcing higher impact civil rights.  So says the New York Times.  The DOJ will focus more on high impact litigation, instead of the former administration's preference for individual cases.  DOJ can prosecute employment discrimination cases against state or local governments.  They can also prosecute employment discrimination cases against federal contractors.  

What this means is that DOJ's Office of Civil Rights will focus on pattern and practice sort of cases involving many employees, not just one or two.  That makes sense.  DOJ's resources are limited, just as the EEOC's resources are limited.  It makes more sense to focus on cases ainvolving more potential victims of discrimination.  

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You thought your job was tough.  One woman sued her employer, the labor law firm Littler Mendelsohn, for not allowing her bathroom breaks.   Since they do labor and employment law, one can only presume they believed they have support in the law somewhere for no bathroom breaks.....

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 It will probably take months for Judge Berchelmann to review and draft a statement of facts regarding Judge Sharon Keller.  As Rick Casey mentions, Judge Berchelmann is well-suited to this task.  I have always known him to be a no-nonsense sort of a judge.  After he issues his opinion, Judge Keller will surely appeal a negative opinion.  So, a final result is many, many months away.  But, in the short-term, Judge Keller has suffered a black eye.  She knew the late call from the TDS lawyers was significant, yet she did not mention it to any other judge. 

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 It is a critical thing to understand in every lawsuit.  Many people just flat do not remember what happened.  Ed Marty, the general counsel for the Court of Criminal Appeals, in the end, simply admitted that he did not remember what he told Judge Johnson.  This from a trained lawyer with many years experience.  

In one of my law school classes, a professor told a story about something another professor did once to illustrate this point.  The professor had someone come by right at the start of class and pretend to shoot the professor.  The professor falls to the floor and then quickly rises and reassures everyone he is ok.  He then asks the class to describe the shooter.  Everyone in the class had a different description.  Everyone.  Trials and lawsuits are not like on TV.  Everyone may had a different recollection about what happened.  The truth may be very elusive.  

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 A soldier from San Antonio was killed in Afghanistan, yesterday.  SSG Bowen died from wounds suffered in an IED (improvised explosive device, aka "roadside bomb") explosion.  I think we should all devote a moment of silence to those killed serving you and I.  

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 It is concerning that Judge Keller says she would do nothing different if the same situation arose.  She is the same judge who years ago drafted an opinion regarding a man wrongfully convicted of rape.  DNA evidence exonerated the man after spending many years in prison.  When the appeal came through the CCA, she wrote the opinion saying that just because his DNA did not match the semen found on the victim, he could still have performed the rape.  She claimed that the man could have used a condom.  Such an opinion is so far from the reality that I know.  

Judge Keller worked for the Harris County DA office for many years.  Most of her time was spent in the appellate section.  Lawyers who do primarily appellate work are often just not exposed to the realities of witnesses who forget, prevaricate or simply make mistakes.  Appellate lawyers work with a cold record.  I spent 25 years in the Army Reserve and National Guard.  I was a combat arms officer.  It always seemed to me that combat arms soldiers had different views than some combat support soldiers.  Our exposure to different realities colored our views.  It is similar to clerics who spend little time as a pastor.  Such clerics often do not make the best bishops.  You need a certain background to understand the complexities of the human condition.  

Yes, a judge's background does make a difference.  

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 Well, Judge Keller admits she knew something.  She admitted that when the call came, she knew at a minimum that the lawyers for Michael Richard called about the execution and they were not ready to file something.  See the San Antonio Express news story.  That is pretty damaging.  Its common knowledge that shortly before a scheduled execution, lawyers will file something to try to stop it.  But, this was even more true since at the time the US Supreme Court was considering accepting a challenge to the lethal injection system.  

The big question will be, for pete's sake, she did not refer such a call to the duty judge, Cheryl Johnson.  Reading between the lines, it looks to me like she believed she was simply stating a fact.  But, if she knew at a minimum they were not ready to file something and it was very likely they wanted to file something, she had to know there was an issue of some sort - an issue that must go to the duty judge.  

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 I do not know what happened, but, yes, if a judge fails to follow procedure, then that is a problem.  The trial of Sharon Keller started yesterday.  She is presiding judge of the Court of Criminal Appeals.  That means, she is the chief judge for the highest court in Texas regarding criminal cases.  If she did know that attorneys for Michael Richard were calling for more time and she did not give them that time, then, yes, that would be a pretty clear violation of something.  

The trial is starting out not too well for Judge Keller.  Another judge on the Court of Criminal Appeals  disagrees with Judge Keller on a key fact: did anyone tell Judge Cheryl Johnson, the duty judge that day, about the call asking for more time?  Judge Johnson says no, no one told her.  If so, that would be a pretty clear breach of procedure. 

The State Commission on Judicial Conduct used to be a fairly weak organization.  But, some ten years ago, they started to truly enforce judicial ethics.  This is by far the biggest case they have taken on.  But, if the allegations prove to be true, it is one of the more egregious cases they have dealt with to my knowledge.  

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 If you add your boss to your Facebook page, be sure to remember that when you start complaining about your job.  Workplace professors describe a British worker who apparently forgot she had added her boss.  She described him later as a "pervvy wanker" and said other unflattering things about him and her job.  The boss was not amused.....

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 One of the trials regarding the fight club at Corpus Christi State School started on Monday.  It has attracted national attention.  I have talked about this before. It is shameful conduct at the expense of some of our most vulnerable citizens.  But, let's face it, we have the state school system we are willing to support. Our state school system exists as a place for those diagnosed with mental retardation.  The state school system has a history of many, various abuses.   Low wages and weak support lead to high turnover and the sort of climate that can produce a "fight club."    

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 So, the four day work week is a popular success in Utah.  As reported by the workplace professorblog.  As some might recall, Utah state government employees went to a 4 day work week earlier this year, I believe, due to budget issues.  Apparently, it has been a success and very popular with many state employees.  Over 80% prefer the 4 days a week (10 hours per day) schedule.  

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 We don't understand it.  But, so many Iraq and Afghanistan veterans get it:  traumatic brain injury.  LTC Rivas got it and apparently died from it.  We get it stateside, too, but TBI has become a singular feature of the current war.  The IED's (improvised explosive devices  or "roadside bombs") are unique to this war.  When they detonate under an armored HMMV, the blast reverberates inside the thick walls.  The concusion stays with you.  When I was in Iraq, a couple of my buddies survived a couple of IED's.  They simply drove through the explosions.  But, the ringing in the ears, they said, stayed with them for months afterward.  

LTC Rivas appeared in the news and at a forum or two on TBI.  He had served in Civil Affairs units, as I did for a time.  He was trying to put his life back together.  

Many, many IED's result in no deaths.  But, how many result in TBI?  The Army is researching that question.  I think the answer is far in the future.  TBI itself is very hard to diagnose.  Early studies indicate that TBI develops over time after the traumatic event.  In the meantime, good soldiers like Ray Rivas suffer due to our lack of knowledge.  

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 It must be tough in prison.  Allen Stanford, the investor who stands accused of bilking his clients out of millions of dollars has filed a motion asking to be transferred from the Conroe detention facility to a downtown Houston facility.  Seems the air conditioner at the Conroe facility has been out for a week. There are no windows.  It sounds tough.  He has not been to trial, yet.  So, we need to presume he is innocent.  

When I was with the US Army in Iraq, we had air conditioning most times.  But, hey, what about those times when we did not have a/c?  Guess we should have asked for a transfer to some other facility, too.....

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 Half a million dollar verdicts are very rare in employment cases.  As I have explained to many clients, the big dollar verdicts generally go to the clients with big lost income.  CEO's, doctors, etc. get the big verdicts because they lose so much money in salary and retirement benefits.  So, it is no surprise that a $500,000 verdict was won by a doctor in California.  

But, note also what the employee's lawyer says: the employer's lawyer made the mistake of sneering at the employee during the trial.  The big dollar verdicts require something else: they need a "good" bad guy.  Juries get upset when they award large amounts.  Studies show that generally juries get mad at someone when they award large amounts.  

People complain about the McDonald's spilled coffee case from many years ago.  What most people do not know is that the McDonald's executive who testified about how supposedly safe their coffee was testified badly.  He came across as rude and arrogant.  

So, if you want a million dollar verdict, you need to be making six figure income.  You also need a "good" bad guy.......

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 A lawyer friend had a client once who insisted on asking for $1.5 million to settle a discrimination case.  The client did not make anywhere close to a six figure salary.  He had lost very little income income.  My friend the lawyer, tried and tried to describe to him the reality of low damage cases and how much value they held.  After thinking about it a few days, the client came by the office to drop off some papers.  He stuck his head in the door.  Said he had been thinking about it.  Said he was prepared to lower his initial settlement offer.  ...   Said he was willing to settle for $1.0 million.  

He just did not get it.  He did not get that you need to trust your lawyer, not some friend or relative who claims to know something about the law.  He did not get that low damages equals low value in settlement talks.  If you have lost little or no money, then your case is worth little or nothing.  If you do not trust your lawyer, then you should hire another attorney.   

When you hire a lawyer, you hire him/her for her judgment.  Skills, education, experience are critical components.  But, the most important factor is judgment.  Is your lawyer objective enough?  Will she believe in your case yet still be objective enough to speak on your behalf

As for that client who came down to a "reasonable" settlement offer of $1.0 million, my friend learned later that the client was relying on advice from a paralegal friend.  My friend lost the case on summary judgment.  He recommended that the client not appeal.  But, the client found a lawyer anyway and appealed.  He lost.  

A settlement offer of $1.0 million in that particular case was so unreasonable that the employer never responded with a counter-offer.  As I have told many clients, its one thing to suffer unfair treatment at the job.  But, to let the son-of-a-gun win at trial or during the lawsuit just makes it all so much worse.  

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 For a good summary of the rights of Texas employees when they lose their job, see Aaron Ramirez' post from last March.  Note that Aaron makes no mention of the employer paying the employee for any accrued vacation or sick leave.  An at-will employee, which includes most employees in Texas, has no right to be paid for vacation and sick leave.  You receive severance pay only if the employer expressly agrees to do so.  

A terminated employee has the right to continue health insurance.  But, you will have to pay the employer's portion, wichh often makes the health insurance too expensive. 

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 The City of Bozeman, Montana will no longer require Facebook passwords as part of its application process, as reported in Delaware Employment Law blog.  That was a risky decision.  How many applicants would pass up this relatively large employer (in that neck of the woods) if they have to reveal too much.  Too, the city is a government entity.  Requiring a Facebook password would present privacy issues the city need not face.  

But, take this as a warning - there may be more employers out there considering such a measure.  The best protection for any employee is to simply be careful about what you put on Facebook, Myspace, etc.  

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 Employers, if they are doing their job, should counsel an employee in writing for a serious offense.  Part of that counseling is the need to verify that the employee has received the written warning and understands it.  That is why the employer will ask the employee to sign the disciplinary warning.  Signing does *not* mean you agree with it.  It only means you have received the warning.  

A very helpful website, www.canmybossdothat, explains this and more.  

When you do get a written warning, if you can, you want to add a brief sentence or two about your side of the story.  Add your story and then sign it.  Ask for a copy of the write-up if a copy is not offered. 

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 They are perhaps our most vulnerable citizens.  We refer to them as developmentally disabled, today.  We used to refer to them as mentally retarded.  Whatever the name, they deserve better.  Trial over the so-called fight club at Corpus Christi State School has started.   Developmentally disabled function at many different levels.  Some can live quite independently.   Others, must rely on places like our state school system.   But, all deserve better than what they got at Corpus Christi State School.  

My previous employer, Advocacy, Inc. is charged with overseeing state schools and other mental institutions.  As Beth Mitchell mentions in this story, the larger concern is that administrators had to have had some idea of what was going on.  What, if anything, did they do about the fight club?  Why did it take news reports for them to finally take some action?  For more information regarding the state wide problem, see Advocacy's report.  

I visited San Antonio State School many times.  SASS residents are developmentally disabled.  I found many of the administrators to be concerned, dedicated professionals.  But, we do pay the first line aids bottom dollar.  State schools suffer from a high turnover.  We can do better.  Will we?  

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 I'll be gone this week and next.  No. 1 son, No. 2 son and I will travel to Yellowstone National Park.  We have been to a couple of national parks and they have all been just excellent places to visit.  If you don't vacation sometime, I recommend that you do so.  Even the smallest budget can manage something.  if you do take vacations, I very much recommend our wonderful, amazing national parks.  

A couple of weeks ago, No. 1 son and I went to Northern Tier canoe base.  After that "high adventure" trip, a much less strenuous trip to Yellowstone is very appealing.....

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 You love your job.  You love your job so much that you like to blog about it when you get home.  But, what if your employer does not like your comments?  A recent federal appeals court decision applies some limits to what you can say in your post.  See Richerson v. Beckon. 

The only reason you have some rights is if you are a government employee.  As a public employee, you are entitled to some 1st Amendment rights when discussing issues that affect the public.  

The 9th Circuit Court of Appeals drew the line at several vituperative and highly person comments. That makes some sense, since 1st Amendment speech must be concerned with public, not very personal views.  But, remember, you only get to make such comments in the first place if you are a public employee commenting on matters of public concern.  Private sector employees have no comparable free speech rights. 

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 Unemployment rate is up to 9.5%.  The average work week is now down to 33 hours per week, the lowest since 1964.  This is not good nationally.  Fortunately, we are in Texas and are somewhat insulated from the bleak picture.  

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 In a recent decision, a federal court in California found it unlawful for an employer to monitor an employee's key strokes in order to obtain his password to a personal email account.  The U.S. district court found this action violated the Electronic Communications Privacy Act, passed in 1986.  The decision, Brahmana v. Lembo,  is important.   While the email account may be personal, the equipment used to access the account belongs to the employer.  The courts have wrestled with this issue for some time and will, no doubt, continue to struggle with he boundaries between employee property and employer property. 

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 Judge Kent decided to resign, after all.   Apparently, he decided resignation was safer than impeachment.  Judge Kent, you will recall, was essentially found guilty of sexually harassing his court staff.   I discussed his case a couple of times before.  

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