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%.
My friend Gene Lee wrote a good post about how long discrimination lawsuits can take. He refers to statistics showing that from start to finish, the average lawsuit will take 22 months. That sounds about right for the San Antonio area, also. Here in South Texas, we can file the typical discrimination lawsuit in state or federal court. The length of litigation time is about the same for either venue.
As Gene explains, the discovery process will take months, sometimes years. In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer. So, as one might expect, employers.jpg)
resist providing evidence whenever possible. "Discovery" is the process we use to obtain relevant evidence. Discovery includes written questions and requests for documents. It also includes depositions. Discovery is often the heart of the case for both sides in an employment suit.
Depositions are the biggest cost in any lawsuit. Gene Lee also put together a nice post about the costs of a lawsuit. As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.
And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case. Employers fare very well in appellate court. So, they have strong incentive to contest any jury wins. The appeal itself here in South Texas will require another 1-2 years to complete. If one must appeal to the Texas Supreme Court, that would take significantly longer. I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling. Ouch!
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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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No one supports frivolous lawsuits. But, few have done as much to stop supposed frivolous lawsuits as has Bob Perry. The huge home builder from Houston, Texas has donated tens of millions of dollars to political contests largely to oppose consumer lawsuits. He funded the SWIF boat for truth campaign against John Kerry. He helped George Bush become governor of Texas. His pet issue throughout all these donations has been arbitration. The Texas Residential Construction Commission was created largely due to his support of key state legislators. Due in no small part to Bob Perry's largesse, binding arbitration is now a fact of life for most Texans from employees to home buyers to automobile owners.
One particular lawsuit by one of his home buyers has dragged on for over a decade. Bob Perry was determined not to let this case go to a jury. He wanted it to go to arbitration. It did go to arbitration, where Bob and Jane Cull were awarded $800,000 by the arbitrator. Yes, some consumers do win in arbitration. Mr. Perry was not satisfied. He found a way to make binding arbitration not so binding. He appealed twice and lost until he came to the Texas Supreme Court. The Texas Supreme Court is a very friendly venue for large corporations and for Bob Perry. The Texas Supremes came out for their man. Bob Perry had donated $21 million to the Texas Supreme Court between 2006 and 2009. Every member of the court had accepted money from Bob Perry. Yet, not one member of the Texas Supreme Court recused themselves from his case. In a close 5-4 decision, the Texas Court disallowed the arbitration award and sent it to trial in 2008. I am sure this is the only Texas case that has ever gone to arbitration but was overturned on appeal in the past ten years.
So, yes, Bob and Jane Cull's case then went to a jury, an actual trial in 2010. The Cull's told the jury how the attic caved in and the foundation heaved and how Bob Perry refused to fix it. On March 1, 2010, the jury responded. They awarded the Cull's $58 million, including $44 million in punitive damages. Bob Perry will surely appeal. He has already described this jury verdict as "jackpot justice."
The Cull's originally bought their dream home, their planned retirement home in 1996. Now, in 2010, with years more for appeals, they will not get their home fixed anytime soon. But, this "jackpot justice" jury award will surely help them if Bob Perry decides to discuss settlement.
I spoke about depositions in general a couple of weeks ago. Now, let's talk about employee depositions in a San Antonio employment lawsuit. The plaintiff employee deposition is critical to success for any employment lawsuit. The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story. It is not as easy as it sounds.
The employee has to get past some of the pain, enough to testify without breaking down. Too many tears will impede a story. And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part. Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?" No one is perfect, so if you answer, "none," you risk appearing dishonest. If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.
The plaintiff employee deposition will go as long as several hours and as short as a couple of hours. It is emotionally draining for every client I have had. It can get intense. The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers. I have had many clients cry either during the deposition itself or during a break.
Some clients do not hold up, at all. Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel. One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday. if it was Monday, then he had a good retaliation claim. If it was Tuesday, then he had no retaliation claim. Why would he say Tuesday? I may never know, other than he was simply easily lead on cross-examination.
Employers will often ask the same question two or three times. The same question. But, it is an important question. "State all facts on which you believe you were the victim of discrimination." If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.
Another "catch-22" is that nice is important, Any witness risks offending the jury if the witness is too rude or pushy. Niceness does count. But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story. The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes.
Cross examination is all about one word answers. Opposing counsel wants the plaintiff employee to answer yes or no. But, some questions require explanation. "Isn't it true you never called in when you were sick?' Yes, but..... "Yes, but the employer did not require employees to call in if they were ill more than one day. We did not have to call in everyday if we were out more than one day." The explanation fills in a huge gap about why the employee did not call in. At some point, the employee plaintiff must provide this key fact. The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.
So, yes, the plaintiff employee deposition is very important.
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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.....
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.
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.
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.
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.
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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Defamation refers to uttering an untruthful statement about someone. "Libel" refers to written defamation. "Slander" refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to charge an employer with defamation, the defamation must be made in the course and scope of his/her employment. That is, the defamatory statement must be related to the speaker's job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply.
An employee can overcome the qualified privilege only be showing the publisher of the statement acted with actual malice. Showing malice is a high burden. It can be very difficult to show malice, that a person knowingly and deliberately caused harm. Malice is more than mistake or misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.
For example, an employer fires a person for alleged stealing. the employee did not steal. But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot.
Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation.
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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?
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.
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.....
It is pretty well accepted among most lawyers that eye witness testimony is often inaccurate. The story I heard in law school was that a professor staged a fake attack during class. He had someone walk into his room and pretend to shoot him. The shooter ran away and the professor jumped up to show his good health. To the students, it looked very real. The professor then asked the class to describe the shooter. The professor got some 30 different descriptions. It is very hard to describe a person or an incident accurately after just a few moments.
Now, we know this even more so, since so many inmates on death row have been freed with DNA evidence. In a recent Scientific American story, they report about a supposed rapist and killer convicted based on five eye witnesses. He too was freed with DNA evidence. 73 of the 239 death sentences overturned with DNA evidence relied on eye witness testimony. One-third of those 73 cases relied on one or more mistaken eye witnesses.
The authors of the article explain that one popular misconception about the brain assumes we see an event and later, we simply re-play that same event. Not so, say the researchers. In reality, we reconstruct the event, much like putting a puzzle together. Later, questioning by a lawyer may alter the memory by causing the witness to confuse actual recollection with information provided by the questioner. Researchers have succeeded in creating false memories in various studies, simply by suggesting realistic, but inaccurate facts. One-third of the subjects in one study reported recalling partially or completely the false information.
So, the article explains, various factors can cause faulty memory:
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...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.
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.
Every Christmas, I look back to my Iraq Christmas in 2005. 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. All they needed to know was that it was a celebration of some sort.
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 priest was faith-filled and understood his small congregation.
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.
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.
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.
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:
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.
Enforcement of civil rights laws fell significantly during the Bush administration, according to a GAO report, as reported in the NY Times. The non-partisan Government Accountability Office reports, for example, that the DOJ Civil Rights Division had filed 11 cases of sex or race harassment per year during the Clinton years, but only 6 per year during the Bush years. Political appointees rejected the recommendations of career CRD lawyers to proceed further with cases for no apparent reason, according to the report. The GAO audit was based on records from 2001-2007.
The reduction in suits filed is all the more remarkable since EEOC filings have been rising each year for the past 20 years or more. And, of course, we now know that the Bush administration often hired DOJ lawyers more for their political correctness than for their competence in civil rights.
The Civil Rights Division is responsible for enforcing the civil rights statutes against state and local governments. Whereas, the EEOC enforces the employment discrimination statutes against private employers. Charges against state and local governments are still filed with the EEOC. When the EEOC investigates a charge against state and local governments and finds evidence of discrimination, the EEOC refers the charge to the CRD for review.
So, it is very remarkable that that when staff lawyers wanted to investigate a report of voter intimidation by a state government, the supervisor told them they could not contact the state government. Say what? That makes no sense. I cannot imagine investigating harassment by a state government without actually talking to the state government. That would be like investigating a murder without actually speaking with any of the murder suspects.
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.
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......
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.
To show same sex harassment, one must show: 1) the alleged harasser made explicit or implicit proposals of sexual activity and that the sexual harasser was homosexual, 2) the harasser was motivated by general hostility toward members of the same sex, or 3) direct, comparative evidence showing different treatment for members of the same sex than for members of the opposite sex. See: Love v. Motive Enterprises, LLC. In Love, the employee alleged several acts of discrimination by a female supervisor: the female supervisor would rub her breasts against Ms. Love many times; the female supervisor locked Ms. Love in the bathroom and said she would not unlock it until Ms. Love was "nice" to her; the supervisor rubbed her groin against Ms. Love's leg; and more. But, the Fifth Circuit found that Ms. Love had not presented evidence that the female supervisor was homosexual.
Actually, Ms. Love did present such evidence. But, she provided recollections of the supervisor's homosexual acts after she had been deposed. She provided an affidavit recalling homosexual acts by the supervisor. But, this was after she had already testified in her deposition that she could not recall homosexual activity by the female supervisor.
To some people, this late, new evidence would seem to still be evidence. But, the to the Fifth Circuit, that is late evidence. In the minds of some judges on the Fifth Circuit, if such evidence comes late, then it is suspect. That is because some Fifth Circuit judges try to ascertain the facts or the truth behind allegations. But, this matter was before the Fifth Circuit on appeal from a grant of summary judgment. So, the judges should not have been weighing the evidence.
Summary (or quick) judgment occurs when the court essentially kicks a case out of court saying they have no case. But, here, Ms. love does have a case. She remembered a key fact late, but she recalled it all the same. She ought ot have her day in court. The fact that she remembered something after her deposition would be a good question for cross-examination. But, it really is not enough reason to grant summary judgment.
That is why Judge Dennis concurred in part and dissented in part. He agreed with some things but disagreed with the part of the main decision which was weighing evidence. When considering summary judgment, judges should not weigh evidence. They should, instead, be giving the the employee the benefit of the doubt regarding all evidence.
I have to say, I really am appalled at the many conclusions of fact the court reached in this decision. They should not be resolving factual issues at all when deciding on summary judgment. The court should give the employee the benefit of the doubt regarding all factual issues and then determine if she has a case.
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.
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.
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......
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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A South Texas hospital will pay $27.5 million to the U.S. Justice department as part of a settlement of claims that the hospital, South Texas Health Systems, bilked money from the US government. The allegations include charges that the hospital entered into a kick-back scheme with various doctors. The plan was that the hospital would provide indirect payments to doctors who referred patients to the hospital chain. This was a qui tam lawsuit. It started with a report by a former South Texas Health Systems employee, Bruce Moilan, in 2005. Mr. Moilan will receive $5.5 million as part of the settlement. See the San Antonio Express News story.
"Qui tam" lawsuits refer to claims based on the False Claims Act. Under the False Claims Act, a person who reports fraud, waste or abuse is paid some monies if the report leads to a recovery of monies owed to the federal government. If someone bilks the federal government, as South Texas Health Systems allegedly did, then private citizens who assist the government in recovery of that money receive a share of the recovery. The False Claims Act was first passed soon after the Civil War. It was passed in response to the massive fraud committed against the federal government in purchasing supplies and equipment for the war effort. Today, medicare and medicaid fraud is a large part of the qui tam lawsuits being filed.
Under the scenario reported at Taxgirl website, Texas would not protect these whistle blowers. In this case, filed in Oklahoma, two accoutants reported to their boss, a charity, that the charity (Feed the Children) owed back taxes for several years. The employer was so happy to learn about the mistake that she fired the two truth tellers.
I cannot speak to Oklahoma law, but in Texas, such conduct is not protected by law. We, as private sector employees, are not protected for honestly blowing the whistle, whether we blow it to our boss or to some law enforcement agency.
In Texas, if your employer tells you or instructs you to commit an illegal act and you refuse, then you have some protection. But, to simply report either up the chain of command or to some law enforcement agency that the employer is violating the law, then you have no protection.
There is a new federal statute, the Sarbanes-Oxley Act, that offers protection for private sector employees who report fraud committed by a publicly traded company (inspired by the Enron collapse). But, even this statute would not apply to employees of the typical charity.
Clients and other lay persons do not always understand that lawyers for opposing sides can get along and even join together for lunch. Mike Maslanka points out what can happen when lawyers cannot extend the simple courtesies in his latest post. As a lawyer for one side or the other, it is easy to demonize opposing counsel and opposing clients. But, we generally do better work and represent our clients more effectively when we can remain objective.
As a wise San Antonio judge once advised, invite opposing counsel to lunch early in a lawsuit. The good will from that lunch will last several months or more. In the case referred to in Mr. Maslanka's post, the presiding judge ordered both lawyers to attend Continuing Legal Education courses on ethics and to join together for a meal. It is hard to demonize someone with whom you have broken bread, but, yes, you can still fight them like nobody's business.......
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
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.
Federal employees enjoy substantial protections other employees do not. One such protection is the whislteblower statute, also known as reporting fraud, waste or abuse. See Workplace Fairness for a good layperson description. This statute protects a federal employee who reports fraud, waste or abuse or a simple violation of a statute or regulation. There are a number of ways to report a violation of this statute. A federal employee can submit a complaint to the Merit Systems Protection Board or to the Office of Special Counsel.
Of course, one should never depend on a lawsuit or a complaint to put food on the table. It is always better to avoid problems, if possible. But, sometimes, problems find you, especially if you believe in the doing the right thing......
No sooner do I post about Texas anti-retaliation statutes and then I hear from someone who sort of has anti-retaliation protection but maybe not. Let's be clear. Texas is an at-will state. I do not necessarily wish it to be so, but it is so. There are few exceptions here to at-will. My previous post described three solid exceptions, perhaps the only three solid exceptions (in addition to the more well-known anti-discrimination statutes). An employee emailed me about Texas Health & Safety Code Sec. 142.0093. This statute prohibits retaliation based on reporting abuse of older persons or being involved in such a report. This provision applies to home and community based support, not to nursing homes. If you look around this one section, you will see that it carries no right to file suit, no details on how one might file suit,. etc. So, it appears to be a toothless tiger. It prohibits certain conduct, but apparently provides no remedy in case the employer ignores Sec. 142.0093 and retaliates against someone for involvement with a report of abuse.
That review is not the final story. That is why lawyers exist, to look very closely and see if some right to file a lawsuit or other sort of penalty was intended by the Legislature. In fact, there is a comparable statute for abuse which occurs in nursing homes. See Health & Safety Code Sec. 242.133. Sec. 242.133 has a lot of detail about how to file suit if an employee suffers reprisal because they reported abuse. It is clear there is a right to file suit under 242.133. Sec. 242.133 applies to nursing homes.
And, what if the abuse happens in someone's home or some non-nursing home setting? Then, such retaliation would probably fall under Sec. 142.0093 and not under Sec. 242.133. And, as I mentioned, there is no clear right to file a lawsuit under 142.0093. Perhaps, there is one, but it is not apparent. That means reporting abuse in a nursing home has some protection. But, reporting abuse in someone's home or community type home may not be protected.
This seems unfair. But, in an at-will state, this is what happens. This is especially appalling, since both workers, nursing home and otherwise, are required to report abuse of older persons. So, someone may be required to report abuse and still suffer reprisal. It is not right that that can happen. But, it does, all too often.
But, look at the jury protection statute I referred to. When I first looked at that for a possible client in about 1991, it had no teeth, at all. Back then, a worker who was fired due to jury service came to see me and asked what he could do about it. The only remedy then was some small civil penalty. Now, you can sue for one year's or more pay. That is still not much. But, it is a big improvement over how it stood back around 1991.
Personal emails at work are sometimes protected from intrusion and sometimes not. The email system belongs top 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.
A school district spends $552,000 to defend a lawsuit it eventually settles for $150,000. See report at California Labor & Employment Law blog. Does that make sense? No, of course not. Yet, many defendants do just that. They spend far more than the case is worth. Most employment cases settle for anywhere from $10,000 to 25,000. But, I know the defendant is spending about that much or more until they finally settle the case. if the case goes to trial, they will spend closer to $300,000 defending a discrimination lawsuit.
To be fair, many employers are offended by a discrimination lawsuit. They think they know the alleged harasser and cannot believe he/she would do such a thing. They will go to the mat to defend the lawsuit. At some point, most employers will become more rational. But, for a few others, they will go down kicking and screaming.....
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.
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.....
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.
I discuss this with clients so often. How much is my case worth? Most clients believe their case is worth millions. And, it is. To you. But, what is it worth to a jury? I have explained that studies of discrimination lawsuits have found that most often, juries do not award compensatory or emotional suffering damages when an employee wins. Yes, that's right. Even when you win, most juries award nothing for emotional suffering.
And, when a jury does award compensatory damages, they tend to award more or less the equivalent of lost pay. In a recent case before a federal jury in Austin, a UTHSC professor was awarded $900,000. That amount will be reduced to $300,000, since Title VII limits compensatory damages to $300,000.
But, even as a $900,000 award, his lost pay was very high. His pay was cut 25% in 2003. So, he has lost some $175,000 in pure wage reduction. Add whatever he would have lost in retirement benefits, because now his pay is at a reduced level. Add whatever he could prove in lost raises or bonuses. Add whatever he could show was lost income because UTHSC apparently caused his discoveries to lose value. Then, add whatever value the jury awarded because he was diagnosed with depression, heart problems and diabetes. In fact, his first trial was apparently cancelled when he had a stroke at the trial.
So, yes, those million dollar judgments are out there. But, to get those high judgments, you have to suffer a heck of a lot and you have to already have a pretty high income anyway.
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......
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......
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.
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.
What you say online can come back and get you in court. See a list of such cases from IMS.
Many employers require drug tests as a requirement for employment. But, few employers conduct the test themselves. Most employers contract out the actual drawing of the specimen and testing. Some laboratory will perform the test. Some employers will fire an employee for testing positive for a drug test. What happens if the lab makes a mistake? Well, if the lab makes a mistake, the lab makes the mistake, not the employer. So, any legal action would lie against the lab, not the employer.
But, under Texas contract law, an employee may not have an action against the lab either. Since, the employee had no agreement with the lab. Shoot, the employee would probably not even ever see the lab. So, yes, in some situations involving a false positive, the employee is flat out of luck with no right to file suit against anyone. Not the lab and not the employer.
I get calls like this about once a year. Unfortunately, false positives happen all too often.
Same thing happens with criminal background checks. If the "checker" falsely reports back some criminal history, the employee's action will be against the criminal background checking firm, not the employer. The remedies (ie, what you can sue for) will be limited. See Zepeda v. Industrial Site Services, Inc., 2008 WL 4822205 (Tex App. Corpus Christi unreported decision).
Welcome to "at will" employment, the rule in most states.
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.
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.
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.
Written counseling is important. I have advised and represented small business owners. The best protection from a false claim is written counseling made at the time of the alleged infraction. Russell Cawyer describes in good detail what written counseling should include. Even the most basic workplace will have scratch paper somewhere. You as a manager need to include the basics: what the employee did wrong, when s/he did it, and what you as the manager expect in the future. This written documentation will help tremendously when/if the employee later seeks unemployment benefits or files suit for alleged discrimination.
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.
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.
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.
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.
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.....
There are several ways to prove discrimination. A very common method is to focus on disparate treatment. Bob commits some offense at work. He is treated differently than Pedro regarding the same offense. If nothing can explain why Bob gets treated differently, then one might conclude that he was treated differently due to his ethnic origin. This is a difficult way to show discrimination. Mike Maslanka discusses the challenges when he discusses a recent case, Lee v. Kansas City Southern Railway Co. I hear this all the time. The "other" employees are treated better because they are the boss' favorites. They come in late and nothing happens to them.
The challenge is to show that Bob and Pedro are good comparators. Do they have the same boss? Are they in the same department? If Bob was disciplined for the same offense, but Pedro was not, is the offense truly the same? Do Pedro and Bob have the same responsibilities, training, experience? All these are factors. What the Lee decision helps with is it shows that if Bob ad Pedro have the same second level supervisor, then yes, they might be good comparative employees. That is, if the boss' boss approves the discipline, then yes, they might be good comparators. So, yes, if Bob gets disciplined for an offense for which Pedro was not disciplined, then that different treatment might constitute evidence of discrimination.
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.
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.
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.
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.
As often happens in trials, there is substantial dispute over what happened when lawyers for Michael Richard seeking more time. The call went to Ed Marty, general counsel for the CCA. He has given different statements about happened. In one account, he says he told the duty judge, Cheryl Johnson, that the lawyers called. In other accounts, he did not tell Judge Johnson. He appears to acknowledge that he has memory problems. He has retired and moved to Alabama.
Judge Keller is consistent that Marty told her they were calling for more time and she simply responded that some entity (the clerk or the court) closes at 5:00 pm. Judge Keller's lawyer emphasizes that the lawyers could have submitted a filing to any other judge. But, the lawyers appear to not have been aware of that. The general counsel was apparently careful not to tell the lawyers they could file with another judge - presumably to avoid charges of favoring one side over the other. But, like Richard's lawyers, I believe I would expect a court to tell me how to file a late, critical pleading. I would not expect to have to ask such a routine sort of question.
In any event, a man's life hung in the balance. Judge Keller's defense appears to essentially be that she simply provided information, an administrative act, not judicial. That claim does contradict her defense in the civil suit that her act was judicial (thus relying on judicial immunity). As is true in many trials, relying on hair-splitting is not a very effective defense. I suspect Judge Keller will get some sort of reprimand.
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.
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.
I have talked about this before. Reasonable settlement offers lead to reasonable, or halfway reasonable responses. When you are in the midst of a lawsuit, both sides have their "dander up." It is hard to be reasonable. But, it is just when it is hardest that it is most critical to appear reasonable. Pursuing an employment lawsuit is very personal, but one also has to approach it like a business. Because, if you lose, the perpetrator is doubly rewarded.
This becomes critical when you want the other side to make a settlement offer. You want them to make an offer, because you want a choice. You want to choose between settling a case or going to trial. Trials are always risky, no matter how good your case is. So, before you go into trial, you want a choice. Otherwise, you risk the worst scenario: the perpetrator of your discrimination is rewarded once when they discriminate and again when you go to trial and lose.....
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.....
Most employees who come see me have thought twice, three times, even 20 times before they decide to file a complaint, or worse, file suit against the employer. In his blog, Michael Maslanka cautions employers to think twice before going into "fight" mode when an employee files an EEOC charge or even a lawsuit. That is good advice. How many employees have told me that if the employer had only said they were sorry, or if only the employer did not do such-and-such, then they would not have called me?
I have some friends who run a chain of sandwich shops. A small chain. They did not attend college. But, they do much better than many so-called well-educated employers at avoiding lawsuits. If you make a mistake, they tell you. If they need to fire you, they tell you why. They do not escort you out of their shop. They treat even folks they fire with some measure of respect. Avoiding lawsuits really is not all that difficult. Minimizing the effects of a lawsuit is not all that difficult. It can be done....
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."
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.
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.
When President Clinton was still President and he was getting into some trouble about having lied in a deposition regarding alleged sex harassment, a former client called. He was upset. He said Pres. Clinton is getting into so much trouble for lying in his deposition, but so-and-so manager lied in his deposition and did not get into any trouble. Former client's case had been race discrimination, but I understood his point. If the President supervisor gets into trouble, why didn't former client's supervisor get into trouble for lying in former client's case?
I had to explain to that managers and supervisors lie or stretch the truth in most depositions. They never admit to discriminatory acts or statements. And, prosecutors are too busy with more important crimes than to pursue perjury in civil cases (ie, non-criminal cases).
You see what happens when the Houston district attorney's office "coaches" a witness. Witness "coaching" often walks a fine line between outright lying and simple education regarding what a witness can do or not do. These attorneys got caught. This all stems from a sex harassment case against the former Harris County District Attorney, Ibarra v. Harris County.
Most defense attorneys do not even come close to getting caught. Most defense attorneys are very honorable, responsible officers of the court. But, a few are not (not unlike a few plaintiff attorneys). This is a fact of litigation. There is no "ah-ha" moment when a racist manager admits to his/her mis-deeds. Not in real life.....
You work for an employer. The employer has trade secrets and leads it wants to protect. It asks you to sign a non-compete agreement when you hire on. Most non-compete agreements provide that after you leave your job, you will not compete with your employer for a specified amount of time. Is that non-compete agreement binding? It would be binding if the employer gave you something in *consideration* for signing that non-compete. Are stock options sufficient consideration? A recent Dallas state court opinion says no. Russell Cawyer, who generally represents employers, says money or other financial consideration will not be enough consideration to support your promise not to compete against your employer. The employer should offer some binding promise, such as providing trade secrets.
Once the employer makes good on that promise, then the non-compete *may* become binding. See Chris McKinney's take on the current law regarding non-compete agreements.
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.....
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.......
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.
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.
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.
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.
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?
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.....
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.
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.
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.
Well, as often happens, the new decision is out but it will take months or longer to understand what it means. The US Supreme Court issued its decision in Ricci v. DeStefano, the New Haven, Connecticut firefighters case. Workplace profs have observed:
"To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It's also an implicit rejection of the basis for the Court's early decisions on Title VII, that discrimination in employment was common,. . . "
That causes me concern. The entire premise of Title VII, as passed in 1964, was that discrimination was a real part of the workplace. If we have to start re-evaluating basic premises like that, then employment law will essentially start all over.
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.
The better clients come to see me with documents in hand, sometimes boxes and boxes of documents. This is the client who wants to be prepared, who seeks to have some control over the outcome of a potential lawsuit. Some, some very few, will come see me with documents they obtained from their employer. Is it "legal" to have those documents? It depends. See one case where the court found the employee unlawfully took documents home. But, the court indicated a different set of circumstances in which the employee would have been protected for having taken those documents.
But, see Michael Maslanka's eventual reaction to a situation in which an employee takes documents home and keeps them: better to simply sue and get them the traditional way. That is, Mr. Maslanka would say it is better to file suit and then seek the documents in discovery. He generally represents employers. The safest course is to always do what your employer tells you to do. if the employer says do not take documents home, then do not. But, yes, if the employer has a policy of letting employees take documents home, then it is probably safe to do so. But, you better be double-darn sure. Nothing can ruin a good case than to violate some law or employer policy. If you take something that does not belong to you, then the lawsuit becomes about you, not about the employer.
Hard to believe, but a judge '"friended" a lawyer on Facebook. The lawyer was appearing before the judge in a case. The judge in North Carolina would respond to comments from the lawyer about the case. See story as reported by Delaware Employment Law Blog. Yea, I would call that "ex parte" communication with a party to a lawsuit. Which, BTW, is pretty much unethical.....
At some point, the lawyer even responded to one of the judge's responses as "wise judge." Sheesh.....
You're a waiter. Do you split your tips with the bussers? How about with shift supervisors? In a recent decision, the California appeals court found that the public expects the tips collected in a tip jar at Starbucks would be split with the shift supervisors. I don't know what I expect when I leave a tip. But, you see the sorts of things a judge will look at when they make a decision. They make their best guess regarding what the "public" thinks, sometimes. A judge's life experiences make a big difference in a close decision like this one. The court indicated, according to this report, it would have made a different ruling if the tip had been left specifically for the barista. So, apparently, the court decided that tips left in a tip jar were intended for employees in general, not specifically for the barista at the counter.
BTW, this decision reversed a $100 million decision in favor of the baristas. It will surely be appealed.
Aaron Ramirez in Dallas discusses the issues in finding a plaintiff employment lawyer. Aaron is a plaintiff employment lawyer in Dallas. He adds to what I said previously. He presents some very helpful information. This info is just as true for San Antonio and South Texas as it is for Dallas and North Texas.
I cannot emphasize enough that an employee needing a lawyer needs to start looking as early as possible. Too many good cases have been lost because the individual waited until they received the right-to-sue letter and then waited too long *after* receiving the RTS letter. The best time to start looking is right after the adverse personnel action, or even sooner if possible.
Everything Aaron says is right on.
Its a repulsive case, one in which a large company was able to effectively buy "justice." Highlighted on 60 Minutes and elsewhere. Now, the US Supreme Court has spoken and found in favor of the good guys. Caperton v. AT Massey Coal Co. Inc. But, as Mike Maslanka points out, it could lead to other issues, such as more requests for judges to recuse themselves from a case. But, as Mike adds, when the rights of one are trampled, the rights of all are trampled. It was a 5-4 decision, so it was close. But, it needed to be made.
For those less familiar with the judging business, judges run for election. They need campaign dollars to do so. The judges in the West Virginia Supreme Court run for election, as in most states. One judge received $2.5 million from one coal company. When a case concerning that coal company came to the bench, the West Virginia judge, his pockets stuffed with $2.5 million, refused to recuse himself from the case. Guess who he ruled in favor of. Justice was not blind that day.....
Jerks at work cause all sorts of problems. It is worse when the jerk is your boss. But, ultimately, the jerks will cause enough issues that most employers would agree they need to go. The good news is that according to at least one source, the nice boss gets his/her way more often that the jerk boss.
In one study, many women reported they would prefer to work for a male supervisor than a female supervisor.
The white SUV hurtled toward the Guardsmen. The young soldiers reacted. "Suicide bomber!" yelled one. Two others took up defensive positions as if they head weapons. But, they had no weapons. They were simply cleaning up the gravel parking lot at their National Guard Armory. They saw two young boys doing doughnuts in the parking lot with their SUV and told them to stop. The boys reacted by racing the engine and hurrying toward the Guardsmen.
The boys did not realize they picked the one group of vets from Iraq and Afghanistan. SGM Benavides was older. He was angry, too, but he knew he had to keep order. Like the younger vets, he wanted to beat the snot out of the boys. But, he wanted to maintain order more.
Other Guardsmen, who had not deployed to a combat zone, stared in amazement.
One boy emerged from the SUV with a swagger. "You think you can scare me?" responded one young vet. "I came from a place where they tried to kill me everyday!"
SGM B chewed the two boys out and let them go. He talked to his young vets about whether they felt any PTSD.
Clients often have the strangest notions. They actually think that if the law says something, then the employer must do what the law says. I have to break the news to them: employers can ignore the law. Yes. Employers can ignore the law if they do not mind the consequences. Employers do it all the time. Seems to me employees sometimes forget they work for an employer. If the boss says they will not accommodate you, then that refusal is the "law" until you can file a lawsuit and obtain a ruling from a judge.
So, yes, if you file a lawsuit against your employer and you still work for the employer, then, guess what, you still have to ask the boss for time off to attend a deposition. You still have to ask the boss for time off to attend a trial at which the boss may also be present. The employee's lawyer cannot give you time off. You do not work for your lawyer (actually, its more the other way around).
Continuing to work for an employer you have sued can make the working environment very tense. But, remember, if the employer is halfway intelligent, they are even more nervous. Because the intelligent employer knows that if s/he says anything halfway inappropriate, then that could become the subject of another EEOC charge or worse. So, remember you may be nervous. But, your boss is even more nervous. Cut your supervisor a little slack and you will benefit in the long run.....
Looking for a lawyer is never easy. In the employment law business, many clients call me or other plaintiff employment lawyers at the last minute or close to the last minute. Typically, potential plaintiffs do not start calling lawyers until they receive the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC). Most charging parties naively believe the EEOC will conduct a true investigation. So, naturally, they do not start looking for lawyers until it is clear the EEOC will not resolve their issues.
Unfortunately, in San Antonio, as in most jurisdictions, there are far more potential plaintiffs than there are lawyers. It is hard to find a plaintiff employment lawyer. Some potential plaintiffs get caught up in the referral from one personal injury lawyer to another, all of whom decline the case. So, by the time the 90 deadline (statute of limitations) is about to expire, they still have not found a lawyer willing to accept their case. By far, most potential plaintiffs need a lawyer willing to accept the case on contingency. Not surprisingly, most potential plaintiffs have little money - they have lost their job quickly and unexpectedly.
It is a system almost designed to frustrate lawsuits. Indeed, that was the intent when the Civil Rights Act of 1964 was passed. Many members of Congress hoped then that the EEOC would resolve most disputes. In actuality, the EEOC resolves very little.
I tell all potential clients, employment law or otherwise, they should speak to 2-3 lawyers before choosing one. In the employment law area, I warn them they also need to see lawyers asap. If I cannot accept their case, I provide three names of lawyers who might be able to help them. Because the 90 days passes so quickly, I tell them they need to make appointments with all three right away. otherwise, many potential clients make the mistake of seeing one lawyer before even making an appointment with the other two. Making one appointment at a time takes too long.
It is a very significant challenge finding lawyers for an employment case, when you are an employee. Do *not* waste your 90 days. Heck, many clients do not even start looking until 30 days or so have passed. They just do not realize how hard it can be to find a good plaintiff employment lawyer.
"Do unto others as you would have others do unto you" The famous words known as the golden rule. Its a Christian precept designed to encourage us to treat others as we would like to be treated. Unfortunately, in the work place, we must sometimes treat others as we must in order to survive, or so we think. "Niceness" does count in lawsuits. Extending basic courtesy, or making a generous gesture make a difference in a lawsuit.
You, as an employee, may be locked in a huge fight, or simply engaged in an ongoing tit-for-tat with your employer. The struggle may last months or years. But, everything you do will become magnified if your dispute becomes a lawsuit. A judge or jury will look at what you did and draw critical conclusions about you as a person. The judge understands the law, but s/he sees so many lawsuits that personal differences alone may make you stand apart from the horde of losing employees. A jury, on the other hand, may understand little of the law in a discrimination case. But, they will well understand an employee "smarting off" to a manager or refusing to perform some task at work.
The simple things have a way of crystalizing a case for a jury. It is in your interest to do the right thing, Because, if you do not, it can cost you an otherwise winable case.
That is partly why a leading defense lawyer warns employers to follow the golden rule.
The more difficult the issues become, the more nasty your dispute may become, the more important it is to follow the golden rule. Do the right thing. You will live better and you will have a better chance of winning.
A post the day after Memorial Day about an excellent soldier lost in the killing districts of Baghdad:
http://www.arlingtoncemetery.net/cnsaenz.htm
The ripple effects of losing an excellent soldier like 1SGT Saenz spread far and wide. One soldier with a heart of gold enlisted in the active army in response. Other soldiers simply look back at 1SGT Saenz as an example. They try to live up to his example everyday. A few of us simply write about him and wish there were no losses in war.
If you haven't already, thank a veteran for his/her service.
I recently talked about clients who "forget" key evidence because they are nervous or simply frightened about their situation. On the other hand, there are, on very rare occasions, those folks at the opposite extreme. The potential clients who know or should know they do not have a strong case. They just want to manipulate the system. In some 15 years of actively doing employment cases, I have had maybe 2-3 clients who fit this category. But, even they, I think, deluded themselves into thinking they had a case or might have a case. One potential client, a spurned lover in an affair gone bad, simply wanted me to tell her how to get revenge or her former boss, her former lover.
I am not really in the revenge business. For one thing, how can I be sure that the available "revenge" will be enough revenge? It is never wise to accept clients you cannot hope to satisfy. But, it is flatly unethical for a lawyer to file a claim s/he knows is not well grounded. If you do that too often, you, as a lawyer, will gain a reputation for weak claims. So, ultimately, it is simply bad business to file weak claims.
So, yes, it is very rare, but once in a great while people do come see me about claims they know or should know are weak. But, you know, out of some thousands of potential clients, 2-3 is not too bad. The overwhelming majority of clients who come see me are very sincere, even if they may be wrong or simply lack objective evidence. Most just want to know: "Do I have a valid claim?"
So many clients or potential clients have come to see me or discussed their problems with me on the phone. Invariably, the pattern goes like this: They are so scared about their job and nervous about seeing me. Many are so frightened that I will tell them they do not have a case or that the law does not protect them. So, they often focus on the wrong things. They cannot tell me what I most need to know. Often, they recall specific incidents, what I refer to as evidence, only when they drive home. They then call me later and tell me more. But, their recollection may come after I have already told them they have no case.
I sympathize. I know what it is like to be afraid for your job future and believe, rightly or wrongly, that you lack control. It is frightening.
Many times, I have to tell a potential client that they do not have a claim, or their potential claim is very weak. Bad news does occur. But, for the rest of the potential clients out there, just remember that what what a lawyer most needs to hear is why you believe you have a claim. Why you believe you are upset. As with a doctor, history is everything. Most, the overwhelming majority of abused, harassed workers are rational and have reached their conclusions based on pretty decent evidence. You need to explain why you believe certain actions are discriminatory.
Many times, an employee tells me that they were treated unfairly in being disciplined for an objective, seemingly valid offense. It is only when I press them that they explain well, Joe Schmo has committed the same offense and never been written up. And, by the way, no one else has ever been written up for this offense. Now, that is evidence that we can use.
Again, it seems like I am one of the few following news regarding the Iraq war, but have to mention my support for the combat stress guys in Iraq. The combat stress folks are in the news now, since a soldier attacked one of the combat stress units in Iraq. A 3 star general mentions that he suffered from combat stress and sought help. Some observers find his openness remarkable. I do not. Everyone suffers some combat stress, either while you are there or soon after returning home.
As the report mentions, infantry does attract the Type A personalities. But, we feel stress like anyone else. I had a soldier working for me, who received little apparent support form his family while we were in Iraq. His girlfriend then treated him badly. This young man, who I love like a son, was the best soldier. Just excellent. Until his girlfriend issues, we could always rely on him. In combat, there is no greater praise.
He suffered some bad stress near the end. We sent him to the combat stress unit for a weekend and he came back a new man. They did a tremendous amount of good for this very remarkable soldier. He too was macho and did not believe at first that he needed help.
We all suffer stress. Its the brave ones who face it and deal with it straight on. My young soldier did.
Nothing to do with employment issues, but maybe, this has everything to do with employment issues........
One thing many of my clients overlook is that employers really are human. Yes, they did some terrible things to you and to others. They have been insensitive or worse, sometimes much worse. But, often, the employer making decisions in a lawsuit are far removed from the terrible crimes. Often, the senior manager simply never saw that side of "Joe Abuser" and cannot believe it. Sometimes, Senior Manager does not know Joe Abuser directly. But, Senior knows and trusts Middle Manager who vouches for Joe Abuser.
You see some of this in Michael Maslanka's entry about his mom. Mike represents employers mostly. In this entry, he tries to teach his clients to try to see the point of view of the possibly abused employee. He refers to issuing an After Action Report to his clients and educating them on how to void paying out another zillion dollar settlement.
Keep that in mind the next time you engage is filing a grievance or lawsuit. The failure of management to appreciate how strong your claim is may not be due to even more abuse. It may simply be due to misplaced trust.
Happy Mother's Day to you moms.....
Seems like I am one of the few following the trials of soldiers accused of atrocities in Iraq. I follow them because I am a retired Reserve officer and because I spent time in Iraq. The latest trial concerns a 101st soldier accused of a revenge killing in Southern Iraq. This soldier is facing trial in a civilian court where it will be nearly impossible, I believe, to educate the jury on just how difficult things are and have been in Iraq. He is presumed innocent, of course. But, whatever he did or did not do, life in a war zone is hugely difficult.
When I was in Iraq, I tended to minimize the difficulties when talking to folks back home. You do not want to visit your problems on people back home. Too, as a soldier, you are never sure how much the folks back home will understand. So, the job of educating the jury will be very difficult for this civilian criminal defense lawyer.
That is not a new problem for lawyers. This trial is just more so. In the average discrimination case, for example, the challenge is educating the jury about the daily obstacles a woman faces, or a minority faces. That is why, contrary to popular belief, when we pick a jury, we seek to strike jurors biased against our client. But, we also seek to keep jurors who might have some understanding of our client's predicament. There is a saying in Iraq that applies to juries. "Things are never easy in Iraq."
I do not know what this soldier did or did not do. But, I do know that not many on the jury will understand......
So, you're reading everything you can find on the web on your problem and you still *cannot* find what you are looking for. You might try the top 100 employment law blogs. I do not know what criteria they used, but I can speak for several of these blogs as being well written and very informative. And, no my blog is not listed, so my opinion is a *true* unbiased opinion. If you cannot find what you are looking for in any of these 100 blogs, then it just probably ain't out there....
Persons with disabilities face huge obstacles. Persons confined to a wheelchair face sometimes insurmountable obstacles. So, it is nice on occasion to see some folks doing the right thing. The famous musical "Texas" staged every summer in the Palo Duro Canyon settled a lawsuit by making the musical accessible to persons with disabilities, including those confined to wheelchairs. The good folks at Texas Civil Rights Project brought the lawsuit on behalf of a man in a wheelchair, James Redwine. Mr. Redwine purchased a higher priced ticket to see the show, last summer. But, his "seat" turned out to be an empty space in the aisle and blocked other patrons and an exit.
A few years ago, I represented a girl who simply wanted to see movies at her local theater in a small town near San Antonio. When a co-worker and I visited the theater, I was happy to meet the owner who actually was very knowledgeable about the accessibility requirements and was already doing basically everything he could to make his new theater accessible. Sometimes, people do the right thing, because they are forced to by a lawsuit. Sometimes, they do the right thing, because it is the right thing to do. Either way, it is the right thing to do and it does benefit those most vulnerable. Either way, i think such people should be applauded.
Facebook, Twitter, Myspace, they are all the rage. These websites present amazing opportunities to network and stay in touch. A friend of mine has family all across the US. They stay in touch with Facebook. But, for all the possibilities, these websites also present risk. Chris McKinney explains the risks in his true story of someone who lost a job because of Twitter fun. But, Michael Maslanka explains how social networking websites are the future and discusses how one company actually allows an hour a week for "facebook" time.
I kid my son about spending too much time on facebook. I tell him he does more "work" on Facebook than homework. Not true, of course, but you see my point. Shoot, I have my own Facebook page. It really is a great way to stay in touch or re-connect with old friends. But, like all concerned employment lawyers, I have to warn you all that there are indeed risks.....
I have represented employees in employment matters for over 15 years. For a great many persons, it was the worst experience of their lives. Even after losing their jobs, some lost their homes, their families, and much of their former life. It was horrendous. I have also helped small business owners. But, for many employees, a job dispute is such a single, overarching issue.
The only other thing I have done in my life with greater pressure and a greater sense of reward was going to war. I deployed to Iraq in 2005 as a Reserve officer. Serving in a combat zone where *every* decision has some potential impact on people living or dying was incredibly rewarding but also incredible pressure. Such an experience puts the pressure of a lawsuit in different perspective. If the terrorists could not kill me, how worried do I need to be about opposing counsel or a judge in a lawsuit??
And, of course, when you lose a buddy in war, you do appreciate that things that used to seem so awful may not be that bad. If you are still alive, after all, how bad can things really be? I know many employees feel they are going through the worst time of their life. But, remember, you are still alive, after all. So, yes, as bad as things really are, it could be worse......
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