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

Minnesota Labor & Employment Law Blog discusses how an employer can mess up an employment case.  In Hamm v. Minnesota, the state eventually agreed to pay Hamm $250,000 to settle her claims. The law firm at Minnseota Labor & Employment Law discusses the things the employer did wrong: accusing Hamm of transgressions that by their own policy were not Hamm's responsibility; the state disciplined Hamm alone out of 150 other attendees at a particular conference; and the list goes on.

The author's point is that better review would have prevented handing over a strong case to the plaintiff employee.  The author generally represents the employer.  Someone should have reviewed these claims to make sure they made sense.  The employer's case always gets better when they hire a lawyer.  As Minnesota Labor & Employment Law mentions, fresh eyes do make a difference.  

But, it is alsp true that the worst offenders often have too much hubris to seek out a fresh pair of eyes. The worst offenders get into trouble, in part because they think they do not need help. 

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

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

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

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 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.  

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

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

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

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

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 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.  

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