Sometime back, I met with a young man about his work situation. He was told by his boss to do some things that the worker believed would violate internal policies. Every work place has rules unique to that work place. We describe those rules as internal rules or policies. The worker was essentially telling me he was enforcing the rules, even if his boss was not.

Well, I had to tell him that those rules are not binding on the employer. The employer can change them. Even in a large national corporation, the boss is still the “employer.” The boss can ignore those rules. What if violating those rules places a worker at risk of physical harm? For example, if you work in a warehouse and the rule is never climb a ladder without a co-worker holding the bottom of the ladder. What if the supervisor one day says get a box down from the top shelf now, quickly, a customer is waiting? In effect, the boss is saying do not stop to find a co-worker to hold the ladder. Do you do what the boss tells you?

OSHA

If the safety of a worker is involved, then that violation might involve OSHA (Occupational Safety & Health Administration) rules. But, otherwise, in an at-will state like Texas, the worker cannot say no. The only time a worker can say no in Texas is if s/he is asked to break a criminal law.

Even if violating the company’s internal rules also involves a possible OSHA violation, the worker still must respect his employer. If a worker refuses to follow an order from her/his boss, the worker will be accused of insubordination. So, in the same example, if the order from the boss did violate an OSHA rule, the worker cannot then refuse to climb the ladder without a co-worker holding the ladder. Since, if the worker refuses to climb the ladder, then he has been insubordinate. An employer can fire a worker for insubordination.

It may not be fair that the worker has so little control over acts that be unsafe. But, as I tell many folks, if you want fairness, if you want some control over your work, then form a labor union. Otherwise, in an at-will state, you have to do what the boss says.

In the recent US Supreme Court decision of Loper Bright Enterprises v. Raimondo, No. 22-451 (2024), the higher court overrules the decades long precedent in Chevron USA Inc. v. Natural Resources Defense Counsel, 467 U.S. 837 (1984). The Chevron decision had held that courts should allow deference to interpretations of statutes by expert agencies. To quote one precedent, prior to June 28, 2024, courts were required to “afford considerable weight and deference to an agency’s interpretation of a statute it administers if Congress has not spoken directly to the precise question at issue.” Fitzgerald v. Secretary US Dept. of Veteran Affairs, 121 F.3d 203, 207 (5th Cir. 1997).

Compensatory Damages

In Fitzgerald, the Fifth Circuit addressed the question whether compensatory damages were available in administrative proceedings under Title VII of the Civil Rights Act. Mr. Fitzgerald was employed by the Veterans Affairs department. He filed a complaint of discrimination. The VA found in his favor – something agencies rarely do – and offered him “full relief.” Mr. Fitzgerald declined the offer and filed suit. The district court dismissed his suit, saying he had been offered full relief.

(It is true that if an employer offers full relief, then calculation of past pay should stop from that point forward. The lower court found that the offer of full relief meant Mr. Fitzgerald had not exhausted his full administrative remedies. That strikes me as a stretch, but that was the court’s ruling).

Full Relief

So, the first issue on appeal was whether Fitzgerald had in fact been offered “full” relief at the administrative stage. The plaintiff argued that he had not been offered full relief, because compensatory damages were not available at the administrative stage. The Civil Rights Act of 1991 had just been passed a few years before. In 1997, it was not yet clear if the new statute also applied to administrative proceedings under Title VII. The Fitzgerald court held that it did. The Civil Rights Act of 1991 did apply to administrative proceedings. That meant the plaintiff Fitzgerald had in fact been offered “full relief” available to settle his claim. That “full relief” included compensatory damages.

In reaching this conclusion, the Fifth Circuit panel relied on its own interpretation of the 1991 amendment to Title VII. But, it also relied on the regulations issued by the Equal Employment Opportunity Commission. The Fifth Circuit implicitly relied on the expertise of the EEOC. The EEOC is the one federal agency that has as its sole mission enforcing Title VII.

Deference to Agency

Loper Bright asserts that Chevron required courts to apply “binding” deference to agency interpretations. Loper Bright, at 21. But, the word “binding” does not appear in Chevron. In fact the portion of Chevron cited by Loper Bright actually states the opposite: that agencies may change interpretations of a given law over time. The best interpretation, said the Chevron court, might be the one that would evolve over time. Chevron, at 863-864. The Loper Bright court claims that prior to June 28, 2024, a court must disregard a given agency interpretation if the statute was unambiguous. If so, that is not how the Fitzgerald panel applied Chevron. (In my own experience, appellate courts are rather loose with Chevron. They apply it, sometimes. Sometimes, they don’t).

Solution in Search of a Problem

The Loper Bight court then concludes that the fundamental flaw with Chevron was its belief that agencies possess some “special competence” in resolving statutory ambiguities. But, it is courts that have that special competence, said Justice Roberts. Loper Bright, at 23. That is just a silly assertion. Agencies may indeed possess imperfect competence regarding statutory interpretation. But, they possess remarkable expertise within the subject matter of their agency. The EEOC understands Title VII much more deeply than any court. In any event, as the Fitzgerald opinion suggests, there was simply no problem here. The Loper Bright court is a decision in search of a problem. The Fitzgerald court, like most courts who have cited Chevron, did not rely solely on the agency interpretation. The Fitzgerald court also applied its own interpretation of the newly amended Title VII statute. The EEOC regulation was more of an after-thought in Fitzgerald.

The court of appeals decision in Loper Bright also looked at both the Agency regulation and it also engaged in its own statutory interpretation. The court of appeals had the benefit of subject matter expertise from the National Marine Fisheries Service. That expertise avoided the need for a trial of competing experts.

For employment law, the Loper Bright decision is really an unnecessary decision addressing a problem that does not exist. EEOC regulations impose no visible burden on employers. Even if it did, most Title VII decisions do little more than pay lip service to Chevron. The majority opinion in Loper Bright recognizes as much when it says many courts simply ignore Chevron, saying it makes no difference. Loper Bright, at 28. The Supreme Court has essentially joined a national movement that disregards expertise. That movement started with popular sentiment opposed to medical science during the Covid pandemic in 2020.

See the Fitzgerald decision here. See the decision in Loper Bright here.

Southwest fired an airline attendant, Charlene Carter, in 2017 after she engaged in a two year campaign sending pro-life messages on social media to the union head. Many of the messages included graphic images. They were, said Southwest at the time, intended to cause emotional harm on the union head. The messages included personal insults. Among the some 100 messages, Ms. Carter claimed the Union board was “Pure Evil.” So, the airline fired Ms. Carter.

Discrimination

Ms. Carter claimed religious discrimination. She sued and won. A Dallas jury awarded her $5 million, which was later reduced to $800,000. Southwest then posted a notice about the trial, as required by the Judge. Judge Brantley Starr, a Trump appointee, ordered Southwest to state in its notice that it may not discriminate. The employer said in the notice that it does not discriminate. There was a dispute about whether the Judge ordered the use of “may” or “does.”

Sanctions

In any event, Judge Brantley Starr, of the Northern District of Texas, was not happy with the notice. He compared the use of “may” to Adam lying to God. The Judge ordered the three Southwest lawyers to take religious freedom classes from the Alliance Defending Freedom. The ADF is a well-known advocacy legal group opposing abortion. It just recently lost a Supreme Court appeal seeking to ban the use of mifepristone for abortions.

Southwest appealed that order to the Fifth Circuit. The higher court found the sanctions order was more like punishment. Therefore, the court should have followed the procedure for criminal contempt, not civil contempt. Civil contempt is designed to be remedial, not punishment. The lower court’s order, said the Ffth Circuit, will not compensate a flight attendant nor compel compliance with an order not to discriminate. There was no evidence that the three lawyers were involved in the decision to fire Ms. Carter. There is nothing to suggest they hold animus against the plaintiff. Too, such an order likely violates the constitutional rights of the three lawyers themselves.

See ABA Bar Journal report here. Judicial temperament is an important characteristic for all judges. Judges need to keep their cool. Judge Starr appears to have lost his temper at those three Southwest lawyers over a relatively minor issue. Too, requiring religious training from a partisan actor, like the ADF, is rather odd.

When a person is appearing in court on a charge of driving with a suspended license, there are some things he should not do. One of them is do not login to a Zoom hearing while driving. Yet, that is what Corey Harris did. He was due in court in Ann Arbor, Michigan, accused of driving while his driver’s license was suspended. Judge Cedric Simpson saw him apparently in his car. The Judge asked him if he was driving. Mr. Harris replied, “I’’m pulling into my doctor’s office, actually, so just give me one second. I’m parking right now.”

Judge Simpson then asked the Assistant District Attorney if he understood the charge correctly, that this was about driving while license was suspended. The D.A. answered in the affirmative. Judge Simpson then ordered Mr. Harris to turn himself into jail by 6 p.m. that day. That means the Judge revoked his bail or his ability to remain outside of jail on his own recognizance. See ABA Bar Journal report here for more information.

Memorial Day is a time to remember those veterans who gave all they had to give for us. I always think of  1SGT Saenz at times like this. Some 100 of us IRR members met at Ft. Jackson on March 13, 2005. We reported to Ft. Jackson, South Carolina for in-processing and reintroduction to the US Army.  We knew we would be deploying to Iraq.  Then MSGT Carlos Saenz had a huge laugh and a booming voice. He laughed a lot.  

Those first few days, some Reservists were angry about being called up. Some were happy to be there. MSGT Saenz was reasonably happy to be where he was, preparing for duty in a war zone. Later, as I learned, he performed very well. He inspired his soldiers. He did everything a competent, dedicated leader would be expected to do.

He died in the dusty streets of Baghdad near the end of our tour. We were leaving Iraq in just a couple of weeks when his HMMWV was struck by an IED. He was out on a convoy training members of the incoming unit. Some of his regular team members were not with him on that run. He died doing what he did best, serving others.

We should all serve our country half as well as 1SGT Saenz. See a tribute to 1SGT Saenz at the Arlington cemetery website here.

After Ft. Jackson, we, the IRR folks, were assigned to various Civil Affairs units. I was assigned to the 445 CA Battalion. We called ourselves the Pirates. Whenever we snapped to attention, we would all let out a gutteral “arrgh” in true Pirate fashion. Paul A. Clevenger was a Pirate. He was one of the younger soldiers. SGT Clevenger was promoted from SPC4 during our time In Iraq. He did well, from what I heard.  I just remember that he smiled, often. His obituary is here.

Like many of us, PVT Clevenger returned to the States with some demons deep inside. He took his life some two years after we returned. SGT Clevenger is another casualty of the war  – he too gave his country all he had to give.

On this Memorial Day, let us recall the fallen – including the Confederate fallen.

In what industry are both white collar and blue collar managers and leaders trained for each level of promotion? In the military. In the military services, NCO’s and officers receive training for each level of promotion. For decades, the U.S. military has required attendance and graduation from schools designed to train leaders at every rank. This has resulted in a professional, competent work force.

Young lieutenants in the Infantry Officer Basic Course role plays various counseling situations. They emerge, not as qualified counselors. But, they know enough to listen to soldiers with dire needs. As we often say in the Army, “In the Army, we are in the people business.” That is our way of explaining that we focus on our most important inventory, the men and women who make up our forces.

Study

Yet, a recent study by the Duke University Fuqua School of Business shows many employers in the U.S. see military veterans as a poor fit for emotional social jobs. In one study, conducted in the restaurant industry, employers rated military veterans as much more suitable for low feeling positions, such as dish washers and prep cooks than for servers. See Army Times report here.

That is ironic since every Sergeant has graduated from at least one NCO leadership school which typically last 4-8 weeks, in addition to the experience of leading and managing men and women in garrison and in combat.

Iraq

I could write a book on the combat experience. But, I can say that there is no greater pressure cooker than a combat zone. In a war zone, every decision, no matter how trivial, presents life or death consequences. Stress is never greater. Leadership ability, including the simple ability to work well with others, is at a premium. I wondered, when I was in Iraq sometimes, about the Morale, Welfare, Recreation Centers. At the MWR center, a soldier could check out a movie or read a book. Would it set someone off if their favorite move was not available? In a war zone, everyone needs to be performing his/her job at top efficiency.

U.S. employers do not appreciate the sort of training we have had in the military. In my lawsuits, I often encounter businesses that provide no training for its mid-level managers. None. I find that simply astounding. Don’t you know that a young Sergeant with a couple of tours in Iraq could handle a busy night at a popular restaurant?

There has been much talk in the news recently about judges who supposedly should recuse themselves. Donald Trump, the serial litigator, has asked every judge in his criminal cases, except one, to recuse themselves. But, his motions have generally been based on pretty specious grounds. What are good, solid grounds for recusal? We get a look at some pretty good grounds in a case involving Delaware lawyer, Frank G.X. Pileggi.

Pileggi alleges that when he worked at a firm called Fox Rothschild, he got cross-ways with another member of the firm, Gregory Williams in 2008. At the time, both lawyers worked for Fox Rothschild. Pileggi co-hosted a fundraiser for a candidate for governor. Mr. Williams became irate when Pileggi omitted his name from the list of hosts. Williams was on the organizing committee at the time. According to Pileggi, Williams barged into Pileggi’s office, and stiff-armed him with both arms, knocking Pileggi backwards and knocking over several items.

Privacy

The two antagonists then took the matter to the privacy of a loading area in their building. Williams challenged Pileggi to a fight. Pileggi, believing the matter would be better resolved more peacefully, tried to walk away. But, Williams followed close behind, hurling insults and taunts at Pileggi.

Now, years later, Mr. Williams is a federal judge. He is presiding over a case in which Mr. Pileggi represents one of the parties. Lawyer PIleggi asked Judge Williams to recuse himself. The Judge denied the motion. The Judge wrote in his order: “It is highly doubtful that any reasonable person, with knowledge of all the facts, would reasonably question the judge’s impartiality.” (No, of course not, Judge. Who could think such a thing?)

Now, Mr. Pileggi has asked the Judge to reconsider that denial. Is this grounds for recusal? I would think so. But, whether these are sufficient grounds or not, they are far, far better grounds than anything offered by any of Mr. Trump’s many different lawyers. See ABA Bar Journal report here for more information.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

The Federal Trade Commission has voted 3-2 to ban non-compete agreements. NCA’s affect 18% of the work force, or about 30 million workers. They have been used for fast food workers and CEO’s alike. Perhaps as recently as 20 years ago, they were only used for senior executives. But, their use has since grown in popularity …. with Employers. There was a large hue and cry a few years ago when Jimmy John’s Sandwiches started using NCA’s for its low level workers. Soon after, Jimmy John’s dropped the NCA requirement.

Normally, the new regulation would go into effect 120 days after it is published in the Federal Register. But, it is certain that business groups will file suit to stop the new rule. The U.S. Chamber of Commerce has already vowed to file suit.

Various bills have been presented in Congress to ban or limit the use of NCA’s. It is unlikely the new regulation will survive judicial challenge. The Supreme Court has issued clear precedent stating that “major questions” cannot be addressed with agency regulations. Surely, a ban on NCA’s would be a text book example of a “major question.” Something needs to be done about the over-use of non-competes. They are more and more used for average, hourly wage type workers. It amounts to involuntary servitude. NCA’s impose a huge burden on hourly wage workers. Too, if the Republicans win back the White House, the rule is equally certain to be withdrawn.

See The Hill report here for more information.

Where do we file suits? Generally, we file lawsuits in the county or locale where the dispute arose. In some lawsuits, the proper location is murky. in Farrera v. Travis County Attorney’s Office, No. 23-CV-01406 (W.D. Tex. 2/14/2024), John Ferrara was arrested in San Antonio. He had posted some blog posts criticizing the City of Kyle. Kyle is mid-way between Austin and San Antonio. In his suit, the Plaintiff complained of conspiracy among various town officials of violating his First Amendment rights.

It started when the Kyle police arrested Mr. Ferrara for allegedly stalking the Kyle Chief of Police. The Hays County Attorney’s office recused itself. The Travis County Attorney’s office was then appointed to prosecute the harassment charge against Mr. Farrara. In Plaintiff’s view, the TCAO simply rubber stamped the Kyle Police Department’s investigation. The Plaintiff then filed various lawsuits in San Antonio Federal court alleging similar complaints. Plaintiff Farrara then filed the instant lawsuit alleging the conspiracy.

Motion to Transfer Venue

The TCAO moved to transfer venue to Austin Federal Court. The Western District Court then reviewed the various factors involved in a transfer of venue. The witnesses were all located in Kyle or Austin – other than the Plaintiff. Kyle itself falls within the Austin division. Documents could be easily transported to San Antonio, but most of the documents were maintained in Austin or Kyle.

There is a history in San Antonio. Since, Plaintiff’s two prior lawsuits regarding this same subject were field in San Antonio Federal Court. There was also a third Federal lawsuit then pending in San Antonio. The Plaintiff correctly pointed out that two San Antonio judges have experience with Ferrara’s allegations. The suit was likely to be decided on paper motions.

The Court noted that San Antonio and Travis County residents have equal interest in civil rights. So, in the end, the Judge denied the Defendant’s motion to transfer venue. The case would remain in San Antonio Federal court. The Judge made his decision based on these factors. But, one could conclude that the Judge knew a conspiracy claim is exceedingly hard to show. The Court might have felt it might be a quicker process to decide based on a dismissal motion the case than to transfer. See the decision here.