Arbitration has been sold as a more efficient, cheaper alternative to litigation. But, the reality is that it can be very expensive. And, unlike traditional courts, if you do not pay the arbitrator, the lawsuit stops. AAA, the leading provider of arbitral service, requires periodic deposits to cover anticipated future costs of the arbitration. Pres. Trump is learning this the hard way in his lawsuit against Omarosa Manigault Newman. Ms. Manigaiult Neman wrote a “tell-all” book about Pres. Trump. The Trump campaign then sued her for violating the terms of a Non-Disclosure Agreement. Her NDA likely included a non-disparagement clause.

But, the Trump campaign has failed to provide the latest requested deposit of $51,940. AAA sent a letter to both parties saying it wold dismiss the action if the deposit was not made. The letter is addressed to both parties, but its the Trump Campaign’s arbitration. So if they want it to continue, then they must pay the piper. See Politico news report here. AAA sends that sort of letter only after more discrete requests for the deposit have been ignored.

Arbitrations typically start with a required deposit. But, if the process drags on further and the hours invested by the arbitrator mount up, then AAA will request an additional deposit. Records indicate the campaign paid $49,000 to AAA in 2019. So, that was apparently the initial deposit. It appears this $51,940 deposit is the later or subsequent deposit. Its easy to file a lawsuit. Its hard to pay those subsequent deposits.

The Department of Justice, the pre-eminent law firm in the country, has sued Stephanie Winston Wolkoff for breach of a confidentiality agreement. Winston Wolkoff signed the Non-Disclosure Agreement when she worked for a time at the White House. Later, this year, she published a “tell-all” book about Melania Trump. Ms. Winston Wolkoff is a former friend to Melania Trump.

Pres. Trump has required all White House employees to sign a NDA, as was his practice in private business. Someone needs to tell Pres. Trump he is not in private business. Non-Disclosure Agreements apply to confidential information which an employee acquires while employed by a private business. Under the laws in most states, if the employer satisfies such as criteria as: 1) the information is difficult to acquire or develop, 2) the information is private, and 3) the information has some value, then the private business can require that such information be kept confidential.

Working for the federal government is a completely different animal. The “information” any federal worker comes across belongs to the public, already. A President, who holds office for only 4-8 years, cannot privatize property – information – which belongs to the government, or or to the public. No one has ever tried this dubious tactic. So there is no caselaw on the topic. But, consider the Freedom of Information Act. That statute entitles any member of the public to any information which is not classified. The FOIA has some limited exceptions, but generally, all unclassified information is available for the asking.

There are also some two dozen various federal whistle blower statues which specifically provide a federal worker cannot be subject to reprisal for reporting in good faith unlawful actions by a federal agency. That law applies to former workers. it applies to even potentially unlawful actions by a federal employer.These laws are very broad.

But, the biggest hurdle for these private business NDA’s is the First Amendment. The First Amendent does not apply to private employers. Pres. Trump could use these NDA’s in his business with no fear of free speech rights. A private employer can insist that a worker not discuss matters of public importance. But, the First Amendment applies to every state government and to the federal government. No federal or state employer can prevent an employee from discussing publicly any matter of public import. None. It is not even a close question.

It is silly really to require NDA’s of federal employees. It is even sillier for DOJ to get involved. For DOJ to embark on a lawsuit against a former employee for her “tell all” book approaches the bizarre. Surely, DOJ has more meritorious lawsuits than dubious violations of a dubious NDA. See NBC news report here and Politico news report here. This at a “law firm” that largely hires only from so-called top tier law schools.  I expect a team of DOJ lawyers are right now feeling like the time their mommy made them take their little brother to the movies.

Another whistle blower has been forced out of his job in the Trump Administration. Dr. Rick Bright, a scientist at the National Institute of Health and a vaccine expert, has resigned. He submitted a whistle blower complaint several months ago. See my prior post here. His complaint was very detailed, extending over some 300 pages. He was demoted because he opposed the use of hydroycloraquine as a treatment for the COVID19. The Office of Special Counsel found in his favor, a rare enough event that would justify popping some champagne bottles.

Dr. Bright has now submitted an amended complaint which states that he still has not been assigned any meaningful duty. That itself is a crime in this pandemic area, that a person with his experience is not being utilized. See CBS news report here. This administration is truly a full-employment program for employment lawyers. And, worse, this administration is handing to the plaintiff lawyer bar some excellent cases against the federal government.

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

I have previously written about joint employers. See my posts here and here. TheTrump administration tried to make it harder to show a joint employer relationship. It adopted an interpretive regulation which the DOL thought would make it harder to prove joint employers. But, the court in State of New York v. Scalia, No. 20-cv-01689 (S.D. N.Y. 9/8/20), overturned that new rule. In that suit, some 20 states sued to stop implementation of the new regulation regarding joint employers. The Southern District of New York agreed with the plaintiffs. And, the DOL made it easy for the court to agree with the plaintiffs.

The Court noted that Department of Labor did not contest the estimate of costs of the new rule made by the EconomicPolicy Institute, a think tank. DOL simply replied that exact costs could not be measured. But, as the court noted, that does not mean evidence of the costs are not relevant. And, DOL made an unnecessary comment when it said that if all employers paid what they owed, then there would be no costs of the new rule. But, as the court noted, the Fair Labor Standards Act exists because some employers do not pay what they owe to American workers. If all employers paid what they owed, there would not be a Fair Labor Standards Act. Some DOL attorney probably felt smug in making that remark, but it did not help his/her position. Indeed, the court found it “silly” to argue that all employers honored their commitments to pay a wage, and therefore the new rule would have no adverse effect. Such a silly statement disregards the whole purpose of the FLSA.

The court also engaged in a scholarly treatise of the definitions of “employer,” “employ” and “employee.” It noted that the FLSA intertwines all three definitions. The court said the new regulation disregards the meaning of the FLSA. The new rule defines employer with an illustrative example that an employer “includes” anyone acting with a direct or indirect interest on behalf of the employer. The new regulation adopted that one example and made it the entire definition of “employer.” The court noted rightly that the FLSA definition is more broad than just that one example.

And, the court noted that the FLSA, passed in 1938, was drafted to address “middle men” who hired child labor. It was also meant to deal with sweat shops. Those sweat shops were an early form of farmed-out labor. A manufacturer could hire a sweat shop and then avoid direct responsibility for the labor conditions. The new regulation disregarded that history.

See the decision here.

Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages. TWC provides a helpful summary of the Texas Pay Day statute. See the TWC summary here. But, their summary does not answer one frequently asked question, when must an employer pay the last paycheck?  I am asked this often, since many employers withhold the last paycheck until the employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever.

The employer has no choice. The employer must pay the last paycheck within six days of the last day of employment. See Texas Labor Code. Art. 61.014. But, what happens to an employer if they do not meet the six day deadline? Not much. The employer can incur a criminal penalty, but who will enforce that law and seek a criminal penalty? In reality, no one does. Most District Attorney’s are far too busy to prosecute a crime they see as relatively minor.

What happens when an employer obtains access to your Facebook page? In Galvez v. City of Katy, No. No. H-18-4221, 2019 US Dist LEXIS 20634 (S.D. Tex. 2/8/2019), we see an employer who accessed Maria Galvez’ Facebok page while she was out on leave. The City had access to her page, because Ms. Galvez was the administrator for the City’s Facebook page. Her personal page was connected to the City’s Facebook page. The City then used some of her comments in a Council hearing in response to an appeal by the employee.

Ms. Galvez sued the employer for intrusion of her seclusion and invasion of privacy. Later, she added claims based on unlawful search and seizure (42 U.S.C. §1983) and on the Stored Stored Communications Act (18 U.S,C. §2707).  The employer moved for partial judgment on the pleadings. The Southern District of Texas rejected the motion.

The court found the City acted in a proprietary capacity when it looked at her Facebook Messenger pages. It was not acting in a governmental capacity. So, the court rejected the sovereign immunity defense. Intrusion of seclusion.invasion of privacy is an intentional tort. The Texas Tort Claims Act does not waive governmental immunity for intentional torts. The court added that it may turn out that the City had some governmental interest in looking at her Facebook information, for now at this stage, dismissal of her claims are not warranted. See the decision here.

“You get a rest break every four hours,” the seasoned warehouseman told me back in the 1970’s.  He knew everything. I just assumed he was right about this, too. But, since then, I have never seen anything in law or regulation stating that workers were entitled to a 15 minute break every 4 hours. But, there is a regulation encouraging employers to provide a rest break every so often. See 29 C.F.R. Sec. 785.18.This regulation tells employers that rest breaks improve efficiency. The regulation states that rest breaks of 5 to 20 minutes are common in industry. Any such rest break must be compensated. But, no rest break is required.

The regulations do provide that if a meal break is provided, it must be free of work duties. See 29 C.F.R. Sec. 785.19. Federal regulations do not require meal breaks. See Department of Labor’s Questions and Answers about the Fair Labor Standards Act here.

I had a dream a couple of nights ago in which I visited the netherworld. Felt this overwhelming desire to assure those brave men buried at the Aisne-Marne American cemetery in France that the President’s comments were wrong, all wrong. For those of us with a modest bit of PTSD, Pres. Trump’s comments stung. Those comments remind us that there are some folks in this country who do not understand and do not respect our service. Those comments by the President ring true partly because they are consistent with how the President has treated veterans and their families in the past. In the public past, with no need for anonymous sources.

In 2015, he famously said John McCain was not a hero, because he was captured. As though we always have a choice about being captured.

In 2016, he attacked a Gold Star family for days because Kizr Khan dared to criticize then Candidate Trump. In 2017, He called the widow of SGT La David Johnson, who had just been killed in Africa. Clumsily, he told her that SGT Johnson knew what he signed up for. Even worse, he struggled to recall SGT Johnson’s name. …. If you cannot recall the name of the fallen, do not bother to make the call. SGT Johnson and his widow were black. Let us hope that did not make a difference.

In June, 2017, Pres. Trump called the family of SGT Dillon Balridge after he was killed in Afghanistan. Chris Balridge, the father, mentioned they were having trouble obtaining SGT Balridge’s death benefits. Pres. Trump said he would personally send a check. The President said, more or less, that no other president had ever done this before. Three months later, the check still had not arrived and was mentioned in the Washington Post. Then the President finally made good on this odd promise.

Only some 4 or 5 times has Pres. Trump met the remains of fallen soldiers at Dover AFB. Dover is the place they come form overseas. It is not necessary that he attend the ceremony at Dover, but he has bragged that he has done so “many” times.  In 2017, he was there when the remains of SEAL Ryan Owens arrived. The father, Bill Owens refused to shake the President’s hand and told him he got Ryan killed for no reason. In a recent ad for Vote Vets, Bill Owens says the President made the decision to launch that raid over dinner with political advisors, not in any sort of situation room.  He made  approved the raid for no large tactical purpose, but to simply be a “big man at war,” said the Gold Star father. Bill Owens warns the country not to trust Pres. Trump. See Bill Owens’ ad here.

And, sure enough, in a State of the Union address soon after that raid, Pres. Trump had Ryan Owens’ widow attend. He sensationalized her presence in the midst of her grief.

In 2018, he sent active duty troops to the border to emplace concertina wire and paint the wall. Neither duty requires military expertise. He kept them there through Christmas. Again for no apparent strategic purpose.

In 2019, 11 U.S. soldiers suffered concussions after missile attacks in  Iran. The President minimized their injuries, saying they simply had headaches. But, of course, we know today that concussions do sometimes lead to traumatic brain injuries.

When the captain of the U.S. Theodore Roosevelt took extreme actions to protect his crew from the coronavirus, the president disparaged the captain in a series of tweets. The captain was soon relieved of command. Relived from command generally ends a career.

The President has disparaged the service of John McCain over and over. He disparaged American heroes, like Adm. Bill McRaven, Gen. James Mattis, Gen. John Kelly, Gen. Stanley McChrystal. See The Atlantic story here for more information. This is a President who pays lip service, but little else.

 

 

There are many things an interviewer can ask a job applicant. But, you do need to be careful about some questions. Here are some things to consider.

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

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. Why would this question be helpful? Unless this is a ruse to discover whether a female applicant might quit when she wants to have a baby. This question serves little purpose.

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked of Hispanic or Hispanic-appearing applicants.

4. Do you have a disability? Do not ask this specific question. But, an employer can ask something similar if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5. Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

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

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial transgression, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.