Internships are offered as a way to gain experience.  But, often the only persons who can afford to accept an internship are children of families who can support the worker.  Apparently, some internships are nothing more than a way to avoid paying minimum wages.  The Charley Rose Show, seen on PBS, has agreed to settle claims by interns who claimed they should have been paid – even though they accepted unpaid positions.  The Department of Labor explains that internships are supposed to involve education more than traditional labor.  

The Charley Rose Show agreed to settle a class action claim of up to 189 interns for $250,000.  Similar claims have been filed by the same law firm against Fox Searchlight Pictures and the Hearst Corporation.  The Charley Rose lawsuit cited guidance from the DOL that states that trainees who merely replace regular workers or augment regular workers should be paid minimum wage.  See New York Times report.  

In fact, DOL guidance requires that to qualify as an internship,

  • the job must benefit the intern
  • the intern does not displace regular staff
  • the employer who provides the training receives no actual benefit and the training may even impede the operations of the employer
  • the intern is not necessarily entitlted to a job at the conclusion of the internship
  • the internship includes training which would be similar to training in an educational environment

See DOL Guidance on internships here. 

Internships are common in many white collar industries.  In fact, many judges and courts of appeal regularly offer internships.  But, yes, I am sure the educational component is no different than any new hire.  There may be many more such lawsuits in the future. 

My colleague and friend, Chris McKinney has mentioned a settlement by The Scooter Store.  The Scooter Store, based in New Bruanfels, Texas, settled a case filed by the EEOC for $99,000.  The EEOC represented James Sherman, a manager who sought accommodation for his disability.  Mr. Sherman suffers from psoriatic arthritis and needed a temporary leave of absence.  The complaints states that The Scooter Store denied the request and fired Mr. Sherman. 

The EEOC filed suit in new York against the nation-wide employer.  As part of the settlement, The Scooter Store agreed to a consent decree lasting five years.  The consent decree requires the Scooter Store to re-train its managers regarding requests for leave and to change its policies regarding leave requests.  See Chris’ post.  

Ironically, The Scooter Store was named one of the best places to work in the San Antonio, Texas area in 2011.  Too many employers seem to be unaware that leave from work is a necessary accommodation in the right circumstances. 

Alma Guzman-Estrada worked for Southside Independent School District for 30 years.  She was fired.  She sued Southside ISD for discrimination and retaliation.  Then she was elected to the school board.   The former employee, now a school trustee, had her day in court and has now lost.  See San Antonio Express News report.  The judge found no evidence that the firing was in response to her complaint about discrimination regarding her wages.  The court found the reasons for her firing were not retaliatory – apparently beliving the district’s claim that she was a problem employee prior to her complaints about wages.  I have previously written about this lawsuit here and here. 

The plaintiff’s lawyer had claimed the perceived problems with Ms. Guzman-Etsrada had not been docuemented at the time.  But, there was an email to the plaintiff in October, 2009 warning her that her behavior at work was a problem.  Ms. Guzman-Etsrada responded that the email was “offensive,” but she did not address the underlying concerns.  A few weeks later, the plaintiff complained that she had not been invited to a Thanksgiving lunch with the Superintendent.  She emailed the superintendent telling him that omitting her was a “grave and serious” concern.  She accused a colleague of being a “wetback.”  She was accused of other behavior issues.

About the time of the lunch non-invitation, She filed her grievance alleging problems in her pay.  When the grievance was heard in February, 2010, she raised the issue of discrimination for the first time, said the court.  In January, 2010, her supervisor had recommended that she be fired.

In April, 2010, the district’s lawyer sent letters to the plaintiff’s lawyer offering to provide them with the results of their investigation into her claims of discriminatory pay.  The employer offered to provide copies of witness statements.  Ms. Guzman’s lawyer, said the court, never responded.

Anytime a 30 year employee is fired, that sounds suspicious.  But, if the evidence is as the Judge described, then her case had some serious flaws.  The recommendation to fire her was apparently made before she first claimed discrimination.  The behavior issues started before she complained about discrimination.  And, her lawyer did not respond to an early attempt to review the available evidence.  The lawyer may have had good reason to ignore the offer.  But, ignoring an early offer to review the evidence suggests the plaintiff was more interested in a lawsuit than in early resolution.

The plaintiff, said the court, was making $42,000 per year.  If that number is correct, then the plaintiff’s offer to settle for $800,000 and later for $600,000 are exceedingly high.  At the time she made these offers, her lost pay would not amount to more than one year’s pay.  As I have mentioned on this site before, many juries do not award a successful plaintiff compensatory damages, at all.  But, if they do award emotional suffering type damages, then they award no more than the equivalent of one or two year’s lost pay and benefits.

Compensatory (or emotional suffering type) damages are limited to $300,000.  So, an offer of $600,000 means the plaintiff was seeking $300,000 for lost pay and benefits or some amount close to that.  But, one year of lost pay for Ms. Guzman-Estrada would only amount to $42,000.  Her two offers appear to seek much more in compensatory damages than the typical jury would award.

Settling a case is art, not science.  But, one certain way to ensure no response from the employer is to make the initial offer so high that the offer appears to be based on fiction.  Ms. Guzman’s lawyer may have had some very good strategy.  Looking at this from the outside, we can never know what actually happened and why.  But, if the plaintiff simply pulled numbers out of the air, then they could not reasonably expect to settle the case.

So, Ms. Guzman-Estrada loses her lawsuit entirely.  Her lawyer indicated they would consider filing an appeal.

The Iowa Supreme Court ruled in favor of a dentist who fired a dental assistant because she was too attractive.  The dentist said he and his wife found the assistant to be a threat to their marriage.  Basing its decision on the Iowa Civil Rights Act, the high court said the termination was justified because it was based on emotions, not gender.  The employer’s lawyer said this was a victory for family values, because the assistant was terminated to save his marriage.  Dr. James Knight fired Melissa Nelson, a ten year employee, after she started wearing clothing that was too tight.  

After firing Ms. Nelson, Dr. Knight replaced her with another female worker.  His workforce is all female.  See Mother Jones report.  Over the years, Dr. Knight told Ms. Nelson her attire was distracting and would ask her to wear a lab coat.  Ms. Nelson denied her clothing was tight or inappropriate. 

During the last six months of her employment, the doctor and the assistant texted each other regarding their respective families.  One or two texts were somewhat intimate, but most were innocuous.  The doctor’ wife discovered the texts and demanded that the doctor fire Ms. Nelson.  They met with their pastor and he agreed.  Dr. Knight met with Ms. Nelson with his pastor present.  He fired the long-time assistant saying she had become a "detriment" to his family. 

Ms. Nelson’s husband called Dr. Knight.  With the pastor present, they spoke.  The dentist said Ms. Nelson was the best assistant he had ever had.  But, they were getting too close personally. 

Ms. Nelson claimed she was fired because of her gender.  She did not allege Dr. Knight had harassed her.  The Iowa Supreme Court relied on state and federal cases that found terminations based on jealousy were not due to gender.  When an employer fires an employee with whom he has had an affair and the wife becomes jealous, those decisions find the termination to not violate the pertinent discrimination statute.  That is, treating one gender better than another is permissible when the relationship is due a concensual relationship with the boss.  See Iowa Supreme Court decision.  In these prior decisions, Title VII is not involved because the termination is based on sexual conduct, not on gender, said the Iowa Supreme Court 

But, in this case, the female employee did not engage in flirtatious behavior.  The plaintiff argues rightly that she was targeted simply because of her gender.  In strained reasoning the court found the employer, Dr. Knight, to have been motivated by his wife’s jealousy, not by Ms. Nelson’s gender.  The court was troubled by the difficult choice.  On the one hand, the employer could, based on this decision, terminate several female employees based on the possibility he might seek an affair in the future.  But, on the other hand, any termination decision based on a consensual relationship could be challenged because the affair could not happen but for the person’s gender. 

The Iowa high court noted that Ms. Nelson applied some gender stereotyping when she questioned why Ms. Nelson would not be anxious to get home after work to be with her husband and children.  The assistant would sometimes stay at the office after work had ended.  But, said the court, the plaintiff did not allege gender stereotyping.  

This is a difficult call for all courts.  The caselaw is clear that in a consensual relationship, both employees should be treated the same.  If the female worker is fired, then the male manager should also be terminated.  But, how can the boss be fired?  So, instead, the courts engage in strained reasoning about what truly motivated the boss when he fired the female worker.  This decision arose after the employer moved for summary judgment.  The court should have simply found sufficient factual issue to allow Ms. Nelson’ claim to go to a jury.  Doubts about motivation should always be resolved by a jury. 

 

I first wrote about this issue here.  John Gibson, a lawyer in North Texas, picked a name for his blog, www.texasworkerscomplaw.com.  The Texas Department of Insurance, Workers Compensation Division, sent him a "cease and desist" letter accusing him of violating a state statute that forbids the use of "texas" and "workers compensation" in connection with advertising.  The statute apparently dates back to the days when workers compensation was a lucrative area and some lawyers sought to advertise their expertise in workers compensation law.  Now, of course, few Texas lawyers accept workers compensation cases.

Mr. Gibson sued the state.  He argued the department’s actions violated the First Amendment.  The district court found in favor of the Division of Workers Compensation (DWC).  

But, on appeal, the Fifth Circuit in New Orleans  agreed with Mr. Gibson.  A panel of three judges found the state did not make a "serious" attempt to tailor the statute to avoid First Amendment concerns.  The court recognized that a domain name could constitute commercial speech  if the name is used "almost exclusively" for commercial purposes.  See ABA Bar Journal report.  The Fifth Circuit found that the name of the blog was not necessarily a solicitation.  Even if it is a solicitation, the blog and domain name are not necessarily related to Mr. Gibson’s law practice.  Mr. Gibson does practice workers compensation law.  But, his blog is not "directly" related to his practice.  So, attorney solicitation cases do not apply.  The court seemed to appreciate the "informational" aspect of a blog, as opposed to web sites which are more like advertising. 

The Fifth Circuit also found that there is nothing inherently deceptive about the domain name, so it is subject to First Amendment protection.   See Fifth Circuit opinion here.  A state could still regulate speech that is not inherently deceptive if the state can show a carefully tailored state interest.  But, said the court, the state of Texas could not make such a showing. 

The Division of Workers Compensation had also argued that the public could confuse the DWC with the blog.  But, found the court, DWC did not offer sufficient briefing of that sort of possible confusion. The appellate court remanded that portion of the case back to the lower court for further factual findings regarding the constitutionality of the state statute. 

Many of us are concerned about our neighbors in Newtown, Connecticut after the terrible shooting there.  My colleague, Dan Schwartz, at Connecticut Employment Law Blog, mentions that the Sandy Hook Elementary will be moving to a new location for the rest of the school year.  They will need school supplies as if they were starting a new school year.  Dan is collecting gift cards.  Anyone who wishes to help out can email Dan at dschwartz@pullcom.com.  See Dan’s post for more information.  As the President said, Newtown, you are not alone. 

 

In the lawsuit business, we have to deal with "difficult" people on occasion.  Its just part of the business.  Molly DiBianca has written about the "Rambo" litigators – those lawyers who seek victory at any cost.  See her post here.  Her comment that bullying lawyers tend to lose their cool when they perceive some disadvantage is spot on.  Mean people are scared people, as she says.  Its difficult for my clients, but when the opposing lawyer loses his/her cool, that is probably a good sign for us.  

Bullying lawyers are rare, but they are out there.  I urge my clients not to respond in kind.  Ultimately, anything said by either party will come in front of the judge or jury.  So, its better to let the judge or jury exact appropriate "revenge." 

And, as Molly reminds us, lawyers who lose control of their tempers will probably lose control of their case, as well…..

I wrote about this case previously here.  A woman filed an EEOC charge but was then elected to the school board of the employer against whom she had filed.  Alma Rosa Guzman-Estrada worked for Southside Independent School District for 30 years when she was fired in 2010.  Ms. Guzman-Estrada says she was fired two months after she asked why her pay was less than that of male colleagues doing the same work.  Ms. Guzman-Estrada was elected to the school board for Southside Independent School District in 2011.

As Trustee for the school district, she submitted settlement demands to her former employer in the range of $600,000 and $800,000.  As I mentioned at the time, those seem like very high amounts, perhaps bordering on frivolous.  Compensatory and punitive damages are limited to $300,000.  In December, 2011, she had only been out of work for about a year.  So, unless her salary was $500,000/year, her settlement offers were way too high.  It is not surprising, therefore, that the parties have not agreed on a settlement.  The Defendant would have better chances with a judge or jury.

The School Board Trustee had her trial this week in front of Judge Hudspeth.  Apparently, the parties waived a jury.  During the trial, the defense claimed she was divisive and engaged in gossip.  The judge has already dismissed her discrimination claims.  So, her trial is simply about whether she suffered retaliation for asking about posible discrimination.  Her supervisor testified he recommended she be terminated after her grievance, but said he had problems with her before her grievance.  He said Ms. Guzman would undercut him with subordinate employees.  He said another employee accused her of calling him a “wetback,” a derisive term for undocumented immigrants.

The Plaintiff’s lawyer, however, said none of these problems were documented at the time they occurred.  Olga Brown says her client was not warned about these supposed incidents verbally or in writing.  See San Antonio Express News report.

It always looks suspicious when a 30 year employee is fired.  It took Southside ISD 30 years to find out she was divisive?  And, if the Defendant cannot establish these alleged problems actually did occur, then the former employee should win.  But, her chances of getting $800,000 or $600,000 are very low indeed.  The Judge will make the decision regarding liability.

 

Sometimes, its the little things that lead to employment lawsuits.  At one Wisconsin law firm, the receptionist, Sandy Weidner, was expected to make the coffee in the morning.  One morning, someone failed to make the coffee.   Annoyed, management looked at Ms. Weidner’s time card and noted several alleged instances when Ms. Weidner failed to note early departures.  She left 15-30 minutes early and did not note that on her time cards.  She "stole time," said the law firm.  The firm fired her. 

Ms. Weidner applied for unemployment benefits and won.  She denied she stole anything, saying she had recently retired after 20 years as a government worker and did not need the $150/week unemployment benefits.  

Her employer, the Cross Law Firm, represents employees in employment disputes.  See ABA Bar Journal report. 

As lawyers, our time is often not our own.  We have to adjust our priorities for our clients, opposing parties and the Court in general.  One Minnesota lawyer has learned that the hard way.  Tayari Garrett had a trial scheduled at the same time her brother was getting married in France.  She filed a motion to continue the trial date, but it was denied.  She purchased plane tickets anyway.  Her client was being prosecuted for mortgage fraud.  The trial started.  At first, she apparently claimed that she was in the hospital.  But, she was actually on her way to France.

Ms. Garrett had twice tried to have the judge recused, a measure that never pleases any judge.  The case was heavily litigated.  The lawyer was later found guilty of contempt and fined $1,000 and sentenced to one year of probation. See ABA Bar Journal report.  But the damage to her reputation is more serious.  In the legal business, a person’s reputation for integrity is an important asset. Sometimes, its just better to just miss the wedding.