The EEOC released statistics showing the states with the most EEOC complaints on file.  Texas was number 1.  This is probably because we have a large population and in other states, such as California, employees may prefer to file their complaints with the state version of the EEOC.  But, here in Texas, we have a state version of the EEOC, the Civil Rights Division of the Texas Workforce Commission.  The CRD only has one location, in Austin.  So, sure, most Texas workers file their complaints with the closest office of the EEOC.  See Workplace Prof blog. 

The better question is who has the most EEOC complaints per capita.  David Wiley at LaborRelated has answered that query.   States from the Deep South lead that list: Alabama, Mississippi, and Arkansas are the top three states with EEOC filings.  Texas is a distant sixteenth.  States with the least filings include Montana, Vermont and Maine.  

A defense lawyer has penned an article in Texas Lawyer purporting to reveal the secrets of plaintiff employment lawyers.  You can see the article at his blog, hr risky business.  He assigns amoral motives to plaintiff lawyers and accuses us of unsavory tactics.  Stating that he formerly worked for a plaintiff employment firm, he claims that his knowledge of the "enemy’s" tactics help tighten his "counter-attack" today as a defense lawyer. 

I cringe a bit at hearing a lawyer using those terms in a public forum to describe litigation.  We are not "enemies."  We do serve opposing sides.  But, I have faced an actual enemy, one who sought to kill me and my fellow soldiers everyday we served in Iraq.  A lawsuit is nothing like war and should not be.  Indeed, speaking as a plaintiff lawyer, most plaintiffs reserve some residual amount of respect for their employer.  Even when wronged, they cannot totally eject all feelings for someone they have served for 10, 15, or 20 years.  

The article leaves out the rest of the story.  For example, the author describes an employee who complains about discrimination when she is about to be fired.  In the author’s belief, she submits her complaint only to save her job – at the suggestion of her clever plaintiff lawyer.  The plaintiff lawyer stays in the "shadow" to help the employee.  At the clever lawyer’s urging, the employee copies everyone in the chain of command on her email – so she can argue later that anyone who fired her knew about the email.  The defense lawyer mentions rightly that retaliation is easier to prove than discrimination.  By staying in the "shadows," the conniving plaintiff lawyer is thus able to create a retaliation lawsuit. 

But, the author’s connection to reality ends there, I am afraid.  He leaves out the rest of the story.  He leaves out  that the employee who suspects she is being treated differently because of her gender probably agonized for weeks or months over simply seeing a lawyer.  That she called several lawyers, all of whom declined to meet with her.  He leaves out that she only came to believe she was being treated differently due to her gender after one or two trusted co-workers commented to that effect.  Only after co-workers told her it did not make sense that she was being disciplined for that particular offense.  The author leaves out that she came to this conclusion after she personally observed two or more male employees avoid scrutiny for the same or similar offense. How she has cried after work for days on end.  The defense lawyer leaves all this out. 

But, the most glaring omission from his Texas Lawyer article is that as trial lawyers, we have to zealously advocate for our clients, yes.  But, we must still remain officers of the court, able to talk with the opposing counsel.  We have to work out mundane matters even with – and especially with opposing counsel.  We can talk with opposing counsel, but not with "enemies."  Those of us who have faced actual enemies appreciate the difference.  In Iraq, I would never have called the insurgents to set up a time to review documents or depose their commanders.  The author does not appreciate the difference between true war and a lawsuit.  It is beliefs like his that "clog the courts." Such beliefs benefit no one.  

 Memorial Day is a time to recall those who served our country.  It is also a time to recall that selfless service is surely one of man’s greatest virtues.  The San Antonio Express News ran a story about some veterans who are raising money for a Texas version of the Viet Nam War Memorial wall.  They also visit homeless vets in and around San Antonio and offer support.  See story.  One veteran compared his service in the Army in Iraq to that found when serving homeless vets and working on the wall: "The highest of the highs was was just the camaraderie between us.  We were brothers, man, you know what I’m saying?"

We recall the service and sacrifice of many veterans of all America’s conflicts.  But, we should also recall the "highest of the highs."  As a veteran, I feel lucky to have fellow veterans like Eustice Hawker and his veterans organization.  In this country, we have our differences.  But, on this day, we come together.  

This Memorial Day, thank a veteran for his/her service. 

Wal-Mart has settled Department of Labor claims that many workers were mis-classified as exempt.  Exempt workers are not paid overtime.  4500 workers were part of the suit.  The settlement includes $4.8 million in unpaid overtime wages.  See Workplace Prof Blog.  As Workplace Prof mentions, Wal-Mart seems to always be in violation of one workplace law or another.  Civil penalties of over $463,000 were also assessed due to the repeated nature of these violations.  See DOL news release. 

The DOL investigation was regarding vision center managers and asset protection coordinators for Wal-Mart. 

According to a recent survey of parties to employment lawsuits, neither side believes employment discrimination cases are fair.  But, plaintiffs are more likely to feel dissatisfied with their lawyers.  The American Bar Foundation, part of the American Bar Association conducted a survey of parties to employment lawsuits.  See ABA report.  The study is based on a random sample of 1,788 cases and 100 interviews with plaintiffs, defendants and lawyers.  

Plaintiffs start out optimistic but are surprised at the high cost of litigation.  They experience conflicts with their lawyers and their personal lives are affected.  Out of 41 plaintiffs interviewed, 27 believed their lawyers were incompetent or worked against them.  25% thought their lawyers were corrupt. Some complained that their lawyers did not share control of the litigation with them.  And, on top of all that, the plaintiffs rarely receive a substantive ruling on the merits of their case. 

Many plaintiffs cried during their interviews.  Thirteen plaintiffs thought their lawyers displayed integrity and skill, but still thought the lawyers provided bad advice, made mistakes or colluded with the employer.  Many plaintiffs mentioned the high costs of litigation.  One plaintiff said he lost his million dollar home.  He lost his wife and children because he became so difficult to be around. Many mortgaged their homes or took a second job to pay the legal expenses. 

Pro se (i.e., they represent themselves) plaintiffs reported confusing procedures and "big 25 cent words."  One pro se plaintiff’s case was dismissed when he mistook two court notices for an apparent dismissal.  He was given time to re-file his complaint.  But, when he failed to do so, his case was dismissed.

On the other hand, defendants complain that anyone, including "problem employees" can bring meritless lawsuits.   One defense lawyer commented that he hears managers complain that employees can bring these lawsuits and they do not have any "skin in the game"  They do not have to pay anything.  The system is not fair, say these managers.  The plaintiffs should have to pay something. 

Sociologists Ellen Berrey, Steve Hoffman, and Laura Nielsen conducted the study.  They found that both sides agree the system is unfair.  But, beyond that, the parties’ two experiences differ dramatically.  One side, the plaintiff employees, lose their homes and families and face a very expensive process.  They end up divorced, depressed and bankrupt.  While, the employers do not care for the litigation process either.  They do usually have the resources and expertise to keep the costs under control. 

Much of these findings resonate with my experience.  One time, three plaintiffs cried in my office in a three month time period and two of them were male.  It is hard to find employment lawyers for employees.  So, many employees end up filing their own lawsuits.  Many lawyers "dabble" in employment law.  Such lawyers may miss key issues or deadlines.  Litigation costs are very high. Each deposition will cost $500 or more.  Many employment cases involves 3-4 or even a dozen possible witnesses.  Deposing each of them will run into thousands of dollars. 

But, the worst part may be that personal injury lawyer ads tend to suggest to non-lawyers that there is a lawyer on every corner.  Not so for employment law.  In San Antonio, a community of over a million persons, we have perhaps 10 lawyers who represent employees on a regular basis.  The EEOC issues their right-to-sue letter leaving 90 days to file a lawsuit.  Ninety days is precious little time to find a lawyer for a major lawsuit. 

Employment litigation is very emotional.  It is not too different than family law cases.  Add to the strained nerves, issues with the plaintiff’s own lawyer and the lawsuit can become very emotional. 

Depositions of the employee victim in a discrimination case is a key event.  The employee must demonstrate that s/he can tell a coherent story and maintain some composure about one of the most difficult events in his/her life.  Deposition strategy for the employer’s lawyer essentially is to obtain information from the employee.  Often, the defense lawyer specifically seeks information from the employee that is damaging to the employee’s case.  The defense attorney wants information he can use against you.  See Pitts Law comments regarding what to expect at a deposition of the plaintiff. 

So, there should be no reason to ask the same question more than once or twice.  Asking the same question continuously is "badgering."  Badgering is defined in the American Dictionary as asking the same question repeatedly.  To ask the same question over and over, knowing what the answer will be is surely someone’s definition of insanity.  Yet, so many of us do exactly that in a deposition. 

More importantly from the defense lawyer’s perspective, when you ask overly harassing questions, you remove any hope of eliciting cooperative testimony.  Many employees expect some degree of cooperation with their employer in a lawsuit.  All bounds may have been crossed, but there will still be some residual expectation for some mininal cooperation.  Once even the slightest cooperation appears foregone, the plaintiff will hedge on every question, no matter how innocent.  And, in these days when settlement is such a part of every lawsuit, the amount necessary to settle will rise exponentially.  

As Mike Maslanka says, the deposition is about the forest, not about the trees.  So, us attorney types, we need to relax a little and "take a breather."

 In Texas, an employee does not have a right to a copy of one’s personnel file once the employee leaves a job.  It is not that there is a law prohibiting obtaining a copy.  There simply is not a law providing one way or the other.  Texas is an at-will state.  So, if there is no statute, then private employers can do as they please.  

But, if the employee worked for a state, county or local government, the employee could submit a Public Information request pursuant to Texas Government Code Chapter 552.  The Public Information Act is the state equivalent of the Freedom of Information Act.  If the former state, county or local government employee submits a Public Information Act request, then he/she can obtain a copy of his/her personnel file. 

Juries do the craziest things, sometimes.  In a trial a few years ago in the Rio Grande Valley, a jury returned a verdict following several days of testimony.  The verdict said yes, the employer violated anti-discrimination laws.  But, the jury said no, the employee did not suffer any lost pay or compensatory damages (emotional suffering).  But, regarding punitive damages, the jury awarded $200,000.  The employee apparently suffered from some Depression, so there was some issue regarding whether he truly mitigated his damages – that is, whether he actually could have and did look for comparable employment.  But, even with the possible failure to look for work, he should have been awarded well over $50,000 in lost pay. 

To award punitive damages but no lost pay or benefits goes against the trend of most juries.  In fact, most juries do just the opposite: they might award lost pay but nothing else.  And, under some federal caselaw, punitive damages with no emotional suffering type damages may not be supportable.  A court of appeals might find the award of punitive damages lacking in evidence and then take away the entire judgment.  So, it is a crazy jury verdict. 

The jury was deliberating a relatively long time – over two days, so they were probably deadlocked.  The crazy verdict may have resulted from compromises to break the deadlock.  I do not know what was offered to settle the case – if anything.  But, as my former judge used to say, "the worst settlement is better than the best trial."   Because, juries do the craziest things….

Many laypersons people are familiar with the retaliation part of Title VII of the Civil Rights Act of 1964.  That anti-retaliation provision prohibits retaliation against someone who opposes discrimination.  Title VII is a federal statute.  Texas is an at-will state.  But, even so, Texas does have a few state anti-retaliation statutes.  

Texas prohibits reprisal against an employee who reports abuse or neglect of a resident at a nursing home.  Texas Health & Safety Code Sec. 242.133.  Such a lawsuit must be filed within 90 days of the alleged reprisal.  

An employee is protected against being ordered to commit an illegal act.  This claim is known as a Sabine Pilot claim, after Sabine Pilot v. Hauck, 687 SW 2d 733( Tex. 1985).   The refusal to commit an illegal act must be the sole cause of the termination.  I previously discussed an important case regarding the Sabine Pilot action here.  

An employee is also protected because he/she served on a jury.  Texas Civil Practice & Remedies Code Sec. 122.001.  An employee who believes he/she has suffered retaliation due to jury service has two years in which to bring such a claim.  The damages are limited, but still, this statute does offer some protection.  

Also, state or local government employees are protected if they report violations of law by their employer.  See Texas Government Code Sec. 554. The good faith report of the violation of law would need to be made to an appropriate law enforcement agency. This statute is known as the Texas Whistle Blower Statute.  It is only available to government employees. 

While this list is not completely exhaustive, these are the few protections we Texas employees have which actually have some teeth.  

 

I first published this post in 2009.  It seems only more relevant now.  Anti-Muslim bias is more prevalent than it ought to be. I appreciate who and what attacked us on Sept. 1, 2001.  But, my experience has taught me something a bit different. 

I served one year in Iraq as an Army officer.  I and many of my comrades could not have survived without the service of hard-working Iraqi Muslims.  Since returning home, I have been a little surprised to hear the folks here at home denigrate all Muslims.  i find that hard to accept.  Some Moslems perhaps, but not all.  The Moslems I knew in Iraq were wonderful persons, who, I believe, were made better by their faith.  Not all, of course.  But, some yes.  I knew a few Muslims who displayed a pronounced humility and strong sense of decency.  It is no more true to say all Muslims do this or all Muslims do that than it is to say all Christians do this or all Christians do that.  

I do comment on the state of Iraq and Afghan vets.  It would not be fair to fail to mention the hard-working, devout Muslims I knew and enjoyed when I was there.  Those Iraqi interpreters were devoted to improving their country.  But, unlike us, the Iraqi interpreters could not leave the violence after a year.  They would go home to it everyday.  Iraqi interpreters often had to sneak their way home to avoid being discovered as US employees.  Those Iraqis serving with us were targeted like the US soldiers.  But, unlike us, they could not escape the violence. They were paid well.  But, no one risks his/her life time and again for mere money.  And, no one risks the lives of their families time and again for mere money.  

My former translator, Salma, was captured, tortured and killed.  Her only crime was that she worked for us.  Other interpreters I knew were targeted in their homes and in their neighborhoods.  Almost all of our interpreters were Muslim.  None tried to kill me or any US soldier.  None of our interpreters ever tried to kill anyone.  Indirectly, however, they fought the good fight simply by interpreting for us and providing desperately needed cultural advice.  They risked all.  

The "bad guys" in Iraq, what we referred to as Anti-Iraq Forces, earnestly sought the names of our interpreters.  They hated the interpreters.  The extremists viewed the interpreters as collaborators.  Ansar Al-Sunna captured Salma in 2006 and killed her.   Salma was careful, but not careful enough.  They posted a picture of myself with Salma, almost gloating over their uncovering of an interpreter.  It is ironic that many in the US denigrate all Muslims, while many of the Muslims I knew in Iraq were forced from their jobs, their families and their country due to threats from the Muslim extremists.  But, as Salma would say, salam alaikam, "peace be with you."