When faced with harassment of any sort, an employee should complain about it.  That bit of advice seems obvious.  But, if you are a single mother, or if you simply like your job other than the harassment, that advice is not so simple.  Ruth Piller worked as a lawyer at a large Houston law firm.  She was the subject of photo-shopped pictures of herself over women wearing bikinis, and sushi.  She did not complain abut the emails.  She eventually was terminated in October, 2011.  See Texas Lawyer report.  She has now filed a complaint with the Equal Employment Opportunity Commission regarding her former employer, Hays, McConn, Rice and Pickering. 

Her EEOC complaint alleges that Hays, McConn allowed a practice of exposing female partners and associates to sexually harassing conduct.  The chief harasser was shareholder Staton M. Childers, says the complaint.  Ms. Piller also claims the firm did not provide accommodations for her disability, a neurological disorder.  She says she was asked to go out on long-term disabilty leave, when her billable hours became low.  She did so and was then terminated after 90 days. 

The firm issued a statement saying they wished she had complained during her employment.  The firm assures they would have taken some action.  They also claim that Ms. Piller joined in the emails and even initiated the conduct about which she now complains.  The firm claims they hired an outside investigator to look into the emails and photos.  The outside investigator found no violation of law firm policy. 

I find it hard to believe any investigator would not find these photos and comments in violation of something.  See Houston Press blogs for more detail.  According to Houston Press, Mr. Childers sent out salacious, photo-shopped emails about other female employees at the firm.  

Victims of discrimination do often try to "go along to get along."  It would have been better had she complained at the time.  But, much will depend on the context in which she supposedly participated in the objectionable conduct.  It is remarkable that the newspaper obtained a copy of her charge.  Only the EEOC, the employee and the employer would have a copy.  EEOC charges are not public record. 

They were household names in the 1960’s, 70’s and 80’s.  Now, they are suing the National Football League.  Walt Garrison, Bob Lilly, Rayfield Wright, LeeRoy Jordan, Randy White, and others have all joined in a lawsuit against the NFL alleging the league failed to warn them about the risks of head injuries they suffered. 

An NFL spokesman denies the allegations, saying they did not mislead anyone about the dangers of professional football.   See Texas Lawyer report.  Many former players across the country have recently sued the NFL for head injuries. 

There is no statute in Texas protecting workers from being forced to commit illegal acts.  So, prior to 1985, if your employer told you to rob the local bank and you refused, you could have been fired.  But, now there is judge-made law in the form of Sabine Pilot v. Hauck, 687 S.W.2d 733 (1985) that found protection for a worker being forced by an employer to commit an illegal act.  See decision.  In the 20 years plus since the decision was issued, the courts have established that a Sabine Pilot action applies to laws involving criminal actions.  If an employee is asked to commit a criminally illegal act, then that employee is protected from adverse action by the employer.  But, we did not know whether this protection would be based on contract or tort law.  If it is based on tort, then it would provide for emotional suffering type damages and punitive damages.  

Now, we learn that a Sabine Pilot lawsuit is indeed based on tort.  According to the recent Texas Supreme Court decision in Safeshred v. Martinez, No. 10-0426 (Tex. 4/20/12), it is based on tort or personal injury actions.  So, punitive damages are available.  See decision.  The Supreme Court, never friendly to plaintiffs, found that to award punitive damages, a plaintiff must show more than the termination for refusal to commit an illegal act.  The plaintiff must show specific intent to cause harm to the plaintiff apart from the termination itself.  The court provides an example where the employer circulates false rumors about the employee so as to prevent him from finding future employment or makes looking for future employment more difficult than it ought to be.  In those situations, says the Supreme Court, the employee would be entitled to seek punitive damages. 

So, that means firing an employee for refusing to commit an illegal act is not in itself enough to justify punishment.  The Supreme Court is saying there must be something more.  For example, in the Martinez case, Louis Martinez drove a truck between San Antonio, Austin, Dallas and Houston everyday for Safeshred.  Prior to each haul, he was required to conduct pre-inspections of his truck.  He consistently discovered safety violations of his vehicle.  But, he was always told to drive the truck anyway.  On one trip, he was cited by DPS for improperly secured cargo – because the straps were worn or cut.  DPS told him not to drive the truck again.  Mr. Martinez explained what happened and showed the citation to Safeshred.  But, again he was told to drive.  Finally, prior to a fourth trip with the defective truck, the driver objected again to driving with an unsafe load.  Mr. Martinez was told to drive the truck or go home.  He went home. 

The Supreme Court found this evidence of disregard for public safety by Safeshred was not enough. Title VII discrimination cases would require some evidence of malice or "reckless indifference" to the law.   I would think Safeshred’s repeated indifference to public safety would be enough to justify punitive damages.  A jury clearly thought so. 

Louis Martinez filed suit.  The jury found for the truck driver and awarded him $7,569 in lost wags; $10,000 in mental anguish; and $250,000 in punitive damages.  The trial judge reduced the $250,000 to $200,000 due to caps on such damages.  The court of appeals reversed the mental anguish finding. 

Due to this Texas Supreme Court decision, the $200,000 is removed from the verdict.  It is as if the $200,000 was never awarded.  A company that committed some dangerous acts, putting motorists in some peril on the highway at least three times will in the end, pay no more that $7,569.  

The facts are dramatic: a woman is fired after she donates a kidney for her boss.  But, the situation also describes pretty well how an employment relationship deteriorates.  Debbie Stevens, 47 and a mother of two, worked for Atlantic Automotive Group, a large dealership group in New York.  Her boss, Jackie Brucia, 61, is a Controller for the Group.  Ms. Stevens donated her kidney, so that Ms. Brucia could move up higher on the donee list.  Ms. Brucia got her kidney, thanks to Ms. Stevens.

Ms. Stevens went through the surgery in August, 2011.  The doctors hit a nerve in her leg, causing complications.  She suffered discomfort and digestive problems..  Ms. Stevens returned to work four weeks later.  At that time, Ms. Brucia started harassing Ms. Stevens.  The boss accused Ms. Stevens of things she did not do.  The supervisor became angry when Ms. Stevens took sick leave three days after her return.  See News Net5 report.  Ms. Brucia accused the employee of being an "actress" apparently regarding her pain.  She screamed at her with some frequency. 

Ms. Stevens was then demoted and forced to work at a dealership 50 miles away.  Ms. Stevens hired lawyers who sent a letter to Atlantic Automotive Group.  She was fired days later.  See ABC News report. 

And, that is how it often goes.  The employee misses substantial time, then misses more work and the employer over-reacts. 

Dan Schwartz pens an interesitng post at Connecticut Employment Law Blog.  He notes that an employer controls the discipline process.  The employer decides when or whether to terminate an employee.  But, the employer has no control over what lawyer the employee hires.  Dan suggests good questions regarding the employee’s lawyer: does the lawyer typically accept good cases, or does he accept weaker cases and then puff them up?  Does s/he accept cases on pure contingency, or some blended rate, suggesting less than a winner-take-all strategy?  Does the plaintiff attorney have a reputation for accepting a quick settlement?  These are all valid questions that can affect whether the lawsuit is long and extended or relatively quick and painless. 

Speaking as a plaintiff lawyer (mostly), I can say Dan’s questions are pertinent.  Some plaintiff lawyers are more strident than others.  Personalities do matter.  Some do accept accept weaker cases.  Some (very few) are paid by the hour.  Some are paid on a pure contingency basis.  And, some do a combination of the two forms of payment.  

What questions should the employee ask about the employer’s lawyer?  Does the defense lawyer drag out the discovery process, so as to bill every last drop of billable hours from the employer?  Does the defense lawyer have a reputation for recognizing valid cases and offering reasonable settlement value prior to a summary judgment motion?  Does the defense lawyer accept that some discrimination claims have merit?   Surprisingly, some defense lawyers do not believe there are claims with merit.  That makes a lawsuit extremely difficult.  Every small request can lead to unnecessary friction. 

The lawsuit process will last at least a year.  Two years is more likely.  The fundamental component of damages is lost pay.  So, an employer or an employer’s lawyer who settles early will pay less.  Lost pay early in a lawsuit is a manageable number.  But, as trial comes closer and the months pass, lost pay increases.  The bigger the amount of lost pay, the harder it is to settle a case.  I have known several defense lawyers who will offer reasonable settlement amounts without ever filing a motion for summary judgment.  That makes sense.  Why devote time to a case that will probably lose for them?  It makes sense to settle an employment case sooner than later.  

Yet, far too many defense lawyers drag out a case, squeezing out every possible billable hour until the bitter end.  Worse in my opinion are the few defense lawyers who believe all or most discrimination claims are weak or frivolous.  Yes, as Dan says, in the law business, reputations do matter. 

The Texas jobless rate fell again for the seventh month in a row.  The rate now stands at 7%.  The San Antonio jobless rate also fell to 6.7%.  See San Antonio Express News report.  Of course, the rate fell due to increased hiring in the hotel and restaurant sectors, a low wage sector.  And, many people still remain unemployed, but at this point, any improvement is good. 

Last week, I commented about an NLRB Board member who provided confidential information to a law firm.  See my prior post.  Little did I know then that the "law firm" receiving this very privileged information was Peter Schaumber.  Mr. Schaumber advises Mitt Romney on labor issues and the NLRB.  Candidate Romney’s website includes an essay by Mr. Schaumber saying the governor will pursue "flexible" and "cooperative"  policies on labor.   See Workplace Prof blog.  I hope he does not mean so cooperative that sharing secret information will become the norm….

One San Fransisco lawyer’s response to a daylight mugging was to simply follow his thieves.  David Newdorf, a former marathon runner, was walking in downtown San Francisco talking on his cellphone, when one teenager grabbed him in a headlock.  An accomplice then grabbed Mr. Newdorf’s cell phone out of his hand.  As Mr. Newdorf noted, they grabbed the two year old Motorola, but not the iPad 2 in his other hand.  The thives ran off.  Mr. Newdorf followed.  They tried to lose him but could not.  The chase ended when one thief circled a park bench with Mr. Newdorf circling around.  The teen eventually handed back the cell phone.  Mr. Newdorf responded by snapping pictures of the now three thieves.  See Ginny Larae’s blog post with pictures.  

He continued to follow the thieves and phone in updates to the the police.  At some point, the largest of the bunch threatened the lawyer, "stop following my homies or I’ll f— you up."  Undeterred, Mr. Newdorf continued to update the police until all three were caught.  The lawyer identified the purported thieves, and even suggested particular criminal defense lawyers for the them.  

They were fired for wearing orange shirts to work.  I previously wrote about that here.  Now, they have filed a complaint with the National Labor Relations Board.  See ABA Bar Journal report.  They say they wore the shirts simply to show they were part of the same group when they went out for drinks after work.  But, management thought the orange shirts were some form of protest.  If so, then, yes their actions would be protected by the National Labor Relations Act.  Employees can protest management actions.  

The Maryland legislature has passed a bill preventing employers from requiring Facebook login information of employees.  See Huffington post.  It was a Maryland employer who attracted attention when it requested login information from some employees.  See my prior post about this topic.  If the Maryland governor signs the bill, then it will become law in that state.