I often tell clients or potential clients that in an at-will state, like Texas, your employer can fire you for anything.  They can, for example, fire because you wear a blue shirt to work.  Well, the law firm of Elizabeth R. Wellborn, P.A. in Ft. Lauderdale did just that . . . almost.  They fired 14 employees for wearing orange shirts to work.  See Ft. Lauderdale Sun-Sentinel report.  

According to four workers, they were wearing orange on Fridays simply because they would go to happy hour after work and wanted to easily find each other.  But, an executive called 14 workers into a conference room last Friday and said he understood they were wearing orange as part of some protest.  The executive asked if anyone had an innocent reason for wearing orange.  A worker then mentioned the happy hour plan.  The executive conferred outside with other managers.  He came back in the room and said they were all fired. 

Later, one woman complained she was a single mom with four kids at home and she just got fired for wearing orange to work. Other workers were quoted as saying they wore the orange for the happy hour.  They were not aware of any protest.  There was no company policy regarding orange. The workers were not issued any warnings before the firing about wearing orange.  

It is ironic, because if the employees were wearing orange as some sort of protest, then their conduct might be covered by the National Labor Relations Act which allows workers to discuss conditions at work.  But, regardless of their motivation, I think the law firm of Elizabeth R. Wellborn, P.A. is not a happy place to work. 

 

 2LT Clovis Ray was killed in Afghanistan recently.  He grew up in Three Rivers, but here in San Antonio,  He joined the US Army at the relatively late age of 32 after many years as an investment banker.  He worked for Wells Fargo and Wachovia banks here in San Antonio before enlisting and going through Officer Candidate School.  He served in Afghanistan with the 25th Infantry Division. 

His father said he was the "best of the best."  I do not doubt it.  Anyone who would leave a well-paying job to enlist and go through OSC must have been an extraordinary person.  He left a wife and 5 year old son.  He was killed by an IED (roadside bomb) in Kunar Province.  He is also survived by his twin brother, Eddie.  2LT Ray and his brother played football for the high school in Three Rivers.  See San Antonio Express News story.  Everyone I knew who went through OCS were excellent officers.  

In a decision that makes little sense, the Texas Supreme Court has found that an employee can be forced to surrender his/her right to a jury trial.  The employee, Steven Valdez, was told he had to sign the jury waiver provision.  He was told that he would be fired if he did not sign it.  He had worked at Frank Kent Cadillac for 28 years.  He had resisted signing the jury waiver earlier.  But, management told him he had to sign.  See decision in In Re Frank Kent Motor Co. 

About a year later, Mr. Valdez was laid off.  He filed suit alleging age discrimination and requested a trial by jury.  The employer moved to strike the jury demand.  The employee responded by arguing the waiver was not "knowing, voluntary and intelligent," a legal standard.  

In a strained decision, the court finds that the employee could have quit to avoid signing the jury waiver.  The court applied contract principles to state that it is not coercion to exercise some legal right held by one of the parties.  The employer has the right to fire the employee.  Therefore, this pressure does not rise to the level of legal coercion.  The court is essentially saying that since the employer has the legal right to fire someone, they can use that as a negotiating tool.  As a negotiating technique, it cannot rise to the level of "legal coercion."

This logic fails on many levels.  How many employees would not feel coerced to sign something when their boss says they have to sign it?  This decision engages in hair splitting that avoids the reality most of us face.  We cannot quit our jobs willy nilly.  We are tremendously disinclined to go out looking for a new job – especially someone in his 50’s.  I assume an employee with 28 years experience would be in his 50’s. 

More importantly, it is simply poor legal reasoning.  Contract principles presume both parties enjoy a level playing field.  Most parties to any agreement are on equal footing when they negotiate a deal.  Not so employers and employees.  The employer has the right to fire.  Yes, the employee can quit anytime.  But, very few employee can afford to quit on short notice.  But, most employers can afford to issue directives on short notice.  Many employers can afford to threaten an employee with termination on short notice.  This decision is wrong on many levels.  But, it is now the law of the land in Texas. 

Employers are more and more reaping the "benefits" of Facebook.  They are asking applcants for their FB passwords or for the opportunity to review the applicant’s Facebook page.  A corrections officer was required to provide his Facebook login information so his superiors could look at his Facebook page as part of his recertification process.  The interviewer then read through his page and the pages of his friends and family.  See MSN report.  He complained about it.  But, the Maryland Department of Corrections still asks applicants to voluntarily log onto their Facebook page and let the interviewer look at their pages.  Most officers agree to do so because they want to make a good impression.

Student athletes are required by many universities to friend their coaches so the coaches can monitor their FB pages.  

A business, Social Intelligence, exists solely to scrape the internet looking for everything said by potential job applicants on the internet for the previous seven years.  It assembles a file on the applicants with positive and negative information – looking specifically for racist comments, references to drugs, sexually explicit photos, flagrant displays of weapons or bombs and clearly identifiable violent activity.  See CBS News advice column.  Suzanne Lucas, the author of the column and also the publisher of the very helpful blog, Evil HR Lady, warns us all to understand that nothing posted on the internet is ever truly private.  Just be careful, she warns.  Do not post pictures of that wild party at the beach….

Picking a jury is never easy.  It is even harder when one potential juror does not know what she believes until her pastor tells her.  A woman was picked for the jury in a murder trial.  There would have been extensive questioning prior to the jury being finalized.  For a murder trial, I would expect jury questioning and selecting to last a day. 

Later that day, she spoke with her minister.  The minister told her she could not judge others.  She was new to the church and wanted to follow the minister’s guidance.  So, the next day she explained why she could not serve.  Her religious beliefs would not allow her to serve.  The judge, Pat Priest, a long-time Bexar County judge, expressed his frustration.  "For God’s sake, next time you’re on jury duty, find out what you believe before you’re questioned!"  

That was difficult position for the judge.  Proceeding without all 12 jurors could lead to a motion for mistrial.  The judge decided to go forward without a twelfth juror.  But, that decision involves some risk.  See San Antonio Express News report.  

Two researchers studied employee morale via work journals from 238 professionals.  A Harvard business professor and a Harvard psychologist collaborated to find four ways managers can ruin morale:

  1. Stall the worker’s most meaningful projects.  Such as one manager who routinely moved people on and off projects apparently at his whim.
  2. Block progress on goals.  Such as one manager who issued conflicting goals and allowed no ability to resolve the conflicts.
  3.  Blame bad morale on personality conflicts or the poor work ethic of the workers. 
  4. Retaliate when someone brings up problems.  As one chief operating officer said in responding to claims of bad morale, "We do not have low morale here.  Anyone who thinks so, there is a bus waiting outside to take you wherever you want to work." 

See ABA Bar Journal report. 

Yep.  That is why the Army requires a survey every year in every unit regarding many issues impacting morale.  The private sector could learn some things from the armed services. 

The Army is also very good at teaching leaders to recognize achievement.  A little recognition goes a long way. 

Back when I was in Iraq in 2005-06, I heard a story about a soldier in Kirkuk who walked off the premises of FOB Warhorse.  He just went outside the wire unarmed like he was back home and wanted some ice cream.  Leaving the base itself violated all sorts of orders.  But, more importantly, the chances of surviving a trip outside the wire alone were slim and none.   My colleagues and I viewed the story as a soldier "freaking out" over the pressure of being far from home, confined to the base and simply feeling overwhelmed by the pressure of living and fighting in a war zone.  

So, when I read about a soldier in Afghanistan leaving his base and killing Afghan women and children, I expect the pressure of the war zone and more are behind this heinous act.  See CBS news report.  Living and working in a war zone presents so much pressure.  Everything is vital, everything is important.  Nothing is trivial.  Nothing is unimportant.  On top of that pressure, you add the extreme sense of loss when one of your buddies is killed, it can all just become too much for a person to bear.  Nothing excuses taking innocent life.  I would like to hear more about what lead up to this incident.  But, I know it can be like a pressure cooker.  You have to let some of the steam escape before it explodes. 

Of course, this act is the very opposite of what it takes to defeat an insurgency.  An occupation power succeeds against an insurgency only if it can show that it is more interested in the well-being of the local citizenry than the insurgents.  This soldier, other than killing many innocents, has handed an important victory to the Taliban.  

A Bexar County jury awarded a former employee of San Antonio Water Systems $1.6 million in state district court.  The former SAWS employee alleged she had been fired after she reprimanded the Vice-President for Communications because he asked a female employee to lunch.  See San Antonio Express News report.  Debra Nicholas had been special assistant to the former CEO, David Chardavoyne when she reproved the VP for asking out a junior employee.  Mr. Chardavoyne left SAWS.  Ms. Nicholas was then moved under the same VP for Commuinication.  Not surprisingly, her position was eliminated soon afterward.  She filed a lawsuit alleging she was fired for opposing discriminatory practices. 

The water utility claimed Ms. Nicholas’ position was eliminated as part of a reorganization.  But, she was the only employee so "reorganized." 

The jury award appears to be in excess of the caps on compensatory and punitive damages.  The highest amount allowed is no more than $500,000.  So, I am sure the jury award will be reduced by the judge.  The lawyer for the plaitiff is Alex Katzman.  

Mr.Katzman won another large judgment against City Public Service in 2008.  That jury award was overturned in a poor decision by San Antonio’s Fourth Court of Appeals.  See decision.  The court found that there was insufficient evidence to support the jury award.  In reviewing jury verdicts, the appellate court is supposed to look at the evidence in the light most favorable to the verdict.  The appellate court is supposed to defer to the jury verdict.  But, the opinion weighs some evidence and draws its own credibility determinations.  So, yes, a worker can win a discrimination case and yet lose it entirely on appeal. 

 

 Crazy things happen in trials.  One recent jury in Bexar County apparently took some evidence home.  One of the jurors pocketed a picture of a boy in the hospital – who was the subject of an abuse trial.  See San Antonio Express News report.  A couple of the jurors took pictures home – perhaps as souvenirs?  There will be an investigation.  But, I am sure, so long as the pictures are returned, all will be forgiven.

A little strange.  Like I tell my clients, when you rely on a jury to decide your case, you are essentially throwing the dice at Law Vegas.  You just never know what you will get…….

 

I first wrote about this case here.  An arbitrator failed to disclose his relationship with the attorney for one of the parties.  The arbitrator, Robert Faulkner, a former US Magistrate, had long standing ties with the lawyer for one of the parties, Brett Johnson.  The arbitration went well for Mr. Johnson of Fish and Richardson in Dallas.  Arbitrator Faulkner awarded $22 million to Mr. Johnson’s client and $6 million in attorney fees.  

The Fifth Court of Appeals in Dallas overturned the award last June, finding that Mr. Faulkner failed to disclose his prior relationship to Mr. Johnson and that Mr. Johnson deliberately concealed his prior relationship to the former Magistrate.  The court noted that at the outset of the arbitration hearing, both Faulkner and Johnson pretended to be meeting each other for the first time. 

Now, the losers in the arbitration have sued Fish and Richardson, Brett Johnson and the former opposing party for fraud.  See Texas Lawyer report.  The suit appears to be based on a Rule 11 agreement entered into by the parties early in the arbitration process.  In the Rule 11 agreement, Brett Johnson’s client, Jonathan Cooke agreed to arbitrate his dispute and to take the dispute to a neutral arbitrator with JAMS.  A Rule 11 agreement simply describes an agreement between opposing parties which is filed or capable of being filed withe the district clerk. 

As I have stated before, the problem with arbitration is the web of connections between all lawyers and law firms.  In the arbitration world, those connections are not apparent.  If the matter remained in a court of law, where it belongs, there is much greater transparency.  How many more connections are out there of which consumers and employees have no knowledge?  Yet, those same consumers and employees are forced into arbitrations everyday.  Arbitration is premised on the arbitrator and the parties disclosing all prior contacts.  But, if they choose not to disclose, who will know otherwise?