It has been ten years since 9/11.  That was a huge day for millions of Americans.  9/11 lead directly or indirectly to the two wars in Iraq and Afghanistan.  For those of us in the military or formerly in the military, 9/11 marks the starting point of multiple deployments, moves, new jobs, lives changed, and more. Thousands of service members have been physically and mentally wounded.  The San Antonio Express News describes some of the wounded warriors here.  

When I was in Iraq in 2005, we served with soldiers from the 42d Infantry Division, New York National Guard.  Many of those soldiers had been on active duty since 9/11.  They were activated immediately after 9/11 and stayed on active duty through 2005.  They secured New York City from possible additional attack and they combed the rooftops of the city for fragments of persons and belongings from the twin towers attack.  The 42d understood the 9/11 attacks in ways the rest of us never will. 

The 42d has a history. Their division patch or emblem is a rainbow, worn on the left sleeve.   They lost half their division in World War I.  The story goes that the Division chief of staff at the time, Douglas MacArthur, future WW II general, cut the patch in half, to commemorate the lost half.  To this day, the 42d ID wears half a rainbow on its left shoulder.  In 2005, they had more reason to remember.  So, their slogan in 2005 was "Rainbow, never forget."  

Slogans in the military are officially something a soldier says to another when rendering a salute.  It becomes a greeting, a closure to meetings, a summary of what the military unit believes in.  Over time, I came to appreciate the meaning of the 42d ID slogan more and more. 

So, on this day, let us join the 42d in saying, "Rainbow, never forget." 

In a recent decision, the US Sixth Circuit Court of Appeals found that an arbitration policy referenced in an employee handbook was not binding on the employee.  In Hergenreder v. Bickford Senior Living Group, LLC, No. 10-1474 (6th Cir. 6/8/2011), the employee was a nurse who suffered from cancer shortly after starting to work for Bickford.  She attempted to sue after she was terminated.  The employer claimed the arbitration policy applied and the federal district court agreed.  But, now the appellate court has reversed and has allowed Ms. Hergenreder’s case to proceed. See decision.  

The purported arbitration clause was contained in a dispute resolution clause.  In one brief sentence, the employee handbook said there was a dispute resolution clause and the employee should look at it sometime.  The employee handbook itself never mentioned arbitration.  The dispute resolution policy did indeed include an arbitration agreement.  The policy stated that agreement to the dispute resolution clause was a condition of employment.  But, found the Sixth Circuit, the employee nowhere acknowledged that she had been notified of the contents of the dispute resolution clause.  The employer could not show that the employee was aware of the policy or that she had agreed to it in any way. 

And, of course, like many employee handbooks, it contained language stating that the handbook was not contractual.  As Workplace Prof points out, many employers want the contractual benefits of a binding arbitration agreement.  The handbook appeals to employees because it provides a predictable, understandable framework for their employment relationship.  But, a binding employee handbook would present many problems for an employer.  So, they seek to avoid any contractual aspects.  See Workplace Prof blog.  It is hard to have your cake and eat it too….

 Written counseling is important.  I have advised and represented small business owners.  The best protection from a false claim is written counseling made at the time of the alleged infraction.  Even the most basic workplace will have scratch paper somewhere.  You as a manager need to include the basics:  what the employee did wrong, when s/he did it, and what you as the manager expect in the future.  This written documentation will help tremendously when/if the employee later seeks unemployment benefits or files suit for alleged discrimination.  

A worker at Ashley Furniture was killed here in San Antonio in May, 2011 by a co-worker.  Now, the family of Aileen Harbridge has sued her former employer.  See San Antonio Express News report.  The suit claims that the killer, Jose Martinez used a pistol he borrowed from a store manager.  There had been a history of violence with Mr. Martinez.  He had, says the plaintiffs, been moved from store to store due to problems with his behavior.  Ms. Harbridge was killed at the DeZavala store.  

The deceased worker had even quit for a time due to the conflict with Mr. Martinez.  She returned only when managers assured her she would be safe.  Obviously, management was wrong. 

This is a good time to discuss what an employer can do to prevent wrokplace violence.  Connecticut Employment Blog suggests a few steps:

  • Take each incident of potential violence or anger seriously
  • Do not hesitate to contact the police
  • Provide training to employees, so they can understand the warning signs of work place violence
  • Maintain an "open door" – listen to your employees when they complain about possible incidents or strange behavior

Employers should also consider:

  • Health and safety committee meetings with employee participation
  • Consider using metal detectors to prevent the entry of weapons
  • Place mirrors at key hallway intersections
  • Provide information on multicultural diversity and racial sensitivity
  • Draft a violent incident response plan

OSHA has some helpful information on its website.  But, as Dan Schwartz mentions in a later blog post, an employer can only do so much to prevent a deranged or evil person rom committing evil acts.  See August, 2010 blog post. 

 

The EEOC has been hit with another sanction of attorney’s fees.  A court assessed $2.6 million in attorney’s fees against the EEOC due to a lawsuit they filed which they lost.  See Workplace Prof blog post.  The EEOC had sought class action status in EEOC v. Cintas and lost.  Because the EEOC did not attempt conciliation prior to suit, the federal court dismissed the action.  See the court decision.  The court found that conciliation was required as part of the requirement to exhaust administrative remedies.  

Title VII of the Civil Rights Act of 1964 has requires that when the EEOC finds "reasonable cause" to believe that discrimination has occurred, then the EEOC must attempt conciliation or settlement.  This requirement was an early attempt at lawsuit reform.  It requires that individuals bringing suit first attempt all non-lawsuit remedies first.  

In EEOC v. Cintas, the EEOC had been denied class action status.  It then sought a "pattern and practice" type allegation on behalf of thirteen individual women and was again re-buffed.  Responding to the employer’s claim that it had not attempted conciliation, the EEOC argued that it did attempt conciliation against Cintas previously as part of its class action suit – which later failed. But, that conciliation apparently did not include these thirteen individual women.  So, yes, the EEOC attempted conciliation on behalf of a class of women, but apparently did not attempt conciliation on behalf of these thirteen ultimate plaintiffs.  This is an important distinction.  But, does this distinction make a difference?  Would Cintas have been any more receptive to conciliation if the plaintiffs were thirteen individual women, instead of a class of women?

As Workplace Prof points out, this decision and others like it are tying the EEOC’s hands in regard to pursuing class actions or multiple plaintiff lawsuits.  The EEOC lacks the resources to represent individual plaintiffs.  They simply do not have enough lawyers.  So, they have been trying to focus on larger lawsuits, such as class action lawsuits and "pattern and practice" lawsuits.  This federal court decision will make it more difficult for the EEOC to focus on systemic cases.  We taxpayers will get less bang for our buck from this important federal agency.  And, Cintas skates after having been found reasonably likely to have discriminated against some women. 

Residents of a north Bexar County community have accused a deputy Sheriff of racial profiling.  See San Antonio Express News report.  Some residents of Timberwood Park, near Bulverde, and local activists claim that Deputy Patrick Plate has been targeting Hispanics and pulling them over for traffic stops and calling US Immigration and Customs Enforcement (ICE) when the Hispanics could not prove citizenship.  The deputy has been reassigned pending the investigation.  The Sheriff’s Office explained that immigration is not one of their responsibilities. 

The activists said reassigning the deputy to another area is not enough.  He should be off the streets, said one.  The residents said the deputy has apparently been targeting Hispanics driving old, beat-up pickup trucks.  Miguel Perez said he saw Deputy Plate peering into the windows of trucks stopped at a traffic light.  One of the trucks was driven by a co-worker of Mr. Perez.  Miguel Perez talked to the deputy about this and the deputy said the truck had malfunctioning lights.  Mr. Perez denies the lights were malfunctioning. 

In the most recent state legislative session, Gov. Perry tried to pass legislation making it easier for local law enforcement officers to enforce immigration laws.  His attempts, however, failed. 

The Occupational Health & Safety Act requires employers to provide a safe working environment for all workers.  The Occupational Health & Safety Administration (OSHA) protects some workers, but not all.  There are no protections for repetitive stress injuries or ergonomic requirements.  See "Can my boss do that?"  There are simply few rules for office workers and no rules regarding these more recent sorts of injuries.  The OSHA rules still focus on the traditional physical injuries in an industrial setting. 

If you are covered by work rules, you should see a poster on the wall.  OSHA rules apply to all private sector workers.  You can go the OSHA website to see specific safety rules for specific industries.  

The OSH statute prohibits reprisal for reporting safety violations.  The deadline to report reprisal is 30 days.  See OSHA link discussing reprisal.  That is an exceedingly short deadline.  Many workers will not become aware of the reprisal for days or weeks after it occurs.  OSHA rules continue to be a hot button political issue and are not likely to change soon. 

Facebook has become a big part of the lives of many Americans in a very short amount of time.  One photographer recently was hired to take senior pictures at a high school.  The photographer came across a FB page poking fun at some girls.  Someone had created a fictitious name just so they could post hurtful comments about other students.  

Jen McKen decided that she would not take photos of the girls who were using FB to bully other girls.  She emailed them the night before, included a copy of their comments and said she would not take their pictures.  See Jen Mcken’s blog about her photo shoot.  She returned their deposits. 

Good for her.  As she explains, she cannot know all the bullies in school.  But, if she knows someone is being a bully, she will not take their picture.  When last I checked, she had 375 comments on her blog post mostly all supporting her stand. 

I am told that Jen’s Facebook page has "blown up" from too much traffic.  Many people apparently support her. 

You know, you just cannot make this stuff up.  A disbarred lawyer was recently arrested for an outstanding warrant of felony fraud.  He was found with $12,000 in cash in his car and another $838,000 in cash in a rented storage room.  He had some guns with the $838K.  

But, that is normal for John B. Kennedy.  In 2004, he was arrested for practicing law without a license.  Then, his son found $1 million in cash crammed into a suitcase in the a closet at the elder Kennedy’s house.  See Houston Chronicle report.   In 2004, Mr. Kennedy had been disbarred by the Texas, Delaware and the District of Columbia bar associations.  His former wife speculated that he had accumulated the cash from agreeing to represent clients for cash and then just stashing it. 

I don’t get it. …  Am I the only lawyer who keeps his $838K in his tackle box? 

Surina Dixon was hired by Texas Southern University in Houston, Texas to coach women’s basketball.  She quit her job in Tennessee and moved to Texas with her husband in 2008.  She noticed soon after she arrived that the new men’s basketball coach was paid $148,000 while she was to be paid only $75,000.  She complained.  She said this violated Title IX.  TSU did not respond.  Then, she complained again and mentioned that this was discrimination.  See Houston Chronicle report. 

After only three months on the job, TSU fired her saying they wanted to move in a new direction.  She had signed a three year contract but was fired after only three months.  She sought damages equal to the value of her multiple year contract, and, i am sure, compensatory damages (emotional suffering) under Title VII.