A survey of likely voters in 2010 shows that the American public is generally opposed to mandatory arbitration clauses found in employment and consumer situations.  59% oppose forced arbitration clauses found in the fine print of employment and consumer agreements.  59% of likely voters support the Arbitration Fairness Act, a proposal which would prevent these arbitration clauses.  Opposition to such clauses is found regardless of party affiliation or gender.  Voters who identify themselves as Republicans opposed these clauses 59%, while Independents opposed such clauses 59%.  60% os surveyed Democrats opposed arbitration clauses. 

The survey also indicated that some three-fourths of Americans believe they can sue an employer if necessary  the presence of these forced arbitration clauses.  

The survey was taken by Lake Research Partners and was commissioned by the Employee Rights Advocacy Institute, an affiliate of National Employment Lawyers Association.  

Retaliatory lawsuits are rarely a good idea.  Employers can feel very offended when an employee files a lawsuit. The employment relationship can be like family.  So, sure, many employers feel some betrayal when they are sued.  But, to respond with a counter-lawsuit almost never works. 

In one case, the employer responded to a discrimination lawsuit by employees with a counter-suit for defamation. The timing of the counter-suit seemed suspicious enough, but the employer also asked for $1 million in damages.  The court eventually found the counter-suit to be frivolous and sanctioned the employer to pay attorney’s fees for the employee.  Not only did the employer lose its supposed counter-suit, but he cast substantial doubt on whatever defenses he had to the original discrimination lawsuit by his employees.  

So, if you, the employer counter-sue and lose, you could incur additional tens of thousands of attorney’s fees owed to the plaintiff – in addition to the tens of thousands you owe to your own lawyer.  Not a good business decision, after all. 

Well, it had to happen sooner or later.  A parent has filed suit against some middle school boys regarding things they said about the man’s young daughter.  The father, a Houston area lawyer, sued the boys over a video posted by the boys regarding his daugther.  See Texas Lawyer report.  The father, acting as "next friend" to his daughter, sued the Houston area boys for libel.   The suit claims the boys claimed untrue facts, and made suggestive, derogatory comments regarding his daughter.  Two of the boys filed pro se answers via relatives denying liability. 

Facebook has become a way of life for many middle schoolers.  This may be the first of many such lawsuits. 

Employee handbooks are not binding on a Texas employer.  The typical employee handbook says the employer will not fire someone until that person has been verbally warned, and then warned in writing a few times.  Or, the handbook may say that an employee will not be demoted or fired without a good reason.  Once upon a time, such handbooks were found to be binding upon the employer.  Employers soon learned, however, that they could avoid the binding nature entirely if they simply state in the handbook that it is not binding and that the policies can be changed anytime. 

So, yes, these days, almost every employer, probably 99.9% now state somewhere in their handbook that it is not binding.  So, yes, an eleven year employee can now be fired with no warning simply because a new manager wants to downsize the office. 

I have previously talked about employee handbooks here and here. 

Bunnatine "Bunny" Greenhouse has settled her lawsuit against the US Army Corps of Engineers.  Bunny Greenhouse blew the whistle on contract violations by KBR for a no-bid contract.  The company was essentially allowed to prepare its own cost projections as a basis for securing a no-bid, no-compete two year contract for work in Iraq.  Ms. Greenhouse complained about it and suffered retaliation for months and years.  She suffered worsening performance evaluations.  The Corps refused to recognize her achievements.  At one point, a co-worker even set a trip cord for her causing her to trip and fall at work.  See Washington Post report.  

Initially, Ms. Greenhouse objected within the Corps.  She then took her concerns to Congress when the Corps failed to respond.  After speaking in Congress, she was kicked out of the Senior Executive Service and stripped of her Top Secret clearance.   Before all this started, she had been the top action officer for all Corps contracts.  Ms. Greenhouse filed suit.  See National Whistleblowers Center report. 

Ms. Greenhouse agreed to a $970,000 settlement including lost wages, compensatory damages (emotional suffering) and attorney’s fees. 

In the law business, you really do see it all, eventually.  The City of Dallas sought an order closing a church.  The "church" apparently practiced swinging.  A church known as the Playground was closed because its outreach consisted of hosting swingers’ parties.  See Dallas Morning News report.  The owner, Wyakie Glenn Hudson claims to be an ordained minister.  Judge Molberg granted the City’s request. He closed the Playground one week after another judge refused to close a dance hall owned by the same man known as the "Darkside."  That suit is apparently still pending. 

After Judge Molberg granted the order closing the Playground, "Pastor" Hudson said that city officials did not agree with his outreach. 

The Dallas City Attorney said detectives found no evidence of religious use when they inspected the facility.  They did find topless dancers and porn movies playing on flat-screen TV’s.  Access to the Playground is free for women but $50 for men.  For an additional fee, "church-goers" have access to beds, condoms, and more porn videos in a separate room.  

The church has a certificate of occupancy as a church.  I presume that certificate may soon be revoked…..

I forget where I first heard this sage advice: do not mess with teachers in the classroom, judges in the courtroom or police in the streets.  Now I am a lawyer and know all too well, do not disrespect judges in the courtroom.  It only leads to trouble.  One Houston lawyer with a large law firm, Littler Mendelson, was reminded of this after he filed suit over alleged civil rights violations.  His client claimed the civil rights of her daughter were violated  when a client tried to become a high school cheerleader.  

The lawsuit was based on 42 USC Sec. 1983, a civil rights statute.  The suit was dismissed.  The plaintiff appealed.  The plaintiff’s lawyer said unkind things about the lower court decision written by a Magistrate Judge.  The court of appeals in a decision written by Judge Jerry Smith responded: 

“Reduced to its essentials, this is nothing more than a dispute, fueled by a disgruntled cheerleader mom, over whether her daughter should have made the squad. It is a petty squabble, masquerading as a civil rights matter, that has no place in federal court or any other court.”  He described the theory behind the suit as "flimsy."  See ABA Bar Journal report. 

It is very rare for an appellate judge to start out so critical.  But, he did not end with that.  He mentioned later in a footnote:

“Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word ‘principals’ should have been “principles.’ The word ‘vacatur’ is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (‘incompetence’) and a plural verb (‘are’).”

That is as personal an attack as occurs at the appellate level.  Judge Smith was clearly perturbed.  Magistrate Judges are not appointed by the President.  Appointed federal judges are known as "Article III" judges.  Magistrate Judges are hired by the appointed Article III judges and essentially serve as assistants to the appointed judges.  The Magistrate Judges typically hear motions and some trials.  They serve for ten years and are generally well-respected jurists in their own right. 

The judge was criticising the statement by the Littler Mendelson lawyer about the Magistrate Judge.  The lawyer had said that because he is not an Article III judge, his "incompetence in applying general principals [sic] of law are [sic] extraordinary."  Judge Smith said this sentence was unlcear, but it seemed to be making an unjustified attack on the magistrate judge.   The plaintiff’s lawyer attacked the Magistrate Judge.  Judge Smith responded. 

I tell all my clients and anyone else interested that going to court is much like a drama presentation in a theater, everything we do is watched, scrutinized and analyzed.  All trial lawyers know this.  but, on this day, I think this one lawyer from one mega firm forgot this important lesson.  

 

A soldier from San Antonio was killed in Iraq.  SGT Steven Talamantez was killed by indirect fire (mortar) in Maysan province of Iraq, a normally less violent province.  He was assigned to the 1st Cavalary Division out of Ft. Hood, Texas.  A graduate of McCollum High School in 1995, he worked in construction before joining the Army in 2008.  He left a wife and two children.  He said he loved the soldiers with whom he served.  See San Antonio Express News report. 

As a lawyer, I often tell my non-lawyer friends we have two duties as citizens: to vote and to serve on a jury.  Surely, if nothing else, our Republic was founded on the principle of an educated electorate that casts votes.  But, if we ask for time off from our job to vote, we can be fired.  See the case discussed by Russ Cawyer here.  A three year employee asked to leave early to vote in the Presidential election in 2008 and was refused.  She then left 15 minutes early and was fired.  

In the decision, the Dallas court of appeals declined to create any new exceptions to the state at-will doctrine.  So, the employee lost her appeal.  In looking at these facts, one could argue that she was not fired for voting, but because she deliberately violated instructions from her supervisor.  So, the facts are cloudy.  But, in the end, we are "at-will" employees.  We can be fired for taking time off to go vote. 

Law school professor, David Yamada, wrote a blog post saying essentially that many employer side lawyers in employment cases are "attack dogs" (my paraphrase) because many employers are "attack dogs" themselves.  Such abusive employers tend to seek out abusive lawyers, he writes.  See David Yamada’s blog post.  Law school profs are in a position to observe and remain neutral.   His view regarding "Rambo" lawyers is:

"They distort, intimidate, and delay.  They take a worker’s minor faults or mistakes and elevate them into major deficiencies.  They help their clients sweep horrible behaviors and actions under the rug.  They use legal process to deplete, torture, and humiliate everyday workers."  He argues that some employers continue the abuse into the lawsuit that went on during the employment relationship. 

Sure, some management lawyers do all those things.  It is like a second round of the same abuse for many employees involved in an an employment lawsuit.  But, another law prof, Workplace Prof counters saying that plaintiff side lawyers can be just as bad.  It is true that employer side lawyers will typically have more resources and the employer starts from a more privileged position.  More effective lawyers, he notes, can see the case from both sides an are problem-solvers, rather than Rambo litigators.  

In my experience, representing mostly employees, some employer side lawyers are very civil and work toward resolution, rather than fighting just for spite.  And, such lawyers do much to resolve a case.  These lawyers are the ones who make the system work more effectively.  But, I know there are some plaintiff side employment lawyers who makes cases worse and who fight, it often seems, just to fight.  

I find it hard to believe defense lawyers are any worse than some plaintiff lawyers.  But, since they often have the greater resources, it may seem worse to employees.  They get abused as employees and again later as litigants.