A federal jury in Houston has returned a verdict against a former County Judge of $3.2 million.  James Blackstock, a former Brazoria County Court-at-Law Judge and former head of the Juvenile Probation Board was sued for sexual harassment by three female employees of the Juvenile Probation department.  The jury found the judge had created a hostile work environment and had physically assaulted one of the employees. 

The three women had complained the judge had hugged, groped, fondled, kissed them, and he had emailed them explicit photos.  In their lawsuit, they claimed the judge had preyed upon female employees for years with no repercussions.  Brazoria County and the Juvenile Board had previously settled with the plaintiffs for $135,000.  See Houston Chronicle report.  

The former judge had previously resigned his Board position after pleading no contest to charges of official oppression, a Class A misdemeanor. 

In my recent post, I talked about Jamie Leigh Jones losing her trial.  Ms. Jones became a hero to many when she successfully opposed and overturned the mandatory arbitration agreement she allegedly signed with KBR.  Since then, I now understand that Ms. Jones’ mother was called to testify and was cross-examined by the defense lawyers regarding Ms. Jones’ mental health history.  Apparently, the defense lawyers had hundreds of pages of Mr. Jones’ psychological history and were using it well against her.  

There is a risk in employment cases when we seek large psychological damages.  To justify large damages, we need mental health professional testimony and evidence.  To do that, the plaintiff employee must disclose her psychological history.  Her mental health history becomes relevant.  Since, the defense will want to introduce evidence of other things that cause emotional stress in the employee’s life other than her employment.  The employer may be entitled to introduce evidence regarding other matters that have caused the employee emotional distress.  That right may open the door to everything from family problems to drug problems to low self-esteem.  Of course, any drug problems, however ancient, may prejudice many juries. 

But, if the plaintiff limits her claim to "garden variety" emotional distress, then her mental health history is not discoverable, much less admissible.  So, yes, it is often better not to plead more than "garden variety" emotional distress damages.  Otherwise, we may open the door to our client’s entire history, a history which may be not be flattering and which may cause additional stress for our clients.  Many clients feel like they are being abused again during the litigation process. 

A woman claims she was fired from her job at a Houston, Texas title company because she refused to dye her gray hair and wear "younger, fancier" clothes and lots of jewelry.  See ABA Bar Journal report.  The CEO of the title company dismisses her claim, saying he has gray hair.  Bill Shaddock says he would hire a 150 year old person if he seemed "worthy."  

As Kathy Butler, a prominent employment lawyer in Houston, points out, there is at least one case finding that requiring women working at a casino to wear make-up does not violate Title VII.  Since, in that case, the employer could show a legitimate business purpose for requiring the make-up and that the requirement was not related to a person’s gender.  

 

 Jamie Leigh Jones, who claimed she was raped in Iraq when she served as a private contractor lost her case.  See news report.  She had sued her former employer, KBR.  A Houston jury rejected her claims of fraud and rape.  Ms. Jones acquired some fame when she testified in Congress opposing mandatory arbitration in so-called employment agreements.  She appealed her arbitration issue and eventually won the right to a jury trial.  I previously wrote about her case here.  

Arbitration is not popular with many people.  Part of the problem with arbitration is a lack of accountability.  There is no appeal from an award by an arbitrator.  There is often a lack of information about the arbitrator.  In a recent case, we see what goes on behind some arbitrations.  The Fifth Court of Appeals in Dallas vacated a $22 million dollar award by one JAMS arbitrator.  See decision on Karlseng v. Cooke, No. 05-09-01002-CV.  The decision focused on the social ties between the arbitrator and the lawyer for the winning party.  Robert Faulkner, the JAMS arbitrator and a former US Magistrate, had close ties to the lawyer, Brett Johnson.  The arbitration hearing lasted several days in 2007.  The arbitrator awarded $22 million in damages and another $6 million in attorney’s fees to the winning party.  The arbitral hearing concerned a partnership dispute. 

Karlseng, the losing party appealed the award to the trial judge, but was denied.  The Dallas Court of Appeals then overturned the lower court decision – finding that the ties were close between the former Magistrate and Mr. Johnson and those ties were not disclosed.   Of course, in an arbitration, all ties should be disclosed. 

In 2006, Johnson and Faulkner attended a Dallas Mavericks game, with Mr. Johnson paying some $1,200 for the tickets.  They ate dinner at an expensive restaurant to the tune of $428, again paid by Mr. Johnson.  In December, 2006, Mr. Johnson sent a $75 basket of wine to the Faulkners.  

Yet, at the start of the arbitration in 2007, Mr. Faulkner and Mr. Johnson acted as if they were meeting for the first time.  

Later, Mr. Faulkner said his wife opens the presents and he was not aware of the wine basket.  Mr. Faulkner said he forgot about the Mavericks game until reminded by his wife.  So says a report by Texas Lawyer.  

Arbitration is intended to represent an agreement between the parties to have their matter heard by an impartial third party.  It only works if the arbitrator discloses any potential biases.  It is a system based on contract.  If the arbitrator does not disclose all possible ties, the parties have no way of knowing.  The parties cannot make an intelligent choice in the absence of information. 

Arbitrations only work if the arbitrator discloses every possible bias.  Anyone who has purchased a new car, electronic device or who has worked for some 30% of the employers out there have knowingly or unknowingly agreed to mandatory arbitration.  A system based on arbitral disclosure will not work well for the average consumer, much less the average businessman involved in a partnership dispute. 

During the 1960’s many federal judges had to seek safety because they enforced constitutional law regarding integration in Southern states.  These Southern judges did not necessarily advocate integration.  Instead, they were simply fulfilling their duty to enforce the law as it had already been decided by a higher court. 

Our own Judge Fred Biery has received many threats since he issued an order prohibiting prayer at a Medina High School graduation.  See San Antonio Express News report.  US Marshalls have placed him on 24/7 protection.  

I find this all ironic since based on what I read in the Express News, it appears to me that Judge Biery complied with the law on prayer in schools and he actually advised the school district on how to make their prayers more in line with the law.  Mention your personal belief, without calling on others to believe as you do, he advised.  He also suggested they avoid the words "benediction" and "convocation."  The school district took his advice and they later succeeded when they appealed to the Fifth Circuit Court of Appeals. 

Judges very rarely issue legal advice.  Judge Biery was clearly trying to help the plaintiffs.  For that, he must fear for his safety.  That is an issue in Iraq.  The judges there too often bend to pressure from well placed persons regarding terrorists.  Don’t even mention Mexico and the state of their judiciary.  

We should be thankful for judges like Fred Biery.  I have no idea what Judge Biery’s theology is.  But, I am sure he simply felt he was enforcing the law as it had already been decided by a higher court.  That is his duty as a US District Judge. 

SPC4 Nicholas Hensley was injured two weeks ago when he stepped on an IED (improvised explosive device) in Afghanistan.  He died from his injuries.  He was on his fourth deployment.  A Judson High School graduate, SPC4 Hensley was married and father to three daughters.  He loved playingwith his children.  See San Antonio Express News report. 

Russ Cawyer posts about the coming demise of the so-called "no fault" leave policy, better described as fixed leave policies.  He notes that the EEOC has been aggressively pursuing companies who implement such policies.  Under these policies, once an employee has been out on leave for a certain length of time, the employee is terminated no matter the cause of the leave.  The problem with such policies is that they violate the requirement of the Americans with Disabilities Act for an individualized assessment of an employee’s need for leave.  I discussed these automatic leave policies previously here.  An employer maintains such policies at considerable risk.  They might work for Family Medical Leave Act or worker’s compensation reprisal cases, but they will not work for ADA claims.  

The EEOC held hearings on leave as an accommodation, a couple of weeks ago.  Public comments regarding leave as an accommodation may be sent to:  Commissionmeetingcomments@eeoc.gov.  I typically only hear about the issue when some employee faces an issue with his/her employer.  But, sure, many employees are getting short shrift from too many employers when the employee is out on prottracted leave.  There is strong caselaw saying that too many absences render an employee unable to perform a key function of every job: attendance.  This is a misleading characterization, but the point remains, employees need to attend work in some way to perform the job.  

There is a middle ground, somewhere before the employee is out for a year or two but not before the employee has had an opportunity to recover from an ADA type illness.  The EEOC will attempt to find that middle ground when they issue new regulations regarding leave as an accommodation. 

Most cases currently find that absences of 1 year, 1,5 years are too long.  Once an employee has been out that long, many judges have found that he/she is not capable of performing a key function of every job, attendance.  If the employee cannot perform the function of attendance, then that employee is not entitled to accommodation.  But, how long is too long for an employee to be out?  Send your comments to: Commissionmeetingcomments@eeoc.gov.  The EEOC is working on regulations to provide needed guidance.  Government regs always work better when they have some grounding in real life. 

 Wal-Mart has famously, perhaps infamously opposed union organization in its stores.  They have survived the very few union elections that have been held.  But, they may not survive the latest effort to improve working conditions at Wal-Mart stores.  Organization United for Respect at Wal-Mart (OUR Wal-Mart) does not seek to form a union, but does seek to improve working conditions.  See Workplace Prof report.  The group claims to have thousands of members and will soon have a web site and Facebook page.  They seek to improve the low pay, benefits and simply to gain more respect. 

The group receives some union financial support and in the end, may be a better fit for Wal-Mart workers. 

The Texas Supreme Court has ruled that stock options will indeed support a non-compete agreement.  See last week’s Texas Supreme Court opinion in Marsh USA Inc. v. Cook.

I previously wrote about this case here and here.  The Dallas appeals court had found in 2009 that stock options would not support a covenant not to compete.  There must be some binding promise by the employer, such as to provide trade secrets to support a covenant not to compete, said the appellate court.  The Marsh USA decision now overrules this Dallas appellate court opinion.  

Our state difffers from many states which simply require compensation or money to make a non-compete agreement binding.  The law in Texas has been more restrictive, requiring that a promise regarding proprietary information to the employee would be necessary to make a non-compete binding.

Non-compete agreements have historically been seen as a restraint on free trade.  If an employee could leave a job and take proprietary information, then that employee could start a new business with such information.  Employers needed a way to provide confidential information to employees without fearing they were creating new competition.  So, the Texas Covenants Not to Compete Act was passed.  The CNCA imposes limits on how such agreements can be enforced.

With this latest decision, the Supreme Court has continued its gradual trend toward making non-compete agreements easier to enforce.  Stock options are now sufficient consideration for a non-compete agreement.  Stock options, said the court, reasonably relate to an employer’s good will and encourage an employee to continue in his/her employment.  The Texas Supreme Court has taken another step toward making non-compete agreements less restrictive.  The majority opinion notes and welcomes this shift.  As the dissent points out, if stock options can encourage an employer’s goodwill (a requirement under the Covenants Not to Compete Act), then simple compensation may also provide the necessary consideration.

Three justices dissented, while a fourth issued a concurring decision.  It was a close vote.  But, with this decision, Texas becomes more and more a corporate world and less and less an entrepreneurial world.