A federal judge in Iowa has ordered a company based in Texas to pay $1.76 million to former mentally disabled workers at a turkey plant.  The US Department of Labor was granted a partial summary judgment against Hill Country Farms doing business as Henry’s Turkey Service.  Henry’s housed the mentally disabled men in a dilapidated bunkhouse – which was eventually closed by the Fire Marshall. 

The judge’s decision says the employer failed to pay the men in accordance with the Fair Labor Standards Act.  See San Antonio Express-News report.  The company violated the minimum wage and overtime provisions of the FLSA.  The mentally ill men, in their 50’s and 60’s lived in the bunkhouse with boarded up windows and space heaters for heat.  Henry’s charged for room and board – the amount went up each year, while the wages remained the same.  The employer paid no more than $65 per week for each worker for some 20 years.  The amount was apparently based on the maximum amount allowed under Social Security regulations that would not trigger a decrease in benefits.  Yet, the men worked 40 hours per week and more.  See second San Antonio Express-News report. 

The judge ordered the employer to pay $881,000 in back wages and an equal amount in liquidated damages for a total of $1.76 million. 

in a separate action, the EEOC has also filed suit alleging discrimination and harassment against the 31 men. 

It takes a cold employer to abuse the most vulnerable in our society. 

A city planner, Trent Cantrell, for the East Texas town of Lufkin was fired.  He had tweeted that the city was an "armpit."  Earlier, he had tweeted that he was waiting for the heat to leave – of course, "Deep East Texas would still be a sh**hole," he said.  The City Manager said they do not condone such comments.  See San Antonio Express News report. 

Think before you tweet…..

Worker’s compensation protects employees who suffer on-the-job injuries.  The worker’s compensation scheme was devised back in the 1920’s and 1930’s as a way to prevent lawsuits against employers.  The intent was to provide some modest level of compensation for workers who get injured.  In return, employees would give up the right to file personal injury lawsuits against their employer.  Employers would then avoid unpredictable lawsuits which could result in large verdicts.  

Over time it became necessary to provide incentives for employers not to take action against employees who file worker’s compensation claims.  The Texas Labor Code provides for a lawsuit based on worker’s compensation retaliation.  See Sec. 451 of the Texas Labor Code.  If a worker suffers reprisal for filing a worker’s compensation claim, then that worker can sue the employee for retaliation. 

In recent years, the Texas courts have limited the worker’s comp protections.  In the 1990’s, for example, the Texas Supreme Court addressed the situation concerning employers who are not enrolled in the Texas Worker’s Compensation System but who do have some sort of health insurance for workers who get injured.  These employers are considered to be "self-insured" for purposes of worker’s comp insurance.  Would such employers be subject to the anti-retaliation provision?  No, said the Texas Supreme Court.   Such employers are not included in Sec. 451.  That is, if an employer is self-insured, they can fire an employee who files a on-the-job injury health claim.  Firing such an employee would not be retaliation under Sec. 451.  See Texas Mexican Railway Co. v. Bouchet, 963 S.w.2d 52 (Texas 1998). 

Now, the Texas Supreme Court has held that local governmental subdivisions are not covered by Sec. 451 either.  In fact, they have overruled their prior decision to the contrary, City of La Porte v. Barfield, 898 S.W.2d 288 (Tex. 1995).   In this new decision, the Supreme Court has found that Sec. 451 did not waive governmental immunity, after all.  See Travis Central Appraisal District v. Norman, No. 09-0100 (Tex. 4/29/2011).  The Court bases its decision on some amendments to Sec. 504, a companion article, which, in the view of the Court, retracted prior waiver of governmental immunity. 

Governments must waive immunity to be sued.  That is a precept as old as the United States.  So, now, according to the Texas Supreme Court, the state legislature did not waive governmental immunity.   Government workers can now suffer retaliation if they pursue their right to file a worker’s compensation claim.  

You know its bad when a judge orders a debt collector not to contact a debtor, her friends or family on Facebook.  Melanie Meacham filed suit over MarkOne Financial’s debt collection practices in Pinellas County District Court – near Orlando, Florida.  See ABA Bar Journal report.  MarkOne declined to respond, but stated last year apparently when the lawsuit first started that it resorts to Facebook only when conventional means of contacting a debtor have failed.  You know they must have contacted a bunch of folks before a judge orders them to stop…..

 A Dallas personal injury firm has seized on the social media revolution to market its Facebook page.  Eberstein and Witherite offered iPad’s to a lucky few and t-shirts if the participants would "like" its Facebook page and submit photos of themselves wearing its 1800 Car Wreck t-shirts.  See Texas Lawyer report.  Clicking on the link to win the iPad takes the participant to the firm website.  The site has a page where the "likers" can describe their recent car wreck and learn the value of a possible case.  

As of early April 14, they had 463 Facebook "like’s."  You gotta love the internet….

 The EEOC has filed suit against an oil rig construction company doing business in Texas and Mississippi.  The EEOC filed suit against Signal International LLC in Gulfport, Mississippi on behalf of indian workers recruited for US work on an H-2B visa.  The workers were recruited to come here to work as welders and pipefitters in Pascagoula, Mississippi and Orange, Texas.  Signal says they needed the workers in the aftermath of Hurricane Katrina when workers were scarce.  See San Antonio Express News report.  The workers came here from 2006 through 2007.  The suit seeks class certification. 

The suit claims discrimination based on ethnic origin and retaliation.  Some of the workers began seeing lawyers in 2007 regarding their conditions.  They were subjected to harsh language, unsanitary living conditions.  Their living area was surrounded by a fence and the immigrants were sometimes searched before entering.  In response to the workers seeing lawyers, Signal rounded up five workers and sent them home to India.  

I presume the "harsh" language refers to racial epithets.  Otherwise, such language would not be relevant to a lawsuit based on discrimination and retaliation. 

Some workers filed suit in 2008 alleging human trafficking and racketeering.  Assisted by the Southern Povery Law Center, that earlier suit is still pending. 

As always, discrimination lawsuits can be problematic.  But, retaliation suits are much easier for the worker to win.  Employers should not take reprisal for workers seeking their rights under Title VII.  That only makes the situation worse. 

 A former Hondo, Texas resident was killed in Afghanistan.  Assigned to the 10th Mountain Division, SPC Charles "Chaz" J. Wren was killed in Nimroz Province in southwestern Afghanistan.  SPC Wren spent most of his life in Hondo and graduated from Hondo High School in 2004.  He was known at Hondo High for wearing a cape to pep rallies and getting the crowd excited.  See San Antonio Express News report. 

He was killed along with two other soldiers by an IED (Improvised Explosive Device).  SPC Wren lead a difficult life.  Orphaned early, he was raised by his grandmother.  He was known for his sense of humor. 

Texas Workforce Commission appears almost designed to undermine legitiimate employee claims for unemployment benefits.  I receive one or two calls every year from recipients of unemployment benefits who were overpaid unemployment benefits through TWC errors and now, TWC wants their money back.  TWC essentially tells them to pay it back or else.  

One young man called me from out of state saying he did disclose his part-time job.  TWC continued to pay him benefits.  Then, after many months, they realized their error and threatened him with suit if he did re-pay some $7,500 in overpaid benefits.  I had to explain to him that it would cost him close to $7,500 to pay me to represent him regarding this error. 

More, recently, I heard from a woman who was paid some $14,000 in benefits erroneously, but not erroneously.  That is, when she was hired for a job, she signed an agreement saying she would not apply for unemployment benefits if she was ever fired.  Well, she was fired after a few years.  She applied for unemployment benefits and received them.  TWC later found she was not entitled to benefits.  They accused her of fraud and demanded she re-pay the benefits.  She eventually had a telephone hearing and this time, TWC found the employer at fault.  So, the fired employee should receive unemployment benefits, after all. 

So, now she is eligible for benefits.  But, TWC will not pay her benefits unless she first re-pays the $14,000.  Of course, she is unemployed and does not have an extra $14,000.  Talk about Catch-22.  To get benefits, she must first re-pay the benefits to which she was entitled, after all.  Makes my head spin….

I helped a lady with an unemployment claim appeal last year.  She was required to call in each week to "register" for benefits.  If she did not call in, she would not receive benefits that week.  She called into TWC over and over for two weeks and could never get through.  The line was always busy.  Since she could never get through, she was never able to collect unemployment for those two weeks.  She appealed.  She testified that she could never get through.  There was no testimony to the contrary.  But, the TWC judge ruled against her on that one issue. 

The lady with the $14,000 issue had the same experience.  She tried to get advice from TWC regarding this issue in December and January and never could get past the busy signal.  She finally reached someone in February. 

I previously wrote about the appeals division at TWC.  I talked about the head of the appeals division at TWC advising employers on how to "game the system."  The head of the appeals division told employers at a conference that they could avoid unemployment claims through subterfuge.  See prior post.  So, yes, it almost appears that TWC is a system designed to avoid paying valid claims for unemployment benefits.  Same old, same old…..

 

 A former employee has sued the State Bar of Texas alleging discrimination based on his disability.  The former employee was a lawyer for some 15 years with the State bar.  He claims he suffered no problems at work until he disclosed that he suffered from Tarsal Tunnel Syndrome, the foot equivalent of Carpal Tunnel Syndrome, and other related illnesses.  Montgomery Miller says he was fired in September, 2010, two weeks after disclosing his illness.  

Without knowing more, yes, this does sound like a good case for the employee plaintiff.  The Bar better have some good write-ups showing performance issues.  Termination within weeks of disclosure puts the employer in a very bad position for a lawsuit.  Not many juries will believe that a 15 year employee suddenly started performing poorly immediately after disclosing an illness. 

The employee of an Illinois law firm was fired when he refused to cooperate in issuing fraudulent bills to clients.  The law firm claimed the hours performed by an in-hpuse employee were actually performed by an outside investigator.  The firm then billed at the higher rates used by outside investigators.  One of the in-house investigators, however, refused to cooperate in altering his invoice to reflect the higher rates.  He was then fired.  See Workplace Prof report.  

An Illinois appellate court ruled that the firing did not violate any public policy in that state.  Sad to say, but the same result would probably obtain in Texas.  There is no law in Texas protecting an employee from reprisal for simply being honest.  There is no law protecting a private sector employee from reprisal for even reporting violations of law by their employer.  In Texas, this lawsuit would not be a whistle blower lawsuit since the employee did not report violations of law to a law enforcement agency. 

The law firm, Karlin & Fleisher, will surely suffer from bad publicity.  But, how many more Karlin and Fleishers are there out there who do not get sued?